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CHASE COMMERCIAL MORTGAGE SECURITIES CORP.,
Depositor
GE CAPITAL LOAN SERVICES, INC.,
Servicer
LEND LEASE ASSET MANAGEMENT, L.P.,
Special Servicer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of June 10, 2000
$738,733,448
Chase Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2000-2
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms..................................................4
Section 1.02 Certain Calculations..........................................51
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans and Loan REMIC Interests.........52
Section 2.02 Acceptance by Trustee.........................................55
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in
Mortgage Files and Breaches of Representations and
Warranties...................................................56
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.........................................59
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 Mortgage
Loans........................................................60
Section 3.02 Collection of Mortgage Loan Payments..........................62
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts...........................................63
Section 3.04 The Certificate Account, the Lower-Tier and
Upper-Tier Distribution Accounts and the Excess
Interest Distribution Account................................66
Section 3.05 Permitted Withdrawals From the Certificate Account
and the Distribution Accounts................................69
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account and the REO Account.................73
Section 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage..............................75
Section 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements...................................................77
Section 3.09 Realization Upon Defaulted Mortgage Loans.....................79
Section 3.10 Trustee to Cooperate; Release of Mortgage Files...............82
Section 3.11 Servicing Compensation........................................83
Section 3.12 Inspections; Collection of Financial Statements...............86
Section 3.13 Annual Statement as to Compliance.............................89
Section 3.14 Reports by Independent Public Accountants.....................89
Section 3.15 Access to Certain Information.................................90
Section 3.16 Title to REO Property; REO Account............................90
Section 3.17 Management of REO Property....................................91
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties...........94
Section 3.19 [Intentionally Omitted.]......................................96
Section 3.20 Modifications, Waivers, Amendments and Consents...............96
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report...............100
Section 3.22 Sub-Servicing Agreements.....................................103
Section 3.23 Representations, Warranties and Covenants of the
Servicer....................................................106
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer............................................107
Section 3.25 Interest Reserve Account.....................................109
Section 3.26 Excess Interest Distribution Account.........................109
Section 3.27 Lease Enhancement Policies...................................110
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................111
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s....................................119
Section 4.03 P&I Advances.................................................124
Section 4.04 Allocation of Collateral Support Deficit.....................125
Section 4.05 Appraisal Reductions.........................................126
Section 4.06 Certificate Deferred Interest................................126
Section 4.07 Grantor Trust Reporting......................................127
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................128
Section 5.02 Registration of Transfer and Exchange of Certificates........129
Section 5.03 Book-Entry Certificates......................................136
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............139
Section 5.05 Persons Deemed Owners........................................139
Section 5.06 Appointment of Paying Agent..................................139
ARTICLE VI
THE DEPOSITOR, THE
SERVICER, THE SPECIAL SERVICER And the directing certificateholder
Section 6.01 Liability of the Depositor, the Servicer and the
Special Servicer............................................141
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Servicer or the Special Servicer........................141
Section 6.03 Limitation on Liability of the Depositor, the
Servicer, the Special Servicer and Others...................141
Section 6.04 Depositor, Servicer and Special Servicer Not to
Resign......................................................143
Section 6.05 Rights of the Depositor in Respect of the Servicer
and the Special Servicer....................................144
Section 6.06 Rating Agency Fees...........................................144
Section 6.07 The Directing Certificateholder..............................144
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.................................................147
Section 7.02 Trustee to Act; Appointment of Successor.....................151
Section 7.03 Notification to Certificateholders...........................152
Section 7.04 Waiver of Events of Default..................................153
Section 7.05 Trustee as Maker of Advances.................................153
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................154
Section 8.02 Certain Matters Affecting the Trustee........................155
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans...............156
Section 8.04 Trustee May Own Certificates.................................157
Section 8.05 Fees and Expenses of Trustee; Indemnification of
Trustee.....................................................157
Section 8.06 Eligibility Requirements for Trustee.........................157
Section 8.07 Resignation and Removal of the Trustee.......................158
Section 8.08 Successor Trustee............................................159
Section 8.09 Merger or Consolidation of Trustee...........................160
Section 8.10 Appointment of Co-Trustee or Separate Trustee................160
Section 8.11 Appointment of Custodians....................................161
Section 8.12 Access to Certain Information................................161
Section 8.13 Representations and Warranties of the Trustee................163
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................165
Section 9.02 Additional Termination Requirements..........................167
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.........................................168
Section 10.02 Depositor, Servicer and Special Servicer to Cooperate
with Paying Agent...........................................172
Section 10.03 Use of Agents................................................173
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................174
Section 11.02 Recordation of Agreement; Counterparts.......................176
Section 11.03 Limitation on Rights of Certificateholders...................176
Section 11.04 Governing Law................................................177
Section 11.05 Notices......................................................177
Section 11.06 Severability of Provisions...................................178
Section 11.07 Grant of a Security Interest.................................178
Section 11.08 Successors and Assigns; Beneficiaries........................179
Section 11.09 Article and Section Headings.................................179
Section 11.10 Notices to the Rating Agencies...............................179
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 B Certificate
Exhibit A-4 Form of Class C Certificate
Exhibit A-5 Form of Class D Certificate
Exhibit A-6 Form of Class E Certificate
Exhibit A-7 Form of Class F Certificate
Exhibit A-8 Form of Class G Certificate
Exhibit A-9 Form of Class H Certificate
Exhibit A-10 Form of Class I Certificate
Exhibit A-11 Form of Class J Certificate
Exhibit A-12 Form of Class K Certificate
Exhibit A-13 Form of Class L Certificate
Exhibit A-14 Form of Class M Certificate
Exhibit A-15 Form of Class X Certificate
Exhibit A-16 Form of Class R Certificate
Exhibit A-17 Form of Class LR Certificate
Exhibit A-18 Form of Class S 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 [Intentionally Omitted]
Exhibit F Form of Request for Release
Exhibit G Form of ERISA Representation Letter
Exhibit H Form of Statement to Certificateholders
Exhibit I Form of Omnibus Assignment
Exhibit J Form of Operating Statement Analysis Report
SCHEDULES
Schedule 1 Computerized Database Information
Schedule 2 Mortgage Loans Containing Additional Debt
Schedule 3 Mortgage Loans which represent over 2% of the Initial
Pool Balance
Schedule 4 Mortgage Loans which Initially Pay Interest Only
Schedule 5 Mortgage Loans which are Not Defeasance Loans
This Pooling and Servicing Agreement (the "Agreement"), is dated and
effective as of June 10, 2000, among Chase Commercial Mortgage Securities Corp.,
as Depositor, GE Capital Loan Services, Inc., as Servicer, Lend Lease Asset
Management, L.P., as Special Servicer, and Norwest Bank Minnesota, National
Association, 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 commercial and
multifamily mortgage loans (the "Mortgage Loans"). As provided herein, the
Paying Agent shall elect or shall cause an election to be made to treat the
Trust Fund (exclusive of the Excess Interest, the Excess Interest Distribution
Account and the Loan REMIC Residual Interest) for federal income tax purposes as
two separate real estate mortgage investment conduits (the "Upper-Tier REMIC"
and the "Lower-Tier REMIC", and each, a "REMIC").
The Depositor intends that the Colorado Square Loan be held as an
asset of a single-loan REMIC (the "Loan REMIC"), that the Loan REMIC Regular
Interest be held as an asset of the Lower-Tier REMIC, and that the Loan REMIC
Residual Interest be held by the Trustee on behalf of the Holders of the Class
LR Certificates. The portion of the Trust Fund consisting of the Excess
Interest, the Excess Interest Distribution Account and the Loan REMIC Residual
Interest shall be treated as a grantor trust (the "Grantor Trust") for federal
income tax purposes. The Class LR Certificates and the Class S Certificates will
represent the sole interests in the Grantor Trust for federal income tax
purposes.
The following table sets forth the designation, the pass-through rate (the
"Pass-Through Rate"), the aggregate initial principal amount (the "Original
Certificate Balance") or Notional Amount ("Original Notional Amount"), as
applicable, and the initial ratings given each Class by the Rating Agencies (the
"Original Ratings") for each Class of Certificates comprising the interests in
the Upper-Tier REMIC created hereunder:
UPPER-TIER REMIC
Class Pass-Through Rate Original Original Rating
Designation (per annum) Certificate Balance Xxxxx'x/Fitch(1)
----------- ----------------- ------------------- ----------------
Class A-1 7.5430% $118,980,000 Aaa/AAA
Class A-2 7.6310% $442,457,420 Aaa/AAA
Class B 7.7820% (2) $26,779,086 Aa2/AA
Class C 7.9280% (2) $34,166,423 A2/A
Class D 8.0240% (2) $12,004,419 A3/A-
Class E 8.1222% (3) $23,085,420 Baa2/BBB
Class F 8.1222% (3) $12,927,835 Baa3/*
Class G 6.6500% $12,927,835 Ba1/*
Class H 6.6500% $18,468,337 Ba2/*
Class I 6.6500% $5,540,501 Ba3/*
Class J 6.6500% $7,387,334 B1/*
Class K 6.6500% $7,387,335 B2/*
Class L 6.6500% $3,693,667 B3/*
Class M 6.6500% $12,927,835 */*
Class X (4) (5) Aaa/AAA
Class R None
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(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) The Pass-Through Rate for any Distribution Date for each of the Class B,
Class C and Class D, Certificates will be the lesser of (i) 7.7820%, 7.9280%
and 8.0240% per annum, respectively and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date. The Pass-Through Rates for the
Class B, Class C and Class D Certificates for the first Distribution Date
are approximately 7.7820%, 7.9280% and 8.0240% per annum, respectively.
(3) The Pass-Through Rate for any Distribution Date for the Class E and Class F
Certificates will be the Weighted Average Net Mortgage Rate for such
Distribution Date minus 0.15% per annum. The Pass-Through Rate for each of
the Class E and Class F Certificate for the first Distribution Date is
approximately 8.1222%
(4) The Pass-Through Rate for any Distribution Date for the Class X Certificates
will be the Class X Pass-Through Rate. The Pass-Through Rate of the Class X
Certificates for the first Distribution Date is approximately 0.6966% per
annum.
(5) The Class X Certificates will not have a Certificate Balance and will not be
entitled to receive distributions of principal. Interest will accrue on the
Components of such Class at the Component Pass-Through Rates thereof on the
Notional Amounts thereof. The Notional Amount of each Component for any
Distribution Date will be equal to the Lower-Tier Principal Amount of the
respective Uncertificated Lower-Tier Interest for such Distribution Date,
which will be equal to the Certificate Balance of the Related Certificates
as of the preceding Distribution Date (after giving effect to the
distribution of principal and allocation of Collateral Support Deficit on
such Distribution Date) or, in the case of the first Distribution Date, the
Cut-off Date. The original Notional Amount of the Class X Certificates is
$738,733,447.
(6) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Prepayment Premiums or Yield Maintenance Charges. Any Available Distribution
Amount remaining in the Upper-Tier Distribution Account, after all required
distributions under this Agreement have been made to each other Class of
Certificates, will be distributed to the Holders of the Class R
Certificates.
The Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class I, Class J, Class K, Class L, Class M and Class 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-1,
Class LA-2, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class
LH, Class LI, Class LJ, Class LK, Class LL and Class LM 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 and
the Loan REMIC Residual Interest 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 and the Class LR Certificates:
LOWER-TIER REMIC
Class Original Lower-Tier
Designation Interest Rate Principal Amount
----------- ------------- ----------------
Class LA-1 (1) $118,980,000
Class LA-2 (1) $442,457,420
Class LB (1) $26,779,086
Class LC (1) $34,166,423
Class LD (1) $12,004,419
Class LE (1) $23,085,420
Class LF (1) $12,927,835
Class LG (1) $12,927,835
Class LH (1) $18,468,337
Class LI (1) $5,540,501
Class LJ (1) $7,387,334
Class LK (1) $7,387,335
Class LL (1) $3,693,667
Class LM (1) $12,927,835
Class LR None(2) None(2)
--------------
(1) The interest rate for each Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Prepayment Premiums or Yield Maintenance Charges. Any Available Distribution
Amount constituting assets of the Loan REMIC or remaining in the Lower-Tier
Distribution Account after distributing the Lower-Tier Distribution Amount
shall be distributed to the Holders of the Class LR Certificates (but only
to the extent of the Available Distribution Amount for such Distribution
Date, if any, remaining in the Loan REMIC or the Lower-Tier Distribution
Account, as applicable).
As of close of business on the Cut-off Date, the Mortgage 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 $738,733,448.
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.
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Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Certificates (other than the Class S Certificates, Class
X Certificates and the Residual 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 outstanding immediately prior to such
Distribution Date (provided, that for interest accrual purposes any
distributions in reduction of Certificate Balance or reductions in Certificate
Balance as a result of allocations of Collateral Support Deficit on the
Distribution Date occurring in an Interest Accrual Period shall be deemed to
have been made on the first day of such Interest Accrual Period). With respect
to any Distribution Date and the Class X Certificates, an amount equal to
interest for the related Interest Accrual Period at the Pass-Through Rate for
such Class for such Interest Accrual Period on the Notional Amount of such Class
(provided, that for interest accrual purposes any distributions in reduction of
Notional Amount or reductions in Notional Amount as a result of allocations of
Collateral Support Deficit on the Distribution Date occurring in an Interest
Accrual Period shall be deemed to have been made on the first day of such
Interest Accrual Period). Accrued Certificate Interest shall be calculated on
the basis of a 360-day year consisting of twelve 30-day months.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 2 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Administrative Cost Rate": The sum of the Servicing Fee Rate and
the Trustee Fee Rate, in each case computed on the basis of the Stated Principal
Balance of the related Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(g).
"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(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Prepayment Date": With respect to any Mortgage Loan
that is indicated on the Mortgage Loan Schedule as having a Revised Rate, the
date upon which such Mortgage Loan commences accruing interest at such Revised
Rate.
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York and the State of Maryland; and (b) such other state or local tax laws whose
applicability shall have been brought to the attention of the Trustee and the
Paying Agent by either (i) an opinion of counsel delivered to it, or (ii)
written notice from the appropriate taxing authority as to the applicability of
such state or local tax laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
calculated by the Special Servicer on or prior to the first Determination Date
following the date the Special Servicer receives or performs such Appraisal
equal to the excess, if any, of (a) the Stated Principal Balance of such
Mortgage Loan over (b) the excess of (i) the sum of (A) 90% of the Appraised
Value of the related Mortgaged Property as determined (1) by one or more
Appraisals (the costs of which shall be paid by the Servicer as an Advance) with
respect to any Mortgage Loan (together with any other Mortgage Loan
cross-collateralized with such Mortgage Loan) with an outstanding principal
balance equal to or in excess of the lesser of $2,000,000 or 2% of the
then-current aggregate Stated Principal Balance of the Mortgage Loans or (2) by
an internal valuation performed by the Special Servicer with respect to any
Mortgage Loan (together with any other Mortgage Loan cross-collateralized with
such Mortgage Loan) with an outstanding principal balance less than the lesser
of $2,000,000 or 2% of the then-current aggregate Stated Principal Balance of
the Mortgage Loans and (B) all escrows, letters of credit and reserves in
respect of such Mortgage Loan over (ii) the sum of, as of the Due Date occurring
in the month of such Distribution Date, (A) to the extent not previously
advanced by the Servicer or Trustee, all unpaid interest on such Mortgage Loan
at a per annum rate equal to its Mortgage Rate, (B) all unreimbursed Advances
and interest thereon at the Reimbursement Rate in respect of such Mortgage Loan
and (C) all currently due and unpaid real estate taxes, assessments, insurance
premiums and ground rents and all other amounts due and unpaid with respect to
such Mortgage Loan (which taxes, premiums, ground rents and other amounts have
not been subject to an Advance by the Servicer or the Trustee, as applicable);
provided, however, without limiting the Special Servicer's obligation to order
and obtain such Appraisal, if the Special Servicer has not obtained the
Appraisal or valuation, as applicable, referred to above within 90 days of the
Appraisal Reduction Event (or with respect to the reduction event set forth in
Clause (ii) of the definition of Appraisal Reduction Event, within such 120 days
set forth therein), the amount of the Appraisal Reduction shall be deemed to be
an amount equal to 25% of the current Stated Principal Balance of the related
Mortgage Loan until such time as such appraisal or valuation referred to above
is received and the Appraisal Reduction is calculated. Within 90 days after the
Appraisal Reduction Event, the Special Servicer shall order and receive an
Appraisal (the cost of which shall be paid as a Servicing Advance); provided,
however, that with respect to an Appraisal Reduction Event as set forth in
clause (ii) of the definition of Appraisal Reduction Event, the Special Servicer
shall order and receive such Appraisal within the 120 day period set forth in
such clause (ii), which Appraisal shall be delivered by the Special Servicer to
the Servicer, the Trustee and the Paying Agent and the Paying Agent shall
deliver such Appraisal to each Holder of a Class F, Class G, Class H, Class I,
Class J, Class K, Class L and Class M Certificate within 15 days of receipt or
preparation by Special Servicer.
With respect to each Mortgage Loan as to which an Appraisal
Reduction has occurred (unless such Mortgage Loan has become a Corrected
Mortgage Loan and has remained current for twelve consecutive Monthly Payments
(for such purposes taking into account any amendment or modification of such
Mortgage Loan)), the Special Servicer shall, (a) within 30 days of each annual
anniversary of the related Appraisal Reduction Event, (b) at such time as the
Special Servicer has notice of a material change in the condition of the related
Mortgaged Property or (c) at such time as the Special Servicer has notice of a
material defect in such Appraisal, order 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, the Special Servicer shall
redetermine and report to the Paying Agent and the Trustee the amount of the
Appraisal Reduction with respect to such Mortgage Loan and such redetermined
Appraisal Reduction shall replace the prior Appraisal Reduction with respect to
such Mortgage Loan. Notwithstanding the foregoing, the Special Servicer will not
be required to obtain an Appraisal with respect to a Mortgage Loan which is the
subject of an Appraisal Reduction Event to the extent the Special Servicer has
obtained an Appraisal or valuation, as applicable, 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 or valuation, as applicable, in calculating any
Appraisal Reduction with respect to such Mortgage Loan; provided the Special
Servicer is not aware of any material change to the related Mortgaged Property
that has occurred that would affect the validity of such appraisal or valuation,
as applicable.
Any Mortgage Loan previously subject to an Appraisal Reduction which
becomes a Corrected Mortgage Loan and remains current for twelve consecutive
Monthly Payments (for such purposes taking into account any amendment or
modification of such Mortgage Loan), and with respect to which no other
Appraisal Reduction Event has occurred and is continuing, will no longer be
subject to an Appraisal Reduction.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan or the related REO Property will
be reduced to zero as of the date such Mortgage Loan is paid in full,
liquidated, repurchased or otherwise removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution Date,
(i) with respect to the Certificates, an amount equal to the product of (a) the
applicable per annum Pass-Through Rate on the Class of Certificates to which the
Appraisal Reduction is allocated (or each such Pass-Through Rate if such
Appraisal Reduction is allocated to more than one such Class), and (b) the sum
of all Appraisal Reductions with respect to such Distribution Date (or, if such
Appraisal Reduction is allocated to more than one Class of Certificates, the
portion thereof allocated to each such Class) or (ii) with respect to each
Mortgage Loan for such Distribution Date, an amount equal to the product of (a)
the applicable per annum Pass-Through Rate on the Class of Certificates to which
the Appraisal Reduction is allocated (or each such Pass-Through Rate if such
Appraisal Reduction is allocated to more than one such Class), and (b) the
Appraisal Reduction with respect to such Mortgage Loan with respect to such
Distribution Date.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) the third anniversary of the date on which the first extension
of the Maturity Date of such Mortgage Loan becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer pursuant to the terms
hereof, which extension does not decrease the amount of Monthly Payments on the
Mortgage Loan, (ii) 120 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan, (iii)
the date on which a reduction in the amount of Monthly Payments on such Mortgage
Loan, or a change in any other material economic term of such Mortgage Loan
(other than an extension of the Maturity Date), becomes effective as a result of
a modification of such Mortgage Loan by the Special Servicer, (iv) the date on
which a receiver has been appointed, (v) 60 days after a Mortgagor declares
bankruptcy, (vi) 60 days after the date on which an involuntary petition of
bankruptcy is filed with respect to a Mortgagor, (vii) 30 days after an uncured
delinquency occurs in respect of a Balloon Payment with respect to a Mortgage
Loan unless the borrower has delivered to the Servicer on the related Maturity
Date a written refinancing commitment reasonably satisfactory in form and
substance to the Servicer which provides that such refinancing will occur within
60 days and (viii) immediately after a Mortgage 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) has 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 Mortgage Loan made by an Independent MAI appraiser selected by the
Servicer or Special Servicer, as applicable.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any modification of such Mortgage Loan, and
(b) interest on the Stated Principal Balance of such Mortgage Loan at the
applicable 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": With respect to any Distribution
Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Trust Fund on deposit in
the Certificate Account and the Lower-Tier Distribution Account
(exclusive of any investment income contained therein) as of the
close of business on the Business Day preceding the related P&I
Advance Date, exclusive of (without duplication):
(i) all Monthly Payments paid by the Mortgagors that are 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 Mortgage Loan during the related
Due Period), Liquidation Proceeds or Insurance and
Condemnation Proceeds received after the end of the related
Due Period;
(iii) all amounts payable or reimbursable to any Person from the
Certificate Account pursuant to clauses (ii) - (xvi),
inclusive, and clause (xviii) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from the
Lower-Tier Distribution Account pursuant to clauses (ii) -
(v), inclusive, of Section 3.05(b);
(v) Excess Interest;
(vi) all Prepayment Premiums and Yield Maintenance Charges;
(vii) all amounts deposited in the Certificate Account or the
Lower-Tier Distribution Account, as the case may be, in
error; and
(viii) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period
ending in (1) each January or (2) any December 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 Mortgage 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
amounts are to be deposited in the Interest Reserve Account
and held for future distribution pursuant to Section 3.25;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to the
Certificate Account for such Distribution Date pursuant to
Section 3.16(c);
(c) the aggregate amount of any P&I Advances made 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 the Mortgage Loans for which such P&I Advances are
made); and
(d) for the Distribution Date occurring in each March, the Withheld
Amounts remitted to the Lower-Tier Distribution Account pursuant
to Section 3.25(b).
Notwithstanding the investment of funds held in the Certificate Account pursuant
to Section 3.06, for purposes of calculating the Available Distribution Amount,
the amounts so invested shall be deemed to remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage 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 Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"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 New York, New York, the State of Texas, the office
of the Certificate Registrar or the city and state in which the Corporate Trust
Office of the Trustee or principal place of business of the Servicer or the
Special Servicer is located, are authorized or obligated by law or executive
order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2000-2, 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. Any such account or accounts shall
be an Eligible Account.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates, the Class S Certificates and the Class 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)). The Certificate Balance of the Loan
REMIC Regular Interest corresponds to the Stated Principal Balance of the
Colorado Square Loan.
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates, the amount of Mortgage Deferred Interest
allocated to such Class pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to 8
places, the numerator of which is the then related Certificate Balance, and the
denominator of which is the related Original Certificate Balance.
"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.
"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 either 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, so long as
there is no Event of Default with respect to the Servicer or the Special
Servicer, 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
shall not apply to the exercise of the Special Servicer's rights (or the
Servicer's rights, if any) or any of their Affiliates as a member of the
Controlling Class. The Trustee shall be entitled to request and 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.
"Chase": The Chase Manhattan Bank.
"Chase Sub-Servicing Agreement": As defined in Section 3.22(c).
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the Certificates or Uncertificated Lower-Tier
Interests bearing the same alphabetical (and, if applicable, numerical) Class
designation.
"Class A Certificate": Any Class A-1 or Class A-2 Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto.
"Class A-1 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LA-1
Uncertificated Interest.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 7.5430%.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto.
"Class A-2 Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LA-2
Uncertificated Interest.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 7.6310%.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-3 hereto.
"Class B Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LB
Uncertificated Interest.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage
Rate and (ii) 7.7820%.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-4 hereto.
"Class C Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LC
Uncertificated Interest.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage
Rate and (ii) 7.9280%.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-5 hereto.
"Class D Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LD
Uncertificated Interest.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) the Weighted Average Net Mortgage
Rate and (ii) 8.0240%.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-6 hereto.
"Class E Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LE
Uncertificated Interest.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate less 0.15%.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-7 hereto.
"Class F Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LF
Uncertificated Interest.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate less 0.15%.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-8 hereto.
"Class G Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LG
Uncertificated Interest.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 6.6500%.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-9 hereto.
"Class H Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LH
Uncertificated Interest.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 6.6500%.
"Class I Certificate": A Certificate designated as "Class I" on the
face thereof, in the form of Exhibit A-10 hereto.
"Class I Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LI
Uncertificated Interest.
"Class I Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 6.6500%.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-11 hereto.
"Class J Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LJ
Uncertificated Interest.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 6.6500%.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-12 hereto.
"Class K Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LK
Uncertificated Interest.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 6.6500%.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-13 hereto.
"Class L Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LL
Uncertificated Interest.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 6.6500%.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-14 hereto.
"Class M Component": With respect to the Class X Certificates, at
any date of determination, that portion of the Notional Amount of the Class X
Certificates equal to the Lower-Tier Principal Amount of the Class LM
Uncertificated Interest.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 6.6500%.
"Class LA-1 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 LL 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 LM 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-17 hereto.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-16 hereto.
"Class S Certificate": A Certificate designated as "Class S" on the
face thereof, in the form of Exhibit A-18 hereto.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Regular Certificates, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class for the immediately
preceding Distribution Date and (ii) any outstanding Class Unpaid Interest
Shortfall payable to such Class on such preceding Distribution Date over (b) the
aggregate amount in respect of interest actually distributed to such Class on
such immediately preceding Distribution Date. The Class Unpaid Interest
Shortfall with respect to any Class of Certificates as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificate": A Certificate designated as "Class X" on the
face thereof, in the form of Exhibit A-15 hereto.
"Class X Notional Amount": For any date of determination, a notional
amount equal to the aggregate of the Lower-Tier Principal Amounts of the
Uncertificated Lower-Tier Interests as of the preceding Distribution Date (after
giving effect to the distributions of principal on such Distribution Date), and
in the case of the first Distribution Date, as of the Closing Date.
"Class X Pass-Through Rate": A per annum rate equal to the weighted
average of the Pass-Through Rates on the Class A-1 Component, the Class A-2
Component, the Class B Component, the Class C Component, the Class D Component,
the Class E Component, the Class F Component, the Class G Component, the Class H
Component, the Class I Component, the Class J Component, the Class K Component,
the Class L Component and the Class M Component (each, a "Component Pass-Through
Rate"), weighted on the basis of their respective Notional Amounts. The
Component Pass-Through Rate on the Class A-1 Component is a per annum rate equal
to the Weighted Average Net Mortgage Rate minus the Class A-1 Pass-Through Rate.
The Component Pass-Through Rate on the Class A-2 Component is a per annum rate
equal to the Weighted Average Net Mortgage Rate minus the Class A-2 Pass-Through
Rate. The Component Pass-Through Rate on the Class B Component is a per annum
rate equal to the Weighted Average Net Mortgage Rate minus the Class B
Pass-Through Rate. The Component Pass-Through Rate on the Class C Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class C
Pass-Through Rate. The Component Pass-Through Rate on the Class D Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class D
Pass-Through Rate. The Component Pass-Through Rate on the Class E Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class E
Pass-Through Rate. The Component Pass-Through Rate on the Class F Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate Minus the Class F
Pass-Through Rate. The Component Pass-Through Rate on the Class G Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class G
Pass-Through Rate. The Component Pass-Through Rate on the Class H Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class H
Pass-Through Rate. The Component Pass-Through Rate on the Class I Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class I
Pass-Through Rate. The Component Pass-Through Rate on the Class J Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class J
Pass-Through Rate. The Component Pass-Through Rate on the Class K Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class K
Pass-Through Rate. The Component Pass-Through Rate on the Class L Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class L
Pass-Through Rate. The Component Pass-Through Rate on the Class M Component is a
per annum rate equal to the Weighted Average Net Mortgage Rate minus the Class M
Pass-Through Rate.
"Closing Date": June 28, 2000.
"CMSA": the Commercial Mortgage Securities Association.
"CMSA Investor Reporting Package (IRP)": The monthly report to be
prepared by the Servicer and delivered to the Trustee, the Paying Agent, the
Special Servicer, the Depositor and each Rating Agency pursuant to Section
4.02(b), in electronic medium, which electronic medium is reasonably acceptable
to the Paying Agent and the Servicer, containing such information as is set
forth in Section 4.02(b) regarding the Mortgage Loans and such other information
as will permit the Paying Agent to calculate the amounts to be distributed
pursuant to Section 4.01 and to furnish or make available statements to
Certificateholders pursuant to Section 4.02 and containing such additional
information as the Servicer, the Special Servicer and the Paying Agent may from
time to time agree.
"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.
"Colorado Square Loan": The Mortgage Loan identified as Loan No. 30
on the Mortgage Loan Schedule.
"Commission": The Securities and Exchange Commission.
"Component": Any of the Class A-1 Component, the Class A-2
Component, the Class B Component, the Class C Component, the Class D Component,
the Class E Component, the Class F Component, the Class G Component, the Class H
Component, the Class I Component, the Class J Component, the Class K Component,
the Class L Component and the Class M Component.
"Component Pass-Through Rate": Has the meaning set forth in the
definition of Class X Pass-Through Rate.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates then outstanding that has a then
aggregate Certificate Balance at least equal to 25% of the initial Certificate
Balance of such Class of Certificates. As of the Closing Date, the Controlling
Class will be the Class M 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 by such Holder (or
Certificate Owner).
"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 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Administrator, Ref. Chase
Commercial Mortgage Securities Corp., Series 2000-2, (telecopy number (410)
884-2372).
"Corrected Mortgage Loan": Any Specially Serviced Mortgage 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
Mortgage Loan), and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer) the Special Servicer has returned
servicing of such Mortgage Loan to the Servicer pursuant to Section 3.21(a).
"Credit File": Any documents, other than documents required to be
part of the related Mortgage File, in the possession of the Servicer and
relating to the origination and servicing of any Mortgage 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, either of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": June 10, 2000.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage 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 Mortgage 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 Mortgage Loan
during such period, provided, that with respect to the Mortgage Loans indicated
on Schedule 4, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the amortization schedule
indicated on Schedule 4).
"Default Interest": With respect to any Mortgage Loan which is in
default pursuant to the terms of the related Mortgage Loan Documents for any
related Due Period, all interest accrued in respect of such Mortgage Loan during
such Due Period provided for in the related Mortgage Note or Mortgage as a
result of the related default (exclusive of late payment charges) that is in
excess of interest at the related Mortgage Rate accrued on the unpaid principal
balance of such Mortgage Loan outstanding from time to time during such Due
Period.
"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days
delinquent in respect of its Balloon Payment, if any, in either case such
delinquency to be determined without giving effect to any grace period permitted
by the related Mortgage or Mortgage Note and without regard to any acceleration
of payments under the related Mortgage and Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Mortgage 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 Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.01(a).
"Denomination": As defined in Section 5.01(a).
"Depositor": Chase Commercial Mortgage Securities Corp., a New York
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
11th day of the month in which such Distribution Date occurs, or if such 11th
day is not a Business Day, the immediately succeeding Business Day.
"Directing Certificateholder": The Controlling Class
Certificateholder selected by more than 50% of the Controlling Class
Certificateholders, 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 a majority of the Controlling Class Certificateholders, by
Certificate Balance, that a Directing Certificateholder is no longer designated,
the Controlling Class Certificateholder that owns the largest aggregate
Certificate Balance of the Controlling Class will be the Directing
Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or the performance of any construction work
on the REO Property (other than the completion of a building or improvement,
where more than 10% of the construction of such building or improvement was
completed before default became imminent), other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance or makes decisions as to repairs or
capital expenditures with respect to such REO Property or takes other actions
consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
"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 any of the Upper-Tier REMIC, the Lower-Tier
REMIC or the Loan 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.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates, the Accrued
Certificate Interest in respect of such Class of Regular Certificates for such
Distribution Date, reduced (to not less than zero) by any allocations to such
Class of Certificates (other than in the case of the Class X Certificates) of
any Certificate Deferred Interest for such Distribution Date.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account and the Lower-Tier Distribution Account.
"Distribution Date": The 15th day of any month, or if such 15th day
is not a Business Day, the Business Day immediately following, provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date in the month in which such Distribution
Date occurs, commencing in July 2000.
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment thereon is scheduled to be first due, (ii) any
Mortgage Loan after the Maturity Date therefor, the day of the month set forth
in the related Mortgage Note on which each Monthly Payment on such Mortgage Loan
had been scheduled to be first due, and (iii) any REO Loan, the day of the month
set forth in the related Mortgage Note on which each Monthly Payment on the
related Mortgage Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan, the period commencing on the day immediately succeeding the Due Date
occurring in the month preceding the month in which such Distribution Date
occurs and ending on and including the Due Date occurring in the month in which
such Distribution Date occurs. Notwithstanding the foregoing, in the event that
the last day of a Due Period (or applicable grace period) is not a Business Day,
any payments received with respect to the Mortgage 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) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee) (1) the long-term unsecured debt obligations of
which are rated at least (A) "AA-" by Fitch, or, if not rated by Fitch, at least
"AA-" or its equivalent by another nationally recognized statistical rating
agency if the deposits are to be held in such account 30 days or more and (B)
"Aa3" by Moody's, or (2) or the short-term debt obligations of which have a
short-term rating of not less than "F-1+" from Fitch, or, if not rated by Fitch,
at least "F-1+" or its equivalent by another nationally recognized statistical
rating agency if the deposits are to be held in such account for less than 30
days and "P-1" from Moody's, 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, (ii) a segregated account or accounts maintained with Bankers
Trust Company so long as it is rated at least "Aa3" by Moody's and "AA-" by
Fitch, or, if not rated by Fitch, at least "AA-" or its equivalent by another
nationally recognized statistical rating agency or (iii) 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. ss. 9.10(b).
Eligible Accounts may bear interest. No Eligible Account shall be evidenced by a
certificate of deposit, passbook or other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, (i) Chapter 5 of the Xxxxxx Xxx Multifamily Guide
or any successor provisions covering the same subject matter, in the case of
Specially Serviced Mortgage Loans 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 Mortgage Loans as to which the related Mortgaged
Property is a non-multifamily property, and including investigation of lead
based paint, radon and asbestos.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"Escrow Payment": Any payment received by the Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents 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 Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan after the Anticipated Prepayment Date allocable to
the Excess Rate, including all interest accrued thereon. The Excess Interest
shall not be an asset of the Loan REMIC, 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 account or accounts by the Paying
Agent pursuant to Section 3.04(c), which shall be entitled "The Chase Manhattan
Bank, as Paying Agent, in trust for the registered Holders of Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2000-2, Excess Interest Distribution Account," and which must be an Eligible
Account. The Excess Interest Distribution Account shall not be an asset of the
Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, 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.
"Xxxxxx Xxx": Xxxxxx Xxx or any successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"Final Recovery Determination": A good faith reasonable
determination by the Special Servicer with respect to any Defaulted Mortgage
Loan or REO Property (other than a Mortgage Loan or REO Property, as the case
may be, that was purchased by either Mortgage Loan Seller pursuant to Section 3
of the applicable Mortgage Loan Purchase Agreement, by the Majority Controlling
Class Certificateholder, the Special Servicer or the Servicer pursuant to
Section 3.18(b), or by the Special Servicer, the Holders of the Controlling
Class, the Servicer or the Holders of the Class LR Certificates pursuant to
Section 9.01) that there has been a recovery of all Insurance and Condemnation
Proceeds, Liquidation Proceeds, REO Revenue and other payments or recoveries
that, in the Special Servicer's 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, Inc., and its successors in interest.
"Xxxxxxx Mac": Xxxxxxx Mac or any successor.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of the Loan REMIC Residual Interest, the Excess Interest and amounts
held from time to time in the Excess Interest Distribution Account.
"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.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Trustee, the Depositor, the
Servicer, the Special Servicer, the Directing Certificateholder 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 Trustee, the
Depositor, the Servicer, the Special Servicer, the Directing Certificateholder
or any Affiliate thereof and (iii) is not connected with the Trustee, the
Depositor, the Servicer, the Special Servicer, the Directing Certificateholder
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 Trustee, 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
securities issued by the Trustee, the Depositor, the Servicer, the Special
Servicer, the Directing Certificateholder 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 within the meaning of Section
856(d)(3) of the Code if the Trust 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 does not receive or derive any income from such Person and provided
that the relationship between such Person and the Trust is at arm's length, all
within the meaning of Treasury Regulations 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.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"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 or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards.
"Insurance Policy": With respect to any Mortgage 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 Mortgage Loan or the
related Mortgaged Property.
"Interest Accrual Period": With respect to any Class of Regular
Certificates or Uncertificated Lower-Tier Interests and any Distribution Date,
the period beginning on the first day of the calendar month preceding the
calendar month in which the related Distribution Date occurs and ending on the
last day of the calendar month preceding the calendar month in which such
Distribution Date occurs, calculated assuming that each month has 30 days and
each year has 360 days.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates for any Distribution Date, an amount equal to the sum of the
Distributable Certificate Interest and the Class Unpaid Interest Shortfall with
respect to such Class of Regular Certificates for such Distribution Date.
"Interest Reserve Account": The trust account created and maintained
by the Paying Agent pursuant to Section 3.25 in the name of "The Chase Manhattan
Bank, as Paying Agent, in trust for the registered holders of Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2000-2, Interest Reserve Account", into which the amounts set forth in Section
3.25 shall be deposited directly and which must be an Eligible Account.
"Interest Reserve Loans": The Actual/360 Mortgage Loans; provided,
that in the case of the Colorado Square Loan, the term "Interest Reserve Loan"
shall refer to the Loan REMIC Regular Interest.
"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).
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Due Period (or the related grace 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 Mortgage 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 recovered. With respect to any REO Loan, all amounts
received in connection with the related REO Property during any Due Period
(including any grace 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 Mortgage Loan (without regard to any acceleration of
amounts due under the predecessor Mortgage Loan by reason of default) on a Due
Date in a previous Due Period and not previously recovered. The term "Late
Collections" shall specifically exclude Penalty Charges.
"Lease Enhancement Policy": A non-cancelable credit tenant lease
enhancement insurance policy that insures against certain losses, such as lease
termination and rent abatement events, arising out of casualty or condemnation
of the related Mortgaged Property.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 3
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Majority Controlling Class Certificateholder, the Special
Servicer or the Servicer pursuant to Section 3.18(b); or (v) such Mortgage Loan
is purchased by the Special Servicer, the Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates pursuant to
Section 9.01. With respect to any REO Property (and the related REO Loan), any
of the following events: (i) a Final Recovery Determination is made with respect
to such REO Property or (ii) such REO Property is purchased by the Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates pursuant to Section 9.01.
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan as to which the Special
Servicer receives a full or discounted payoff (or an unscheduled partial payment
to the extent such prepayment is required by the Special Servicer as a condition
to a modification of the terms of the related Mortgage Loan) with respect
thereto from the related Mortgagor or any Liquidation Proceeds with respect
thereto (in any case, other than amounts for which a Workout Fee has been paid,
or will be payable), 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)
attributable to principal related to such liquidated Specially Serviced Mortgage
Loan, as the case may be; provided, however, that no Liquidation Fee shall be
payable with respect to clauses (iii)(A), (iv) or (v) of the definition of
Liquidation Proceeds.
"Liquidation Fee Rate": A rate equal to 1.0%.
"Liquidation Proceeds": Cash amounts (other than Insurance and
Condemnation Proceeds and REO Revenues) received by or paid to the Servicer or
the Special Servicer in connection with: (i) the liquidation of a Mortgaged
Property or other collateral constituting security for a defaulted Mortgage
Loan, through trustee's sale, foreclosure sale, REO Disposition or otherwise,
exclusive of any portion thereof required to be released to the related
Mortgagor in accordance with applicable law and the terms and conditions of the
related Mortgage Note and Mortgage; (ii) the realization upon any deficiency
judgment obtained against a Mortgagor; (iii) (A) the purchase of a Defaulted
Mortgage Loan by the Majority Controlling Class Certificateholder, the Special
Servicer or the Servicer pursuant to Section 3.18(b) or (B) any other sale
thereof pursuant to Section 3.18(c); (iv) the repurchase of a Mortgage Loan by
the applicable Mortgage Loan Seller pursuant to Section 3 of the related
Mortgage Loan Purchase Agreement; or (v) the purchase of a Mortgage Loan or REO
Property by the Holders of the Controlling Class, the Special Servicer, the
Servicer or the Holders of the Class LR Certificates pursuant to Section 9.01.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, the fraction, expressed as a percentage, the numerator of
which is the scheduled principal balance of such Mortgage Loan at the time of
determination, and the denominator of which is the Original Value of the related
Mortgaged Property.
"Loan REMIC": The REMIC constituted by the Colorado Square Loan.
"Loan REMIC Declaration": That certain REMIC Declaration dated May
31, 2000 with respect to the Colorado Square Loan.
"Loan REMIC Interests": Collectively, the Loan REMIC Residual
Interest and the Loan REMIC Regular Interest.
"Loan REMIC Regular Interest": The uncertificated "regular
interest," within the meaning of Code Section 860G(a)(1), in the Loan REMIC
issued pursuant to the Loan REMIC Declaration. The principal balance of the Loan
REMIC Regular Interest shall equal the principal balance of the Colorado Square
Loan (or, if applicable, the deemed principal balance of any successor REO Loan)
outstanding from time to time. Payments and other collections of amounts
received on or in respect of the Colorado Square Loan (or any related REO
Property) and allocable (in accordance with Section 1.02) to interest on,
principal of and/or Prepayment Premiums or Yield Maintenance Charges in respect
of such Mortgage Loan (or any successor REO Loan) shall be deemed paid on the
Loan REMIC Regular Interest at the time such amounts are so received. The terms
of the Loan REMIC Regular Interest are otherwise set forth in the Loan REMIC
Declaration.
"Loan REMIC Residual Interest": The uncertificated "residual
interest," within the meaning of Code Section 860G(a)(2), in the Loan REMIC
issued pursuant to the Loan REMIC Declaration.
"Lower-Tier Distribution Account": The segregated account or
accounts created and maintained by the Paying Agent pursuant to Section 3.04(b)
in trust for the Certificateholders, which shall be entitled "The Chase
Manhattan Bank, as Paying Agent, in trust for the registered Holders of Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 0000-0, Xxxxx-Xxxx 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 three separate REMICs comprising the
Trust Fund, the assets of which consist of the Mortgage Loans (exclusive of
Excess Interest), 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,
the Interest Reserve Account and the Lower-Tier Distribution Account, and all
other property included in the Trust Fund that is not in the Upper-Tier REMIC;
provided, that the Colorado Square Loan (exclusive of Excess Interest, if any),
collections thereon and any related REO Property acquired in respect thereof
shall be held as assets of the related Loan REMIC, and the related Loan REMIC
Regular Interest and collections thereon shall be held as assets of the
Lower-Tier REMIC.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date, the
Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Maturity Date": With respect to any Mortgage Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Mortgage Note, after taking into account all Principal
Prepayments received prior to such date of determination, but without giving
effect to (i) any acceleration of the principal of such Mortgage Loan by reason
of default thereunder or (ii) any grace period permitted by the related Mortgage
Note.
"Moody's": Xxxxx'x Investors Service, Inc., and its successors in
interest.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and/or interest on such Mortgage Loan, including
any Balloon Payment, which is payable by a Mortgagor from time to time under the
related Mortgage Note and applicable law, without regard to any acceleration of
principal of such Mortgage Loan by reason of default thereunder and without
respect to any Excess Interest.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee or leasehold interest in the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to any Mortgage Loan, but subject to
Section 2.01, collectively the following documents:
(i) the original Mortgage 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 Mortgage Loan to
the applicable Mortgage Loan Seller, and further endorsed (at the
direction of the Depositor given pursuant to the applicable Mortgage Loan
Purchase Agreement), 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 Norwest Bank Minnesota, National Association, as trustee for the
registered holders of Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2000-2, without
recourse, representation or warranty, express or implied";
(ii) the original Mortgage (or a certified copy thereof from the
applicable recording office) and originals (or certified copies from the
applicable recording office) of any intervening assignments thereof
showing a complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller, in each case with evidence of
recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the Mortgage Loan Seller to "Norwest Bank Minnesota, National
Association, as trustee for the registered holders of Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2000-2";
(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 intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the applicable
Mortgage Loan Seller, in each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form,
executed by the applicable Mortgage Loan Seller to "Norwest Bank
Minnesota, National Association, as trustee for the registered holders of
Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2000-2";
(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 intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the applicable
Mortgage Loan Seller, in each case with evidence of recording thereon;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in recordable form,
executed by the applicable Mortgage Loan Seller to "Norwest Bank
Minnesota, National Association, as trustee for the registered holders of
Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2000-2";
(viii) originals or copies of all consolidation, 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, Mortgage Note or any related security
document have been consolidated or modified or the Mortgage Loan has been
assumed;
(ix) the original lender's title insurance policy or a copy thereof
in connection with the Mortgage 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, an original or copy of a written commitment, interim binder or the
proforma title insurance policy, dated as of the date the related Mortgage
Loan was funded;
(x) the original or copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan and any intervening assignments;
(xi) all UCC Financing Statements and continuation statements or
copies thereof, as filed, or in form that is complete and suitable for
filing or recording, as appropriate, or other evidence of filing
acceptable to the Trustee sufficient to perfect (and maintain the
perfection of) the security interest held by the originator of the
Mortgage 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 or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the Mortgage,
Mortgage Note or other document or instrument referred to above was not
signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional Debt, a
subordination agreement, pursuant to which such Additional Debt will be
fully subordinated to such Mortgage Loan;
(xiv) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground lease,
the related ground lease;
(xvi) with respect to any Mortgage Loan secured by a credit tenant
lease, the related lease;
(xvii) any Lease Enhancement Policies with respect to any Mortgage
Loans secured by a credit tenant lease;
(xviii) the original of any letter of credit securing such Mortgage
Loan; and
(xix) with respect to the Colorado Square Loan, the originals or
copies of the Loan REMIC Declaration;
provided, however, that whenever the term "Mortgage File" is used to refer to
documents held 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 received by the Trustee or a Custodian
appointed thereby.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements.
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage 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
Mortgage Loan:
(i) the loan i.d. number (as specified in Exhibit A to the
Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(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 and (c) Maturity 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 applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(xiii) whether such Mortgage Loan has an Anticipated Prepayment
Date;
(xiv) the Revised Rate of such Mortgage Loan, if any;
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvi) identifying any Mortgage Loans with which such Mortgage Loan
is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan;
(xviii) whether such Mortgage Loan has a guarantor;
(xix) whether such Mortgage Loan is secured by a letter of credit;
and
(xx) whether such Mortgage Loan (a) is a credit tenant lease loan or
(b) is insured by a Lease Enhancement Policy.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) The Chase Manhattan Bank, a New
York banking corporation, or its respective successors in interest and (2)
General Electric Capital Corporation, a New York corporation or its respective
successors in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage 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 Mortgage Loan from time to time in
accordance with the related Mortgage Note and applicable law, exclusive of the
Excess Rate; (ii) any Mortgage Loan after its Maturity Date, the annual rate
described in clause (i) above determined without regard to the passage of such
Maturity Date; provided, however, that if any Mortgage Loan does not accrue
interest on the basis of a 360 day year consisting of twelve 30 day months,
then, solely for purposes of calculating Pass-Through Rates, the Mortgage Rate
of such Mortgage Loan (or the Loan REMIC Regular Interest in the case of the
Colorado Square Loan) for any one-month period preceding a related Due Date will
be the annualized rate at which interest would have to accrue in respect of such
Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day months
in order to produce the aggregate amount of interest actually accrued (exclusive
of Default Interest or Excess Interest) in respect of such Mortgage Loan during
such one-month period at the related Mortgage Rate; provided, however, that with
respect to each Interest Reserve Loan, the Mortgage Rate for the one month
period (A) preceding the Due Dates that occur in January and February in any
year which is not a leap year or preceding the Due Date that occurs in February
in any year which is a leap year, and (B) preceding the Due Date in March, will
be the per annum rate stated in the related Mortgage Note and (iii) any REO
Loan, the annual rate described in clause (i) or (ii), as applicable, above
determined as if the predecessor Mortgage Loan had remained outstanding.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Investment Earnings": With respect to either the Certificate
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 either the Certificate
Account or the REO Account for any period from any Distribution Date to the
immediately succeeding P&I Advance Date, the amount 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 Rate": With respect to any Mortgage Loan, REO Loan
(other than the Colorado Square Loan) or Loan REMIC Regular Interest, as of any
date of determination, a rate per annum equal to the related Mortgage Rate then
in effect, minus the Administrative Cost Rate; provided however, that for
purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any
Mortgage Loan (or the Loan REMIC Regular Interest in the case of the Colorado
Square Loan) will be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the Servicer
or resulting from a bankruptcy, insolvency or similar proceeding involving the
Mortgagor.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" endorsed and
put forth by the Mortgage Bankers Association and the CMSA.
"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 has the right to
renegotiate the terms of such lease.
"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 Mortgage Loan or REO Loan which, in the
reasonable good faith judgment of the 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 Mortgage Loan or REO Loan. The determination by the Servicer or the
Trustee, as applicable, that it has made a Nonrecoverable P&I Advance or that
any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I
Advance, shall be evidenced by an Officer's Certificate delivered to the
Trustee, the Paying Agent and the Depositor, in the case of the Servicer, and to
the Depositor and the Paying Agent, in the case of the Trustee. The Officer's
Certificate shall set forth such determination of nonrecoverability and the
considerations of the 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 Mortgage 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 or would be nonrecoverable.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property which,
in the reasonable good faith judgment of the 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 Mortgage Loan or REO Property. The determination by the Servicer
or the Trustee, as the case may be, that it 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 the Trustee, the Paying Agent, the Special Servicer and the
Depositor, in the case of the Servicer, and to the Depositor and the Paying
Agent, in the case of the Trustee. The Officer's Certificate shall set forth
such determination of nonrecoverability and the considerations of the 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 Mortgage
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 or would be
nonrecoverable.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class F, Class G, Class H, Class I, Class J, Class K, Class
L, Class M, Class S, Class R or Class LR 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 successor
form) 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.
"Notional Amount": In the case of the Class X Certificates, the
Class X Notional Amount. In the case of each Component, the amount set forth in
the applicable definition thereof.
"Offered Certificates": The Class A, Class B, Class C, Class D,
Class E and Class X Certificates.
"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, as the case may be.
"Operating Statement Analysis Report": As defined in Section
3.12(c).
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Servicer or the Special
Servicer, acceptable in form and delivered to the Paying Agent and the Trustee,
except that any opinion of counsel relating to (a) the qualification of the
Upper-Tier REMIC, Lower-Tier REMIC or Loan REMIC as a REMIC, (b) compliance with
the REMIC Provisions, (c) qualification of the Grantor Trust as a grantor trust
or (d) the resignation of the Servicer, the Special Servicer or the Depositor
pursuant to Section 6.04, must be an opinion of counsel who is in fact
Independent of the Depositor, the Servicer or the Special Servicer, as
applicable.
"Original Certificate Balance": With respect to any Class of Regular
Certificates (other than the Class 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 Notional Amount": With respect to the Class X Notional
Amount, the initial Notional Amount thereof as of the Closing Date, 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
Mortgage 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.
"P&I Advance": As to any Mortgage 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 12th day of the month in which such Distribution Date occurs, or if
such 12th day is not a Business Day, the Business Day immediately succeeding
such date.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2 Pass-Through Rate, the Class B Pass-Through Rate, the Class C
Pass-Through Rate, the Class D Pass-Through Rate, the Class E Pass-Through Rate,
the Class F Pass-Through Rate, the Class G Pass-Through Rate, the Class H
Pass-Through Rate, the Class I Pass-Through Rate, the Class J Pass-Through Rate,
the Class K Pass-Through Rate, the Class L Pass-Through Rate, the Class M
Pass-Through Rate and the Class X Pass-Through Rate.
"Paying Agent": The Chase Manhattan Bank, a New York banking
corporation, or any successor appointed thereto pursuant to Section 5.06 or any
successor paying agent appointed hereunder.
"Penalty Charges": With respect to any Mortgage 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, Yield Maintenance Charge or Excess Interest.
"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 Notional Amount, as applicable, of such Class of
Certificates as of the Closing Date. With respect to a Class S or a 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 and which shall not be subject to liquidation prior to maturity:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America,
Xxxxxx Xxx, Xxxxxxx Mac or any agency or instrumentality of the United
States of America, the obligations of which are backed by the full faith
and credit of the United States of America that mature in one year or less
after the date of issuance; provided that any obligation of, or guarantee
by, Xxxxxx Mae or Xxxxxxx Mac, other than an unsecured senior debt
obligation of Xxxxxx Mae or Xxxxxxx Mac, 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 evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or bankers'
acceptances that mature in 1 year or less after the date of issuance and
are issued or held by any depository institution or trust company
(including the Trustee) 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 in the highest rating categories of
each of Moody's and Fitch or such other rating as would not result in the
downgrading, withdrawal or qualification of the then-current rating
assigned by each Rating Agency to any Certificate, as evidenced in
writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of 1 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 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 mature in one year or less from the
date of issuance, which debt obligations are rated in the highest rating
categories of each of Moody's and Fitch or such other rating as would not
result in the downgrading, withdrawal or qualification of the then-current
rating assigned by each Rating Agency to any Certificate as specified in
writing by each of the Rating Agencies; 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) of any corporation or other
entity organized under the laws of the United States or any state thereof
payable on demand or on a specified date maturing in 1 year or less after
the date of issuance thereof and which is rated in the highest rating
category of each of Moody's and Fitch or their equivalent by two
nationally recognized rating agencies;
(vi) money market funds, rated in the highest rating categories of
each of Moody's and 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 (a) the investment shall have a
predetermined fixed dollar of principal due at maturity that cannot vary or
change and (b) 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 the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan 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 any of the Loan REMIC,
the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC under the Code or result
in imposition of a tax on such Loan REMIC, 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.
"Permitted Transferee" Any Person who is a Qualified Institutional
Buyer.
"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.
"Placement Agent": Chase Securities Inc.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount, market discount and premium,
if any, on the Certificates for federal income tax purposes, provided, it is
assumed that each Mortgage Loan with an Anticipated Prepayment Date prepays on
such 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; provided that no amounts
shall be considered Prepayment Premiums until there has been a full recovery of
all principal, interest and other amounts due under the related Mortgage Loan.
"Prime Rate": The "Prime Rate" as 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 determined by the Paying
Agent in its reasonable 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 Paying Agent in its reasonable discretion) as may be in effect from time
to time.
"Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (a) the Principal Shortfall for such
Distribution Date, (b) the Scheduled Principal Distribution Amount for such
Distribution Date and (c) the Unscheduled Principal Distribution Amount for such
Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage 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.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date, the amount, if any, by which (a) the related Principal
Distribution Amount for the preceding Distribution Date, exceeded (b) the
aggregate amount distributed in respect of principal on the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class I, Class J, Class K,
Class L and Class M Certificates for such preceding Distribution Date pursuant
to Section 4.01(a) on such preceding Distribution Date. The Principal Shortfall
for the initial Distribution Date will be zero.
"Prospectus": The Prospectus dated June 12, 2000, as supplemented by
the Prospectus Supplement dated June 22, 2000, relating to the offering of the
Offered Certificates.
"Purchase Price": With respect to any Mortgage Loan (and the related
Loan REMIC Interest) to be purchased by a Mortgage Loan Seller pursuant to
Section 3 of the related Mortgage Loan Purchase Agreement, by the Majority
Controlling Class Certificateholder, the Special Servicer or the Servicer
pursuant to Section 3.18(b), or by the Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates
pursuant to Section 9.01 or to be otherwise sold pursuant to Section 3.18(c), a
price equal to:
(i) the outstanding principal balance of such Mortgage Loan as of
the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage 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; plus
(iii) all related unreimbursed Servicing Advances and accrued and
unpaid interest on related Advances at the Reimbursement Rate, and unpaid
Special Servicing Fees allocable to such Mortgage Loan; plus
(iv) if such Mortgage Loan is being purchased by a Mortgage Loan
Seller pursuant to Section 3 of the applicable 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 Bidder": As defined in Section 7.01(e).
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": (i) With respect to any Mortgage 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 "A" by Fitch (or, if not rated
by Fitch, at least "A-IX" by A.M. Best Company) and "A2" by Xxxxx'x 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 (or, if not rated by Fitch, at least "A-IX" by A.M. Best
Company) and "A2" by Xxxxx'x 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.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and interest due during
or prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less than
the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same Due Date as
the deleted Mortgage Loan; (iv) accrue interest on the same basis as the deleted
Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve
30-day months); (v) have a remaining term to stated maturity not greater than,
and not more than two years less than, the remaining term to stated maturity of
the deleted Mortgage Loan; (vi) have an original Loan-to-Value Ratio not higher
than that of the deleted Mortgage Loan and a current Loan-to-Value Ratio not
higher than the then current Loan-to-Value Ratio of the deleted Mortgage Loan;
(vii) materially comply as of the date of substitution with all of the
representations and warranties set forth in the applicable Mortgage Loan
Purchase Agreement; (viii) have an Environmental Assessment that indicates no
material adverse environmental conditions with respect to the related Mortgaged
Property and which will be delivered as a part of the related Mortgage File;
(ix) have an original Debt Service Coverage Ratio of not less than the original
Debt Service Coverage Ratio of the deleted Mortgage Loan and a current Debt
Service Coverage Ratio of not less than the current Debt Service Coverage Ratio
of the deleted Mortgage Loan; (x) be determined by an Opinion of Counsel (at the
applicable Mortgage Loan Seller's expense) to be a "qualified replacement
mortgage" within the meaning of Section 860G(a)(4) of the Code; (xi) not have a
maturity date after the date three years prior to the Rated Final Distribution
Date; (xii) not be substituted for a deleted Mortgage Loan unless the Trustee
has received prior confirmation in writing by each Rating Agency that such
substitution will not result in the withdrawal, downgrade, or qualification of
the rating assigned by the Rating Agency to any Class of Certificates then rated
by the Rating Agency (the cost, if any, of obtaining such confirmation to be
paid by the applicable Mortgage Loan Seller); (xiii) have a date of origination
that is not more than 12 months prior to the date of substitution; (xiv) have
been approved by the Directing Certificateholder in its reasonable discretion;
provided that the Directing Certificateholder shall cease to have the right to
approve the substitution of a Qualified Substitute Mortgage Loan for a deleted
Mortgage Loan after the aggregate of the outstanding principal balance of all
Qualified Substitute Mortgage Loans which were previously substituted for a
deleted Mortgage Loan exceeds 10% of the aggregate principal balance of all
Mortgage Loans as of the Cut-off Date; (xv) prohibit defeasance within two years
of the Closing Date and (xvi) not be substituted for a deleted Mortgage Loan if
it would result in the termination of the REMIC status of any of the REMICs
established under this Agreement or the imposition of tax on any of such REMICs
other than a tax on income expressly permitted or contemplated to be received by
the terms of this Agreement, as determined by an Opinion of Counsel. Any
Qualified Substitute Mortgage Loan substituted for the Colorado Square Loan
shall be an asset solely of the Loan REMIC. In the event that one or more
mortgage loans are substituted for one or more deleted Mortgage Loans, then the
amounts described in clause (i) shall be determined on the basis of aggregate
principal balances and the rates described in clause (ii) above and the
remaining term to stated maturity referred to in clause (v) above shall be
determined on a weighted average basis. When a Qualified Substitute Mortgage
Loan is substituted for a deleted Mortgage Loan, the applicable Mortgage Loan
Seller shall certify that the Mortgage Loan meets all of the requirements of the
above definition and shall send such certification to the Trustee.
"Rated Final Distribution Date": As to each Class of Certificates,
July 15, 2032, the first Distribution Date after the 24th month following the
end of the amortization term for the Mortgage Loan that, as of the Cut-off Date,
has the longest remaining amortization term.
"Rating Agency": Each of Xxxxx'x and Fitch or their successors in
interest. If neither such rating agency nor any successor remains in existence,
"Rating Agency" shall be deemed to refer to such 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 Xxxxx'x and Fitch herein referenced shall be
deemed to refer to the equivalent ratings of the party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class I, Class J, Class K, Class L, Class
M and Class X Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(e) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate and shall be compounded monthly.
"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 Certificate Lower-Tier Interest
------------------- ----------------------
Class A-1 Certificate Class LA-1 Uncertificated Interest
Class A-2 Certificate Class LA-2 Uncertificated Interest
Class B Certificate Class LB Uncertificated Interest
Class C Certificate Class LC Uncertificated Interest
Class D Certificate Class LD Uncertificated Interest
Class E Certificate Class LE Uncertificated Interest
Class F Certificate Class LF Uncertificated Interest
Class G Certificate Class LG Uncertificated Interest
Class H Certificate Class LH Uncertificated Interest
Class I Certificate Class LI Uncertificated Interest
Class J Certificate Class LJ Uncertificated Interest
Class K Certificate Class LK Uncertificated Interest
Class L Certificate Class LL Uncertificated Interest
Class M Certificate Class LM Uncertificated Interest
"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 temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final 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 "Lend Lease
Asset Management, L.P., as Special Servicer, for the benefit of Norwest Bank
Minnesota, National Association, as trustee, in trust for registered Holders of
Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-2, REO Account." Any such account or accounts shall be
an Eligible Account.
"REO Acquisition": The 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 Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of the Trust
Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and
otherwise has the same terms and conditions as its predecessor Mortgage 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 Mortgage 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 Mortgage Loan as of the date
of the related REO Acquisition. All amounts due and owing in respect of the
predecessor Mortgage 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 Mortgage 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(e) 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 the 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, selling, leasing and
maintaining the related REO Property) shall be treated: first, as a recovery of
accrued and unpaid interest on such REO 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 (exclusive of any portion that constitutes Excess Interest); second, as
a recovery of principal of such REO Loan to the extent of its entire unpaid
principal balance; and third, 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, (i) Yield Maintenance Charges,
Prepayment Premiums and Penalty Charges and (ii) Excess Interest and other
amounts, in that order.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period 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 a nominee thereof for
the benefit of the Certificateholders and the Trustee (as holder of the
Uncertificated Lower-Tier Interests and the Loan REMIC Interests) through
foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer of
the Servicer or the Special Servicer, as applicable, in the form of Exhibit F
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to the initial
Trustee, any Vice President, Assistant Vice President, Assistant Secretary,
corporate trust officer or assistant corporate trust officer in the corporate
trust department of the Trustee and with respect to any successor Trustee, any
officer or assistant officer in the corporate trust department of the Trustee,
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Prepayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the principal portions of (a) all Monthly
Payments (excluding Balloon Payments) due in respect of the Mortgage Loans
during or, if and to the extent not previously received or advanced pursuant to
Section 4.03 in respect of a preceding Distribution Date, prior to, the related
Due Period, and all Assumed Scheduled Payments for the related Due Period, in
each case to the extent either (i) paid by the Mortgagor as of the Business Day
preceding the related P&I Advance Date (and not previously distributed to
Certificateholders) or (ii) advanced by the Servicer or the Trustee, as
applicable, pursuant to Section 4.03 in respect of such Distribution Date, and
(b) all Balloon Payments to the extent received during the related Due Period
(including any applicable grace periods), and to the extent not included in
clause (a) above.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage 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 Mortgage Loan.
"Servicer": GE Capital Loan Services, Inc. and its successor in
interest and assigns, or any successor Servicer appointed as herein provided.
"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, the Trustee or the Special
Servicer, as applicable, in connection with the servicing and administering of
(a) a Mortgage Loan in respect of which a default, delinquency or other
unanticipated event has occurred or as to which a default 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) - (iv) of the definition of "Liquidation
Proceeds", (iv) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including foreclosures and (v) the operation, leasing,
management, maintenance and liquidation of any REO Property. Notwithstanding
anything to the contrary, "Servicing Advances" shall not include allocable
overhead of the Servicer or the Special Servicer, such as costs for office
space, office equipment, supplies and related expenses, employee salaries and
related expenses and similar internal costs and expenses or costs and expenses
incurred by any such party in connection with its purchase of a Mortgage Loan or
REO Property.
"Servicing Fee": With respect to each Mortgage Loan and REO Loan,
the fee payable to the Servicer pursuant to the first paragraph of Section
3.11(a).
"Servicing Fee Rate": A rate equal to the per annum rate set forth
on the Mortgage Loan Schedule under the heading "Servicing Fee Rate", in each
case computed on the basis of the Stated Principal Balance of the related
Mortgage 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 Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by the Servicer and the Special Servicer to
the Paying Agent, the Trustee and the Depositor on the Closing Date as such list
may be amended from time to time thereafter.
"Servicing Released Bid": As defined in Section 7.01(e).
"Servicing Retained Bid": As defined in Section 7.01(e).
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the following events:
(i) a payment default shall have occurred on such Mortgage Loan
other than a Balloon Mortgage Loan at its original maturity date, or if
the original maturity date of such Mortgage Loan has been extended, a
payment default occurs on such Mortgage Loan at its extended maturity
date; provided that, in the case of a Balloon Payment, it shall be a
Servicing Transfer Event if such payment is more than 60 days delinquent
and (i) the Mortgagor has not delivered to the Servicer a written
refinancing commitment on such maturity date reasonably satisfactory in
form and substance to the Servicer or (ii) such Balloon Payment has not
been paid within 60 days of receiving such written refinancing commitment;
or
(ii) any Monthly Payment (other than a Balloon Payment) is 60 days
or more delinquent; or
(iii) the date upon which the Servicer determines that a payment
default is imminent and is not likely to be cured by the related Mortgagor
within 60 days; or
(iv) the date upon which 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, 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, and being entered against the related
Mortgagor; provided that if such decree or order is discharged or stayed
within 60 days of being entered, or if, as to a bankruptcy, the automatic
stay is lifted within 60 days of a filing for relief or the case is
dismissed, such Mortgage Loan shall not be a Specially Serviced Mortgage
Loan (and no Special Servicing Fees, Workout Fees or Liquidation Fees will
be payable with respect thereto); or
(v) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to 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) a default of which the Servicer has notice (other than a
failure by such Mortgagor to pay principal or interest) and which in the
opinion of the Servicer materially and adversely affects the interests of
the Certificateholders has occurred and remained unremedied for the
applicable grace period specified in such Mortgage Loan (or if no grace
period is specified, 60 days); or
(viii) the Servicer has received notice of the foreclosure or
proposed foreclosure of any lien on the related Mortgaged Property.
"Similar Law": As defined in Section 5.02(c).
"Special Servicer": Lend Lease Asset Management, L.P., a Texas
limited partnership, or any successor Special Servicer appointed as herein
provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage 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 Mortgage Loan and each REO Loan, 0.25% per annum computed on the basis
of the Stated Principal Balance of the related Mortgage Loan and on the basis of
a 360-day year with twelve 30-day months.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan, plus (y) any Mortgage Deferred Interest added to
the principal balance of such Mortgage 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
Mortgage Loan after the Cut-off Date, to the extent received from the
Mortgagor or advanced by the Servicer and distributed to
Certificateholders on or before such date of determination;
(ii) all Principal Prepayments received with respect to such
Mortgage 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 Mortgage
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
Mortgage Loan resulting from a Deficient Valuation that occurred prior to
the end of the Due Period for the most recent Distribution Date.
In the case of the Colorado Square Loan, the Stated Principal
Balance thereof shall equal the Certificate Balance of the related Loan REMIC
Regular Interest. With respect to any REO Loan, as of any date of determination,
an amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
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 Mortgage 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 Mortgage 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 (or, if no such
payments or other proceeds are received in connection with such Liquidation
Event, would have been) distributed to Certificateholders.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class I, Class J, Class K, Class L or Class M
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 Mortgage Loans as provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loans as of the date of substitution. In the event that one
or more Qualified Substitute Mortgage Loans are substituted (at the same time)
for one or more deleted Mortgage Loans, the Substitution Shortfall Amount shall
be determined as provided in the preceding sentence on the basis of the
aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans being replaced
and the aggregate Stated Principal Balances of the related Qualified Substitute
Mortgage or Mortgage Loans.
"Successful Servicing Bidder": As defined in Section 7.01(e).
"Successful Sub-Servicing Bidder": As defined in Section 3.22(g).
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Loan REMIC, the Upper-Tier REMIC and the
Lower-Tier REMIC due to its classification as a REMIC under the REMIC
Provisions, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal tax law or Applicable State and Local Tax Law.
"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": The trust created hereby and to be administered hereunder.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the Trust, consisting of: (i) the Mortgage Loans as from time to
time are subject to this Agreement and all payments under and proceeds of such
Mortgage Loans received after the Cut-off Date (other than payments of principal
and interest due and payable on such Mortgage Loans 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, any Servicing Accounts, the Interest Reserve
Account, the Excess Interest Distribution 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 Mortgage Loans; (v) the Loan REMIC
Regular Interest and the Loan REMIC Residual Interest and (vi) the rights of the
Depositor under Sections 2, 3, 8, 9, 10, 11, 12, 13 and 16 of each Mortgage Loan
Purchase Agreement.
"Trustee": Norwest Bank Minnesota, National Association, a national
banking association, in its capacity as trustee and its successors in interest,
or any successor trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(e).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement.
"Trustee Fee Rate": A rate equal to 0.0021% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan as of the
preceding Distribution Date.
"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 XX-0, Xxxxx
XX-0, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH,
Class LI, Class LJ, Class LK, Class LL and Class LM Uncertificated Interests.
"Underwriters": Chase Securities Inc. and Xxxxxxx Xxxxx Xxxxxx Inc.
"Underwritten Debt Service Coverage Ratio": With respect to any
Mortgage 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 12-month period immediately following the Cut-off Date, except with
respect to those Mortgage Loans identified on Schedule 4 where Monthly Payments
pay interest only for a specified period of time set forth in the related
Mortgage Loan documents and then pay principal and interest, but for purposes of
this definition only, shall be assumed to include interest and principal (based
upon the amortization schedule length indicated on Schedule 4).
"Underwritten Net Cash Flow": With respect to any Mortgaged
Property, the estimated annual revenue derived from the use and operation of
such Mortgaged Property, less estimated annual expenses, including operating
expenses (such as utilities, administrative expenses, repairs and maintenance,
tenant improvement costs, leasing commissions, management fees and advertising),
fixed expenses (such as insurance, real estate taxes and, if applicable, ground
lease payments) and replacement reserves and an allowance for vacancies and
credit losses. In calculating Underwritten Net Cash Flow, certain non-operating
items such as depreciation, amortization, partnership distributions, financing
fees and capital expenditures other than applicable reserves, are not included
as expenses.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage 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.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of:
(a) all Principal Prepayments received on the Mortgage Loans during
the related Due Period; and
(b) the principal portions of all Liquidation Proceeds, Insurance
and Condemnation Proceeds and, if applicable, REO Revenues received with
respect to the Mortgage Loans and any REO Loans during the related Due
Period, but in each case only to the extent that such principal portion
represents a recovery of principal for which no advance was previously
made pursuant to Section 4.03 in respect of a preceding Distribution Date.
"Upper-Tier Distribution Account": The segregated account or
accounts created and maintained by the Paying Agent pursuant to Section 3.04(b)
in trust for the Certificateholders, which shall be entitled "The Chase
Manhattan Bank, as Paying Agent, in trust for the registered Holders of Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2000-2, Upper-Tier Distribution Account". Any such account
or accounts shall be an Eligible Account.
"Upper-Tier REMIC": One of the three 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. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State or the District of Columbia, including any entity
treated as a corporation or partnership for federal income tax purposes, an
estate whose income is subject to United States federal income tax regardless of
its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates, and (ii) in the case of any other Class of Regular Certificates a
percentage equal to the product of 96% 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 time, 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 time. None of the Class S Certificates, the Class R Certificates
nor the Class LR Certificates will be entitled to any Voting Rights. 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.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans as of the first day of the related Due Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Due Period (after giving effect to any payments received during any
applicable grace period); provided, that in the case of the Colorado Square
Loan, "Mortgage Loan" shall refer to the Loan REMIC Regular Interest.
"Withheld Amounts": As defined in Section 3.25(a).
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan.
"Workout Fee Rate": A fee of 1.0% of each collection (other than
Excess Interest and Default Interest) of interest and principal (other than any
amount for which a Liquidation Fee would be paid), including (i) Monthly
Payments, (ii) Balloon Payments and (iii) payments (other than those included in
clause (i) or (ii) of this definition) at maturity, received on each Corrected
Mortgage Loan for so long as it remains a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge set forth in the related Mortgage Loan
documents; provided that no amounts shall be considered Yield Maintenance
Payments until there has been a full recovery of all principal, interest and
other amounts due under the related Mortgage Loan.
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 (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the Servicer, the Special Servicer,
the Paying Agent or the Trustee; provided, however, that for purposes of
calculating distributions on the Certificates, Principal Prepayments with
respect to any Mortgage Loan are deemed to be received on the date they
are applied in accordance with the Servicing Standards consistent with the
terms of the related Mortgage Note and Mortgage to reduce the outstanding
principal balance of such Mortgage Loan on which interest accrues.
(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).
(iv) For purposes of calculations required herein, Excess Interest
shall not be added to the outstanding principal balance of the Mortgage
Loans notwithstanding that the related Loan Documents may provide
otherwise.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans and Loan REMIC Interests.
-----------------------------------------------------
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer and convey to the Trustee, without
recourse, for the benefit of the Certificateholders and the Trustee (as holder
of the Uncertificated Lower-Tier Interests and the Loan REMIC Interests) 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 Mortgage
Loans identified on the Mortgage Loan Schedule, (ii) Sections 2, 3, 9, 11, 13
and 16 of each of the Mortgage Loan Purchase Agreements, (iii) the Loan REMIC
Interests and (iv) 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 Mortgage Loans (other than payments of principal and
interest due and payable on the Mortgage Loans on or before the Cut-off Date).
The transfer of the Mortgage Loans and the related rights and property
accomplished hereby is absolute and, notwithstanding Section 11.07, is intended
by the parties to constitute a sale. In connection with the assignment to the
Trustee of Sections 2, 3, 9, 11, 13 and 16 of each of the Mortgage Loan Purchase
Agreements, it is intended that the Trustee get the benefit of Sections 8, 10
and 12 thereof in connection with any exercise of rights under such assigned
Sections, and the Depositor shall use its best efforts to make available to the
Trustee the benefits of Sections 8, 10 and 12 in connection therewith. The
Paying Agent shall administer the Loan REMIC in accordance with Section 10.01(c)
hereof.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, with copies to the Servicer. If the applicable
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original Mortgage Note, such Mortgage Loan Seller shall
deliver a copy or duplicate original of such Mortgage Note, together with an
affidavit certifying that the original thereof has been lost or destroyed and
indemnifying the Trustee. If the applicable Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage 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
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied on a provisional basis as of the Closing Date as
to such non-delivered document or instrument, 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
applicable 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
appointed thereby 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, in the case of the documents and/or
instruments referred to in clause (ii) of the definition of "Mortgage File," 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 such
Custodian within 180 days of the Closing Date (or within such longer period
after the Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the applicable Mortgage Loan Seller is, as
certified in writing to the Trustee no less often than every 90 days, in good
faith attempting to obtain from the appropriate county recorder's office such
original or photocopy). If the applicable Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage 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 applicable Mortgage
Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied as to such non-delivered document or instrument, 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 in the case of the
documents and/or instruments referred to in clause (ii) of the definition of
"Mortgage File" 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 on or before the Closing Date.
Neither the Trustee nor any Custodian shall in any way be liable for any failure
by such Mortgage Loan Seller or the Depositor to comply with the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b). If, on the Closing Date as to any Mortgage Loan, the applicable
Mortgage Loan Seller cannot deliver in complete and recordable form any one of
the assignments in favor of the Trustee referred to in clauses (iii), (v), (vii)
or (xi) of the definition of "Mortgage File" solely because of the
unavailability of recording information as to any existing document or
instrument, such Mortgage Loan Seller may provisionally satisfy the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to such Mortgage Loan on the Closing Date an
omnibus assignment of such Mortgage Loan substantially in the form of Exhibit I;
provided that all required original assignments with respect to such Mortgage
Loan, in fully complete and recordable form, are delivered to the Trustee or its
Custodian within 180 days of the Closing Date (or within such longer period as
the Trustee in its discretion may permit). Notwithstanding anything herein to
the contrary, with respect to the documents referred to in clause (xviii) of the
definition of Mortgage File, the Servicer shall be permitted to hold the
original of such document in trust on behalf of the Trustee in order to draw on
such letter of credit and the applicable Mortgage Loan Seller shall be deemed to
have satisfied the delivery requirements of the related Mortgage Loan Purchase
Agreement and this Section 2.01(b) by delivering with respect to such document a
copy thereof to the Trustee together with an Officer's Certificate of the
Mortgage Loan Seller certifying that such document has been delivered to the
Servicer. The applicable Mortgage Loan Seller shall pay any costs of assignment
of such letter of credit required in order for the Servicer to draw on such
letter of credit.
(c) Except under the circumstances provided for in the last sentence
of this subsection (c), the Trustee, at the related Mortgage Loan Seller's
expense, shall as to each Mortgage Loan, promptly (and in any event within 75
days of the later of the Closing Date and the Trustee's actual receipt of the
related documents) cause to be submitted for recording or filing, as the case
may be, in the appropriate public office for real property records or UCC
Financing Statements, as appropriate, each assignment to the Trustee referred to
in clauses (iii), (v) and (vii) of the definition of "Mortgage File" and each
UCC-3 to the Trustee referred to in clause (xi) of the definition of "Mortgage
File." Each such assignment shall reflect that it should be returned by the
public recording office to the Trustee or its designee following recording, and
each such UCC-3 shall reflect that the file copy thereof should be returned to
the Trustee or its designee following filing. If any such document or instrument
is determined to be incomplete or not to meet the filing requirements of the
jurisdiction in which it is recorded or filed, or is lost or returned unrecorded
or unfiled, as the case may be, because of a defect therein on or about 180 days
after the Closing Date, the Trustee shall prepare or cause to be prepared at the
expense of the related Mortgage Loan Seller a substitute therefor or cure such
defect, as the case may be, and thereafter the Trustee shall upon receipt
thereof cause the same to be duly recorded or filed, as appropriate.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii), (v) or (vii) of the
definition of "Mortgage File," or to file any UCC-3 to the Trustee referred to
in clause (xi) of the definition of "Mortgage File," in those jurisdictions
where, in the written opinion of local counsel (which opinion shall not be an
expense of the Trustee or the Trust Fund) acceptable to the Depositor and the
Trustee, such recordation and/or filing is not required to protect the Trustee's
interest in the related Mortgage Loans against sale, further assignment,
satisfaction or discharge by the related Mortgage Loan Seller, the Servicer, the
Special Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage 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 together with
copies of all documents in each Mortgage File, shall be delivered to the
Servicer on or before the Closing Date and shall be held by the Servicer on
behalf of the Trustee in trust for the benefit of the Certificateholders (and as
holder of the Uncertificated Lower-Tier Interests and the Loan REMIC Interests).
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Servicer, on or before
the Closing Date, a fully executed original counterpart of each of the Mortgage
Loan Purchase Agreements, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans in
the name of the applicable Mortgage Loan Seller or any other name to be
transferred to the Servicer (or a Sub-Servicer) for deposit into Servicing
Accounts.
Section 2.02 Acceptance by Trustee.
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(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 Section 2.01 and the further review provided for in this Section
2.02 and to any exceptions noted on the Trustee Exception Report, of the
applicable documents specified in clause (i) of the definition of "Mortgage
File" with respect to each Mortgage Loan, of a fully executed original
counterpart of each of the Mortgage Loan Purchase Agreements, of the Loan REMIC
Regular Interest 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 Sellers
constituting the Mortgage Files, and that it holds and will hold such other
assets included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf shall review each of the Mortgage Loan documents delivered or
caused to be delivered by the Mortgage Loan Sellers constituting the Mortgage
Files; and, promptly following such review (but in no event later than 90 days
after the Closing Date), the Trustee shall certify in writing to each of the
Rating Agencies, Depositor, the Servicer, the Special Servicer, the Directing
Certificateholder (provided it shall have identified itself, and furnished to
the Trustee a notice address for the delivery of such certificate) and the
Mortgage Loan Sellers that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full) and except as specifically
identified in any exception report annexed thereto, (i) all documents specified
in clauses (i) through (v), (ix) through (xii) and (xvi) through (xviii) (or,
with respect to clause (xviii), a copy of such letter of credit and an officer's
certificate as contemplated by the penultimate sentence of Section 2.01(b)
hereof), if any, of the definition of "Mortgage File", as applicable, are in its
possession, (ii) the foregoing documents delivered or caused to be delivered by
the Mortgage Loan Sellers have been reviewed by it or by a Custodian on its
behalf and appear regular on their face and relate to such Mortgage 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 (iii) (other than zip code), (iv), (vi) and (viii)(c) in
the definition of "Mortgage Loan Schedule" is correct. With respect to each
Mortgage Loan listed on an exception report, the Trustee shall specifically
identify such Mortgage Loan together with the nature of such exception (in the
form reasonably acceptable to the Trustee and the Mortgage Loan Seller and
separating items required to be in the Mortgage File but never delivered from
items which were delivered by the Mortgage Loan Seller but are out for recording
and have not been returned by the recorder's office).
(c) The Trustee or a Custodian on its behalf shall review each of
the Mortgage Loan documents received thereby subsequent to the Closing Date;
and, on or about the first anniversary of the Closing Date, the Trustee shall
certify in writing to each of the Depositor, the Servicer, the Special Servicer
and the applicable Mortgage Loan Seller that, as to each Mortgage Loan listed on
the Mortgage Loan Schedule (other than any Mortgage Loan as to which a
Liquidation Event has occurred) or any Mortgage Loan specifically identified in
any exception report annexed thereto (i) all documents specified in clauses (i)
through (v), (ix) through (xii) and (xvi) through (xviii) (or, with respect to
clause (xviii), a copy of such letter of credit and an officer's certificate as
contemplated by the penultimate sentence of Section 2.01(b) hereof), if any, of
the definition of "Mortgage File", as applicable, are in its possession, (ii)
the foregoing documents delivered or caused to be delivered by the Mortgage Loan
Sellers have been reviewed by it or by a Custodian on its behalf and appear
regular on their face and relate to such Mortgage 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 (iii)
(other than zip code), (iv), (vi) and (viii)(c) in 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), (viii), (xiii), (xiv) and (xv) of
the definition of "Mortgage File" exist or are required to be delivered by the
Depositor, the Mortgage Loan Sellers or any other Person or (ii) to inspect,
review or examine any of the documents, instruments, certificates or other
papers relating to the Mortgage Loans delivered to it to determine that the same
are genuine, enforceable, sufficient to perfect and maintain the perfection of a
security interest or appropriate for the represented purpose or that they are
other than what they purport to be on their face and, with respect to the
documents specified in clause (ix), whether the insurance is effective as of the
date of the recordation, whether all endorsements or riders issued are included
in the file or if the policy has not been issued whether any acceptable
replacement document has been dated the date of the related Mortgage Loan
funding.
(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,
subject to Section 2.01(b), not to have been delivered, 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 applicable Mortgage Loan
Seller (and in no event later than 90 days after the Closing Date and every
quarter thereafter, commencing with the quarter ending December 31, 2000 until
June 30, 2002 and annually thereafter as of December 31st), by providing a
written report (the "Trustee Exception Report") setting forth for each affected
Mortgage Loan, with particularity, the nature of such Defect (in form reasonably
acceptable to the Trustee and the Mortgage Loan Seller and separating items
required to be in the Mortgage File but never delivered from items which were
delivered by the Mortgage Loan Seller but are out for recording and have not
been returned by the recorder's office). The Special Servicer shall deliver each
Trustee Exception Report to the Directing Certificateholder upon request.
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
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(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 New York, 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 Mortgage 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 Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
In the case of the Colorado Square Loan, such representations, warranties and
covenants shall also apply to the Loan REMIC Regular Interest.
(b) If any Certificateholder, the Servicer, the Special Servicer,
the Paying Agent 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 Mortgage Loan by the applicable Mortgage
Loan Seller pursuant to, the related Mortgage Loan Purchase Agreement (a
"Breach"), which Defect or Breach, as the case may be, materially and adversely
affects the value of any Mortgage Loan or the interests of the
Certificateholders therein, such Certificateholder, the Servicer, the Special
Servicer, the Paying Agent 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, the Mortgage Loan Sellers, the Paying Agent,
the Trustee and the Directing Certificateholder and shall request that the
applicable Mortgage Loan Seller, not later than the earlier of 90 days from the
applicable Mortgage Loan Seller's receipt of such notice or the Mortgage Loan
Seller's discovery of such Breach, (i) cure such Defect or Breach, as the case
may be, in all material respects, (ii) repurchase the affected Mortgage Loan
(together with the Loan REMIC Interests, if applicable) at the applicable
Purchase Price or in conformity with the applicable Mortgage Loan Purchase
Agreement or (iii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan (and the Loan REMIC Interests, if applicable) (provided
that in no event shall any such substitution occur later than the second
anniversary of the Closing Date) and pay the Servicer for deposit into the
Certificate Account, any Substitution Shortfall Amount in connection therewith;
provided, however, that if such Breach and Defect is capable of being cured but
not within such 90-day period, and the Mortgage Loan Seller has commenced and is
diligently proceeding with the cure of such Breach or Defect within such 90-day
period, the Mortgage Loan Seller shall have an additional 90 days to complete
such cure (or, failing such cure, to repurchase the related Mortgage Loan or
substitute a Qualified Substitute Mortgage Loan) and provided, further, that
with respect to such additional 90-day period the Mortgage Loan Seller shall
have delivered an Officer's Certificate to the Rating Agencies and the Trustee
setting forth the reason such Breach or Defect is not capable of being cured
within the initial 90-day period and what actions the Mortgage Loan Seller is
pursuing in connection with the cure thereof and stating that the Mortgage Loan
Seller anticipates that such Breach or Defect will be cured within the
additional 90-day period. Notwithstanding the foregoing, any Defect or Breach
which causes any Mortgage Loan not to be a "qualified mortgage" (within the
meaning of Section 860G(a)(3) of the Code, without regard to the rule of
Treasury Regulations Section 1.860G-2(f)(2) which causes a defective Mortgage
Loan to be treated as a qualified mortgage) shall be deemed to materially and
adversely affect the interest of Certificateholders therein, and such Mortgage
Loan (and the Loan REMIC Interests, if applicable) shall be repurchased no later
than the earlier of 90 days from the applicable Mortgage Loan Seller's receipt
of a notice of such Defect or Breach or the Mortgage Loan Seller's discovery of
such Breach or Defect. If the affected Mortgage Loan is to be repurchased, the
funds in the amount of the Purchase Price are to be deposited by wire transfer
in the Certificate Account.
(c) In connection with any repurchase of a Mortgage Loan
contemplated by this Section 2.03, the Trustee, the Servicer and the Special
Servicer shall each tender to the applicable Mortgage Loan Seller, upon delivery
to each of the Trustee, the Servicer and the Special Servicer of a trust receipt
executed by the applicable Mortgage Loan Seller, all portions of the Mortgage
File and other documents pertaining to such Mortgage Loan possessed by it, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed or assigned, as the case may be, to
the applicable Mortgage Loan Seller in the same manner as provided in Section 3
of the related Mortgage Loan Purchase Agreement.
(d) Section 3 of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders, or the Trustee on
behalf of the Certificateholders, respecting any Defect 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 each of the Mortgage Loan Purchase Agreements.
(e) The Trustee and the Special Servicer (in the case of Specially
Serviced Mortgage Loans) shall, for the benefit of the Certificateholders and
the Trustee (as holder of the Uncertificated Lower-Tier Interests and the Loan
REMIC Interests), enforce the obligations of the applicable Mortgage Loan Seller
under Section 3 of the applicable 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 the
Trustee or the Special Servicer, as the case may be, would require were it, in
its individual capacity, the owner of the affected Mortgage Loan(s). The Trustee
and the Special Servicer, as the case may be, shall be reimbursed for the
reasonable costs of such enforcement: first, from a specific recovery of costs,
expenses or attorneys' fees against the applicable Mortgage Loan Seller; 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 Mortgage Loans on deposit in the
Certificate Account.
(f) In connection with the repurchase of the Colorado Square Loan
pursuant to or as contemplated by this Section 2.03, the Paying Agent shall
effect a "qualified liquidation" of the Loan REMIC in accordance with the REMIC
Provisions.
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.
-----------------------------------------------------
The Trustee hereby acknowledges the assignment to it of the Mortgage
Loans, the Loan REMIC Regular Interest and the Loan REMIC Residual Interest and,
subject to Sections 2.01 and 2.02, the delivery to it or a Custodian on its
behalf of the Mortgage Files and a fully executed original counterpart of each
of the Mortgage Loan Purchase Agreements, together with the assignment to it of
all other assets included in the Trust Fund. Concurrently with such assignment
and delivery and in exchange therefor, the Trustee (i) acknowledges and hereby
declares that it holds the Loan REMIC Regular Interest on behalf of the
Lower-Tier REMIC and the Holders of the Certificates and holds the Loan REMIC
Residual Interest on behalf of the Holder of the Class LR Certificates, (ii)
acknowledges the issuance of the Uncertificated Lower-Tier Interests to the
Depositor and (iii) acknowledges the authentication and delivery of the Class LR
Certificates to or upon the order of the Depositor, in exchange for the Mortgage
Loans (other than Excess Interest), the Loan REMIC Regular Interest and the Loan
REMIC Residual Interest, receipt of which is hereby acknowledged, and
immediately thereafter, the Trustee acknowledges that it has caused the
Certificate Registrar to execute 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 Mortgage Loans.
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(a) Each of the Servicer and the Special Servicer shall diligently
service and administer the Mortgage Loans it is obligated to service pursuant to
this Agreement on behalf of the Trust and in the best interests of and for the
benefit of the Certificateholders and the Trustee (as holder of the
Uncertificated Lower-Tier Interests and the Loan REMIC Interests) (as determined
by the Servicer or the Special Servicer, as the case may be, in its good faith
and reasonable judgment) in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans, to the extent
consistent with the foregoing, in accordance with the higher of the following
standards of care: (1) in 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 mortgage loans for other
third-party portfolios, giving due consideration to the customary and usual
standards of practice of prudent institutional, multifamily and commercial
mortgage lenders servicing their own mortgage loans and (2) the same care,
skill, prudence and diligence with which the Servicer or the Special Servicer,
as the case may be, services and administers similar mortgage loans owned by the
Servicer or the Special Servicer, as the case may be, with a view to the
maximization of timely recovery of principal and interest on a net present value
basis on the Mortgage Loans or Specially Serviced Mortgage Loans, as applicable,
and the best interests of the Trust and the Certificateholders, as determined by
the Servicer or the Special Servicer, as the case may be, in its reasonable
judgment, but without regard to: (i) any relationship that the Servicer, the
Special Servicer or any Affiliate of the Servicer or the Special Servicer may
have with any Mortgagor, any Mortgage Loan Seller, or any other parties to this
Agreement; (ii) the ownership of any Certificate by the Servicer, the Special
Servicer or any Affiliate of the Servicer or Special Servicer, as applicable;
(iii) the Servicer's obligation to make Advances; (iv) the Servicer's or Special
Servicer's, as the case may be, right to receive compensation for its services
and reimbursement for its costs hereunder or with respect to any particular
transaction; (v) the ownership, servicing or management for others of any other
mortgage loans or mortgaged properties by the Servicer or Special Servicer; and
(vi) any obligation of the Servicer or any of its affiliates (in their capacity
as a Mortgage Loan Seller) to cure a breach of a representation or warranty or
repurchase the Mortgage Loan (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
Mortgage Loans as to which a Servicing Transfer Event has occurred and is
continuing (the "Specially Serviced Mortgage Loans") and (ii) any REO
Properties; provided, that the Servicer shall continue to receive payments and
make all calculations, and prepare, or cause to be prepared, all reports to the
Certificateholders, required hereunder with respect to the Specially Serviced
Mortgage Loans, except for the reports specified herein as prepared by the
Special Servicer, 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 Mortgage Loans 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 or failure by the Special Servicer to
otherwise comply with its obligations hereunder. Each Mortgage Loan that becomes
a Specially Serviced Mortgage 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 Mortgage Loans which are not Specially Serviced Mortgage 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 Mortgage Loans in accordance with Section 3.12.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and applicable law, 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 for which it is responsible 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 Mortgage
Loan it is obligated to service under this Agreement: (i) 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; (ii) 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 (iii) 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 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 liable for any negligence with respect to, or misuse of, any such power
of attorney by the Servicer or the Special Servicer.
(c) To the extent the Servicer is permitted pursuant to the terms of
the related Mortgage Loan documents to exercise its discretion with respect to
any action which requires a confirmation of the Rating Agencies that such action
will not result in the downgrade, withdrawal or qualification of the ratings of
any Class of Certificates, the Servicer shall require the costs of such written
confirmation to be borne by the related Mortgagor. To the extent the terms of
the related Mortgage Loan documents require the Mortgagor to bear the costs of
any confirmation of the Rating Agencies that an action will not result in the
downgrade, withdrawal or qualification of the ratings of any Class of
Certificates, the Servicer shall not waive the requirement that such costs and
expenses be borne by the related Mortgagor.
(d) 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.
(e) The Servicer (or the Special Servicer with respect to Escrow
Payments held by the Special Servicer, if any) shall, to the extent permitted by
the related Mortgage Loan documents and consistent with the Servicing Standards,
permit Escrow Payments to be invested only in Permitted Investments.
Section 3.02 Collection of Mortgage Loan Payments.
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(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 Mortgage 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), provided, that with
respect to the Mortgage Loans that have Anticipated Prepayment Dates, so long as
the related Mortgagor is in compliance with each provision of the related
Mortgage Loan documents, the Servicer and Special Servicer (including the
Special Servicer and in its capacity as a Certificateholder), shall not take any
enforcement action with respect to the failure of the related Mortgagor to make
any payment of Excess Interest, other than requests for collection, until the
maturity date of the related Mortgage Loan or the outstanding principal balance
of such Mortgage Loan has been paid in full; provided, that the Servicer or
Special Servicer, as the case may be, may take action to enforce the Trust
Fund's right to apply excess cash flow to principal in accordance with the terms
of the Loan Documents. 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 Mortgage Loan it is obligated to
service hereunder.
(b) All amounts collected on any Mortgage Loan in the form of
payments from Mortgagors, Insurance and Condemnation Proceeds, Liquidation
Proceeds or payments received under any Lease Enhancement Policies with respect
to any Mortgage Loan shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Note and Mortgage and, in the absence of such express
provisions, shall be applied (after reimbursement to the Servicer and/or the
Trustee for any related Servicing Advances and interest thereon as provided
herein): first, as a recovery of accrued and unpaid interest on such Mortgage
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 Mortgage Loan then due and owing; third, in accordance with
the Servicing Standards, as a recovery of any other amounts due and owing on
such Mortgage Loan, including, without limitation, Penalty Charges, Prepayment
Premiums, Yield Maintenance Charges and Excess Interest and fourth, as a
recovery of principal of such Mortgage Loan to the extent of its entire unpaid
principal balance. Notwithstanding the preceding, such provisions shall not be
deemed to affect the priority of distribution of payments. To the extent that
such amounts are paid by a party other than a Mortgagor, such amounts shall be
deemed to have been paid in respect of a purchase of all or part of the
Mortgaged Property (in the case of Insurance and Condemnation Proceeds or
Liquidation Proceeds), or a payment of rent under a credit tenant lease (in the
case of a Lease Enhancement Policy) and then paid by the Mortgagor under the
Mortgage Loan in accordance with the preceding sentence. Amounts collected on
any REO Loan shall be deemed to be applied in accordance with the definition
thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
and applicable law, the Servicer shall apply all Insurance and Condemnation
Proceeds it receives on a day other than the Due Date to amounts due and owing
under the related Mortgage Loan as if such Insurance and Condemnation Proceeds
were received on the Due Date immediately succeeding the month in which such
Insurance and Condemnation Proceeds were received.
(d) In the event that the Servicer or Special Servicer receives
Excess Interest in any Due Period, or receives notice from the related Mortgagor
that the Servicer or Special Servicer will be receiving Excess Interest in any
Due Period, the Servicer or Special Servicer, as applicable, will promptly
notify the Paying Agent. Subject to the provisions of Section 3.02(a) hereof,
neither the Servicer nor the Special Servicer shall be responsible for any such
Excess Interest not collected after notice from the related Mortgagor.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
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(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 Mortgage Loan documents. Amounts on deposit in Servicing Accounts may only
be invested in accordance with the terms of the related Mortgage Loan documents
or in Permitted Investments. Servicing Accounts shall be Eligible Accounts.
Withdrawals of amounts so deposited from a Servicing Account may be made only
to: (i) effect payment of items for which Escrow Payments were collected 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 Mortgage Loan and as
described below or, if not so required, to the Servicer; (v) withdraw amounts
deposited in error or (vi) clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. As part of its
servicing duties, 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 Mortgage Loan.
(b) The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage 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 premiums and any ground rents payable
in respect thereof. The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage Loans, shall use reasonable efforts
consistent with the Servicing Standard to obtain, from time to time, all bills
for the payment of such items (including renewal premiums) and shall effect
payment thereof from the REO Account or by the Servicer as Servicing Advances
prior to the applicable penalty or termination date and, in any event, prior to
the institution of foreclosure or similar proceedings with respect to the
related Mortgaged Property for nonpayment of such items, employing for such
purpose Escrow Payments (which shall be so applied by the Servicer at the
written direction of the Special Servicer in the case of REO Loans) as allowed
under the terms of the related Mortgage Loan. The Servicer or, with respect to
any Mortgage Loan that is a Specially Serviced Mortgage Loan, the Special
Servicer shall service and administer any reserve accounts (including
monitoring, maintaining or changing the amounts of required escrows) in
accordance with the terms of such Mortgage Loan and the Servicing Standards. To
the extent that a Mortgage Loan does not require a Mortgagor to escrow for the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, the Special Servicer, in the case of REO Loans,
and the Servicer, in the case of all other Mortgage Loans, shall use reasonable
efforts consistent with the Servicing Standard to enforce the requirement of the
related Mortgage that the Mortgagor make payments in respect of such items at
the time they first become due and, in any event, prior to the institution of
foreclosure or similar proceedings with respect to the related Mortgaged
Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans, the Servicer shall advance with respect to each related Mortgaged
Property (including any REO Property) 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) and (iii) premiums on Insurance Policies, in each instance if and to
the extent Escrow Payments collected from the related Mortgagor are insufficient
to pay such item when due and the related Mortgagor has failed to pay such item
on a timely basis, and provided, however, that the particular advance would not,
if made, constitute a Nonrecoverable Servicing Advance and provided, further,
however, that with respect to the payment of taxes and assessments, the Servicer
shall not be required to make such advance until the earlier of five Business
Days after the Servicer or the Trustee, as applicable, has received confirmation
that such item has not been paid or 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 no less than five
Business Days' written (facsimile) notice before the date on which the Servicer
is requested to make any Servicing Advance with respect to a given Mortgage Loan
or REO Property. The Special Servicer shall, with respect to any Servicing
Advance required to be made on an emergency or urgent basis (which may include,
without limitation, Servicing Advances required to make tax or insurance
payments) make such advance unless such advance would constitute a
Nonrecoverable Advance. 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 Advance. 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 Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit. The failure by the Servicer to make any required Servicing
Advance as and when due shall constitute an Event of Default under Section
7.01(a)(iii) and, to the extent the Trustee has actual knowledge of such
failure, the Trustee shall make such Servicing Advance pursuant to Section 7.05.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Servicer, and the Servicer shall be obligated, out of
the Servicer's own funds, to reimburse the Special Servicer for any Servicing
Advances (other than Nonrecoverable Servicing Advances) made by but not
previously reimbursed to the Special Servicer, together with interest thereon at
the Reimbursement Rate from the date made to, but not including, the date of
reimbursement. Such reimbursement and any accompanying payment of interest shall
be made within ten days of the request therefor by wire transfer of immediately
available funds to an account designated by the Special Servicer. Upon the
Servicer's reimbursement to the Special Servicer of any Servicing Advance and
payment to the Special Servicer of interest thereon, all in accordance with this
Section 3.03(d), the Servicer shall for all purposes of this Agreement be deemed
to have made such Servicing Advance at the same time as the Special Servicer
actually made such Servicing Advance, and accordingly, the Servicer shall be
entitled to reimbursement for such Servicing Advance, together with interest
thereon in accordance with Section 3.03(e) below at the same time, in the same
manner and to the same extent as the Servicer would otherwise have been entitled
if it had actually made such Servicing Advance at the time the Special Servicer
did.
Notwithstanding the foregoing provisions of this Section 3.03(d),
the Servicer shall not be required to reimburse the Special Servicer for, or to
make at the direction of the Special Servicer, any Servicing Advance if the
Servicer determines in its reasonable, good faith judgment that such Servicing
Advance, although not characterized by the Special Servicer as a Nonrecoverable
Servicing Advance, is a Nonrecoverable Servicing Advance. The Servicer shall
notify the Special Servicer in writing of such determination and, if applicable,
such Nonrecoverable Servicing Advance shall be reimbursed to the Special
Servicer out of the Certificate Account pursuant to Section 3.03(e) below. The
Special Servicer shall provide the Servicer with any information the Servicer
reasonably requests to determine whether any Servicing Advance would be a
Nonrecoverable Advance.
(e) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), each of the Servicer, the
Special 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 the date made to, but not including, the date of
reimbursement. The Servicer shall reimburse itself, the Special Servicer 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.
(f) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the
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 Mortgage Loan, the 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(f), the Servicer shall, in accordance
with the Servicing Standards, determine whether the related Mortgagor has failed
to perform its obligations under the related Mortgage Loan and report any such
failure to the Special Servicer within a reasonable time after the later of July
15, 2001 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, the Lower-Tier and Upper-Tier
Distribution Accounts and the Excess Interest
Distribution Account.
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(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 or
made by or on behalf of it subsequent to the Cut-off Date (other than in respect
of principal and interest on the Mortgage Loans due and payable on or before the
Cut-off Date, which payments shall be delivered promptly to the appropriate
Mortgage Loan Seller or its designee and other than any amounts received from
Mortgagors which are received in connection with the purchase of defeasance
collateral), 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 Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans (net
of the Servicing Fees), including Excess Interest, Prepayment Premiums,
Yield Maintenance Charges and Penalty Charges;
(iii) all Insurance and Condemnation Proceeds and Liquidation
Proceeds received in respect of any Mortgage Loan or REO Property (other
than Liquidation Proceeds that are received in connection with the
purchase by the Servicer, the Special Servicer, the Holders of the
Controlling Class, or the Holders of the Class LR Certificates of all the
Mortgage Loans and any REO Properties in the Trust Fund and 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; and
(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 or master single
interest policy.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees or amounts collected for Mortgagor checks
returned for insufficient funds 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, any provision herein to the contrary
notwithstanding. Assumption, extension and modification fees actually received
from Mortgagors on Specially Serviced Mortgage Loans shall be promptly delivered
to the Special Servicer as additional servicing compensation, but only to the
extent the payment of such fees are in accordance with the second paragraph of
Section 3.11(b) and any other terms hereof.
Upon receipt of any of the foregoing amounts in clauses (i)-(iii)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within 1 Business Day such amounts to the Servicer for
deposit into the Certificate Account in accordance with the second preceding
paragraph. Any such amounts received by the Special Servicer with respect to an
REO Property shall be deposited by the Special Servicer into the REO Account and
remitted to the Servicer for deposit into the Certificate Account pursuant to
Section 3.16(c). With respect to any such amounts paid by check to the order of
the Special Servicer, the Special Servicer shall endorse without recourse or
warranty such check to the order of the Servicer and shall promptly deliver any
such check to the Servicer by overnight courier.
Funds in the Certificate Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. The Servicer
shall give notice to the Trustee, the Special Servicer and the Depositor of the
location of the Certificate Account as of the Closing Date and of the new
location of the Certificate Account prior to any change thereof.
(b) The Paying Agent, on behalf of the Trustee for the benefit of
the Certificateholders and the Trustee (as holder of the Uncertificated
Lower-Tier Interests and the Loan REMIC Interests), shall establish and maintain
the Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Excess Interest Distribution Account and the Interest Reserve Account in trust
for the benefit of the Certificateholders and the Trustee (as holder of the
Uncertificated Lower-Tier Interests and the Loan REMIC Interests). The Trustee
hereby authorizes the Paying Agent to make deposits in and withdrawals from the
Distribution Accounts in accordance with the terms of this Agreement. The
Servicer shall deliver to the Paying Agent each month on or before the P&I
Advance Date therein, for deposit in the Lower-Tier Distribution Account, that
portion of the Available Distribution Amount (calculated without regard to
clause (a)(iv), (a)(vii) and (c) and (d) of the definition thereof) for the
related Distribution Date then on deposit in the Certificate Account.
The Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account and the Interest Reserve
Account shall be maintained as segregated accounts separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to the second preceding paragraph, the
Servicer shall, as and when required hereunder, deliver to the Paying Agent for
deposit in the Lower-Tier Distribution Account:
(i) [reserved]
(ii) any P&I Advances required to be made by the Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by the Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class
LR Certificates in connection with the purchase of all of the Mortgage
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);
(iv) any Yield Maintenance Charges or Prepayment Premiums; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
All such amounts deposited in respect of the Colorado Square Loan
shall be deemed to be distributed in respect of the Loan REMIC Regular Interest
and the Loan REMIC Residual Interest as set forth in the Loan REMIC Declaration.
If, as of 4:00 p.m., New York City time, on any P&I Advance Date or
on such other date as any amount referred to in the foregoing clauses (i)
through (v) are required to be delivered hereunder, the Servicer shall not have
delivered to the Paying Agent for deposit in the Lower-Tier Distribution Account
and the Excess Interest Distribution Account the amounts required to be
deposited therein pursuant to the provisions of this Agreement, the Servicer
shall pay the Paying Agent interest on such late payment at the Prime Rate from
the time such payment was required to be made (without regards to any grace
period) until such late payment is received by the Paying Agent.
The Paying Agent shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts received by the Paying Agent that are
required by the terms of this Agreement to be deposited therein. In the event
the Trustee receives any amounts required to be remitted to the Paying Agent or
the Lower-Tier Distribution Account pursuant to the terms hereof, the Trustee
shall remit such amounts as soon as possible, but in no event later than one
Business Day following receipt. The Trustee shall remit to the Paying Agent for
deposit in the Lower-Tier Distribution Account any P&I Advances required to be
made by it in accordance with Section 7.05.
Promptly on each Distribution Date, the Paying Agent shall withdraw
from the Lower-Tier Distribution Account and 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.
Funds on deposit in the Interest Reserve Account and/or the
Certificate Account may only be invested in Permitted Investments in accordance
with the provisions of Section 3.06. As of the Closing Date, the Certificate
Account shall be located at Bankers Trust Company. The Servicer shall give
notice to the Trustee, the Paying Agent, 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
Excess Interest Distribution Account, the Interest Reserve Account, the
Upper-Tier Distribution Account and the Lower-Tier Distribution Account shall be
located at the offices of the Paying Agent. The Paying Agent shall give notice
to the Trustee, the Servicer and the Depositor of the location of the Upper-Tier
Distribution Account and the Lower-Tier Distribution Account and of the new
location of the Distribution Accounts prior to any change thereof.
(c) Prior to any Collection Period during which Excess Interest is
received, and upon notification from the Servicer or Special Servicer pursuant
to Section 3.02(d), the Paying Agent, on behalf of the Certificateholders shall
establish and maintain the Excess Interest Distribution Account in the name of
the Paying Agent in trust for the benefit of the Class S Certificateholders. The
Excess Interest Distribution Account shall be established and maintained as an
Eligible Account. Prior to the applicable Distribution Date, the Servicer shall
remit to the Paying Agent for deposit in the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the applicable
Collection Period.
Following the distribution of Excess Interest to Class S
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Paying Agent shall terminate the Excess Interest
Distribution Account.
Section 3.05 Permitted Withdrawals From the Certificate Account and
the Distribution Accounts.
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(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 Paying Agent for deposit in the Lower-Tier
Distribution Account and the Excess Interest Distribution Account the
amounts required to be remitted pursuant to the first paragraph of Section
3.04(b) and Section 3.04(c) or that may be applied to make P&I Advances
pursuant to Section 4.03(a);
(ii) to pay (A) itself unpaid Servicing Fees and the Special
Servicer unpaid Special Servicing Fees, Liquidation Fees and Workout Fees
in respect of each Mortgage Loan, Specially Serviced Mortgage Loan and REO
Loan, as applicable, the Servicer's or Special Servicer's, as applicable,
rights to payment of Servicing Fees and Special Servicing Fees pursuant to
this clause (ii)(A) with respect to any Mortgage Loan, Specially Serviced
Mortgage Loan or REO Loan, as applicable, being limited to amounts
received on or in respect of such Mortgage 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 recovery of
interest thereon and (B) to pay the Special Servicer any unpaid Special
Servicing Fees in respect of each Specially Serviced Loan or REO Loan, as
applicable, remaining unpaid out of general collections on the Mortgage
Loans and REO Properties;
(iii) to reimburse itself or the Trustee, as applicable (in reverse
of such order with respect to any Mortgage Loan), for xxxxxxxxxxxx X&X
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 Mortgage Loans and REO Loans with
respect to which such P&I Advances were made;
(iv) to reimburse itself , the Special Servicer or the Trustee, as
applicable (in reverse of such order with respect to any Mortgage Loan or
REO Property), for unreimbursed Servicing Advances, the Servicer's, the
Special Servicer's or the Trustee's respective rights to receive payment
pursuant to this clause (iv) with respect to any Mortgage Loan or REO
Property being limited to, as applicable, related payments, Liquidation
Proceeds, Insurance and Condemnation Proceeds and REO Revenues;
(v) to reimburse itself, the Special Servicer or the Trustee, as
applicable (in reverse of such order with respect to any Mortgage Loan or
REO Property), out of general collections on the Mortgage Loans and REO
Properties for Nonrecoverable Advances previously made or to pay itself
out of general collections on the Mortgage Loans and REO Properties, with
respect to any Mortgage Loan or REO Property any related earned Servicing
Fee that remained unpaid in accordance with clause (ii) above following a
Final Recovery Determination made with respect to such Mortgage Loan or
REO Property and the deposit into the Certificate Account of all amounts
received in connection therewith;
(vi) at such time as it reimburses itself or the Trustee, as
applicable (in reverse of such order with respect to any Mortgage Loan or
REO Property), for (a) any xxxxxxxxxxxx X&X Advance pursuant to clause
(iii) above, to pay itself or the Trustee, as applicable, any interest
accrued and payable thereon in accordance with Sections 4.03(d) and
3.11(c), (b) any unreimbursed Servicing Advances pursuant to clause (iv)
above, to pay itself, the Special Servicer or the Trustee, as the case may
be, any interest accrued and payable thereon in accordance with Sections
3.03(e) and 3.11(c) or (c) any Nonrecoverable Advances pursuant to clause
(v) above, to pay itself, the Special Servicer 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 applicable Mortgage Loan Seller under
Section 3 of the applicable 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 Mortgage Loan being limited to
that portion of the Purchase Price paid for such Mortgage 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 Trustee, as the case may be, out of general collections on the
Mortgage Loans and REO Properties for any unreimbursed expense reasonably
incurred by such Person in connection with the enforcement of the
applicable Mortgage Loan Seller's obligations under Section 3 of the
applicable Mortgage Loan Purchase Agreement, but only to the extent that
such expenses are not reimbursable pursuant to clause (vii) above or
otherwise;
(ix) [reserved];
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (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) and (B) Penalty Charges on Mortgage Loans (other than
Specially Serviced Mortgage 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 Mortgage Loan have been paid and are
not needed to pay interest on Advances in accordance with Section 3.11(c);
and (b) 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 Mortgage 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
Mortgage Loan have been paid and are not needed to pay interest on
Advances or the costs of inspections, all in accordance with Section
3.11(c));
(xi) to recoup any amounts deposited in the Certificate Account in
error;
(xii) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, 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);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.16(a) and 10.01(g) to the extent payable out of
the Trust Fund, (b) the cost of any Opinion of Counsel contemplated by
Sections 11.01(a) or 11.01(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);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of their
assets or transactions, together with all incidental costs and expenses,
to the extent that none of the Servicer, the Special Servicer, the Paying
Agent or the Trustee is liable therefor pursuant to Section 10.01(h);
(xv) to reimburse the Paying Agent out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(d);
(xvi) to pay itself, the Special Servicer, or the Mortgage Loan
Sellers, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase relating to
periods after the date of purchase;
(xvii) to remit to the Paying Agent for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.25; 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.
The Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or any such third party contractor) is entitled. The Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Loan, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Certificate Account.
(b) The Paying Agent, on behalf of 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 Premiums and Yield
Maintenance Charges distributable pursuant to Section 4.01(d) in the
Upper-Tier Distribution Account and to make distributions on the Class LR
Certificates pursuant to section 4.01(b);
(ii) [Intentionally Omitted];
(iii) to pay the Trustee accrued but unpaid Trustee Fees;
(iv) to pay to the Trustee or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b); and
(v) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Paying Agent, on behalf of the Trustee, may make withdrawals
from the Upper-Tier Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class LR Certificates) on each Distribution Date pursuant to
Section 4.01 or 9.01, as applicable;
(ii) [Intentionally Omitted]; and
(iii) 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 Mortgage 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)(iii), 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 and interest thereon listed in Sections
3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid first to the
Trustee and second to the Servicer.
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account and the REO Account.
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(a) The Servicer may direct (or direct the Paying Agent to direct in
the case of the Interest Reserve Account) any depository institution maintaining
the Interest Reserve Account or the Certificate Account (each, for purposes of
this Section 3.06, an "Investment Account") and the Special Servicer may direct
any depository institution maintaining the REO Account (also for purpose of this
Section 3.06, an "Investment Account") to invest, or if it is such depository
institution, may itself invest, the funds held therein only in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, (i) no later than the Business Day immediately
preceding the next succeeding date on which such funds are required to be
withdrawn from such account pursuant to this Agreement, if a Person other than
the depository institution maintaining such account is the obligor thereon and
(ii) no later than the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if the depository institution
maintaining such account is the obligor thereon. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds in
an Investment Account shall be made in the name of the Trustee (in its capacity
as such). The Servicer (in the case of the Certificate Account) or the Special
Servicer (in the case of the REO Account), on behalf of the Trustee, shall
maintain continuous physical possession of any Permitted Investment of amounts
in the Certificate Account or REO Account that is either (i) a "certificated
security," as such term is defined in the UCC (such that the Trustee shall have
control pursuant to Section 8-106 of the UCC) or (ii) other property in which a
secured party may perfect its security interest by physical possession under the
UCC or any other applicable law. Funds on deposit in the Distribution Accounts,
if any, shall remain uninvested. In the case of any Permitted Investment held in
the form of a "security entitlement" (within the meaning of Section 8-102(a)(17)
of the UCC), the Servicer or the Special Servicer, as applicable, shall take or
cause to be taken such action as the Trustee deems reasonably necessary to cause
the Trustee to have control over such security entitlement. 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 the Certificate
Account), the Special Servicer (in the case of the REO Account) or the Paying
Agent (in the case of the Interest Reserve 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, and Interest Reserve 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 3.05(a), 3.05(b) or 3.05(c), as the case may be. Interest and investment
income realized on funds deposited in the REO Account, to the extent of the Net
Investment Earnings, if any, with respect to such account for each period from
any Distribution Date to the immediately succeeding P&I Advance Date, shall be
for the sole and exclusive benefit of the Special Servicer 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 Interest Reserve Account or the REO Account, the
Servicer (in the case of the Certificate Account and the Interest Reserve
Account) and 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 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
provided, that neither the Servicer nor the Special Servicer shall be required
to deposit any loss on an investment of funds in an Investment Account if such
loss is incurred solely as a result of the insolvency of the federal or state
chartered depository institution or trust company that holds such Investment
Account, so long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made.
(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.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
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(a) The Servicer shall use its reasonable best efforts to cause the
Mortgagor to maintain, to the extent required by the terms of the related
Mortgage Note, or if the Mortgagor does not so maintain, shall itself maintain,
for each Mortgage Loan all insurance coverage as is required under the related
Mortgage (to the extent that the Trustee has an insurable interest and such
insurance coverage is available at commercially reasonable rates, consistent
with the Servicing Standards); provided, however, that if any Mortgage permits
the holder thereof to dictate to the Mortgagor the insurance coverage to be
maintained on such Mortgaged Property, the Servicer 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 coverage than was previously required of the Mortgagor under the
related Mortgage Loan. All Insurance Policies maintained by the Servicer or the
Special Servicer 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 Mortgage Loans other than REO Properties), (ii) be in
the name of the Trustee (in the case of insurance maintained in respect of REO
Properties), (iii) include coverage in an amount not less than the lesser of (x)
the full replacement cost of the improvements securing Mortgaged Property or the
REO Property, as applicable, or (y) the outstanding principal balance owing on
the related Mortgage Loan or REO Loan, as applicable, and in any event, the
amount necessary to avoid the operation of any co-insurance provisions, (iv)
include a replacement cost endorsement providing no deduction for depreciation
(unless such endorsement is not permitted under the related Mortgage Loan
documents), (v) be noncancellable without 30 days prior written notice to the
insured party (except in the case of nonpayment, in which case such policy shall
not be cancelled without 10 days prior notice) and (vi) 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 Mortgage 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 Mortgage Loans (other than REO Properties) (i) if the Mortgagor
defaults on its obligation to do so, shall be advanced by the Servicer as a
Servicing Advance and will be charged to the related Mortgagor and (ii) shall
not, for purposes thereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage 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 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 Mortgage 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 Mortgage Loan, or in the
absence of such deductible limitation, the deductible limitation which is
consistent with the Servicing Standard. In connection with its activities as
administrator and Servicer of the Mortgage 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, earthquake insurance on REO Properties,
provided coverage is available at commercially reasonable rates, the cost of
which shall be a Servicing Advance.
(ii) If the Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single interest or
force-placed insurance policy with a Qualified Insurer naming the Servicer on
behalf of the Trustee (or the Trustee in the case of the Special Servicer) 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 or force-placed 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 as a Servicing Advance. Such master single interest or force-placed
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 or force-placed interest policy because of such
deductible clause, to the extent that any such deductible exceeds the deductible
limitation set forth in the related Mortgage Loan documents for the original
policy that pertained to the related Mortgage Loan, or, in the absence of any
such deductible limitation, the deductible limitation which is consistent with
the Servicing Standard.
(c) Each of the Servicer and the Special Servicer shall obtain and
maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
Insurance Policy with a Qualified Insurer covering the Servicer's and the
Special Servicer's, as applicable, officers and employees and other persons
acting on behalf of the Servicer and the Special Servicer in connection with its
activities under this Agreement. Notwithstanding the foregoing, so long as the
long term debt or the deposit obligations or claims-paying ability of the
Servicer (or its immediate or remote parent) is rated at least "A" by Fitch and
"A2" by Moody's, the Servicer shall be allowed to provide self-insurance with
respect to a fidelity bond and an Errors and Omissions Insurance Policy. The
amount of coverage shall be at least equal to the coverage that would be
required by Xxxxxx Mae or Xxxxxxx Mac, 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 Mortgage Loans or Specially
Serviced Mortgage Loans, as applicable, for Xxxxxx Mae or Xxxxxxx Mac. 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. The Servicer and the Special Servicer
shall each cause the Trustee to be an additional loss payee on any policy
currently in place or procured pursuant to the requirements of this Section
3.07(c).
(d) At the time the Servicer determines in accordance with the
Servicing Standard that 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 reasonable efforts to cause the related
Mortgagor (in accordance with applicable law and the terms of the Mortgage 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 Mortgage 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 Mortgage Loan, and (ii) the maximum amount of
insurance which is available under the National Flood Insurance Act of 1968, as
amended. 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.
(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 National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust 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 Clauses; Assumption
Agreements.
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(a) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other transfer
of an interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Servicer, or with respect to each Specially Serviced Mortgage Loan, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall exercise
(or waive its right to exercise) any right it may have with respect to such
Mortgage Loan (x) to accelerate the payments thereon or (y) to withhold its
consent to any such sale or other transfer, in a manner consistent with the
Servicing Standards.
(b) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Servicer, or with respect to each Specially Serviced Mortgage Loan, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall exercise
(or waive its right to exercise) any right it may have with respect to such
Mortgage Loan (x) to accelerate the payments thereon or (y) to withhold its
consent to the creation of any such additional lien or other encumbrance, in a
manner consistent with the Servicing Standards.
(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 Mortgage 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 Sections 3.20 and 3.08(f),
neither the Servicer nor the Special Servicer shall agree to modify, waive or
amend any term of any Mortgage Loan in connection with the taking of, or the
failure to take, any action pursuant to this Section 3.08, other than the
identity of the Mortgagor pursuant to an assumption agreement.
(e) Notwithstanding the foregoing, neither the Servicer nor the
Special Servicer, as applicable, shall waive any rights under a
"due-on-encumbrance" clause with respect to any Mortgage Loan unless it obtains
from each Rating Agency a written confirmation that such waiver will not cause a
downgrading, qualification or withdrawal of the then current rating assigned to
any of the Certificates. The Servicer shall provide copies of any such waivers
to each Rating Agency with respect to each Mortgage Loan and the Special
Servicer shall provide copies of any such waivers to the Servicer and each
Rating Agency with respect to each Specially Serviced Mortgage Loan. To the
extent any fee charged by each Rating Agency in connection with rendering such
written confirmation is not paid by the related Mortgagor, such fee is to be an
expense of the Trust. Notwithstanding the foregoing, neither the Servicer nor
the Special Servicer, as applicable, shall waive any rights under a
"due-on-sale" clause with respect to any of the Mortgage Loans which (together
with any Mortgaged Loans cross-collateralized with such Mortgage Loans)
represent over 2% of the outstanding principal balance of the pool of Mortgage
Loans unless it obtains from each Rating Agency a written confirmation that such
waiver would not cause a downgrading, qualification or withdrawal of the then
current rating assigned to any of the Certificates. To the extent any fee
charged by each Rating Agency in connection with rendering such written
confirmation is not paid by the related Mortgagor, such fee is to be an expense
of the Trust. The Servicer shall provide copies of any such waivers to each
Rating Agency with respect to each Mortgage Loan and the Special Servicer shall
provide copies of any such waivers to the Servicer and each Rating Agency with
respect to each Specially Serviced Mortgage Loan.
(f) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, the Servicer may, without any Rating Agency confirmation as
provided in clause (e) above or Special Servicer approval, (i) consent to
subordination of the related Mortgage Loan to such easement or right-of-way for
utilities, access, parking, public improvements or another purpose, provided the
Servicer shall have determined in accordance with the Servicing Standards that
such easement or right-of-way shall not materially interfere with the
then-current use of the related Mortgaged Property, or the security intended to
be provided by such Mortgage, the related Mortgagor's ability to repay the
Mortgage Loan, or materially or adversely affect the value of such Mortgaged
Property, (ii) grant waivers of minor covenant defaults (other than financial
covenants) including late financial statements, (iii) grant releases of
non-material parcels of a Mortgaged Property (provided that releases as to which
the related Mortgage Loan documents expressly require the mortgagee thereunder
to make such releases upon the satisfaction of certain conditions shall be made
as required by the Mortgage Loan documents), and (iv) approve or consent to
grants of easements and rights-of-way that do not materially affect the use or
value of a Mortgaged Property or the Mortgagor's ability to make any payments
with respect to the related Mortgage Loan; provided that any such modification,
waiver or amendment (w) would not in any way affect a payment term of the
Certificates, (x) would not constitute a "significant modification" of such
Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not
otherwise constitute an Adverse REMIC Event with respect to any REMIC, (y)
agreeing to such modification, waiver or amendment would be consistent with the
Servicing Standard and (z) agreeing to such modification, waiver or amendment
shall not violate the terms, provisions or limitations of this Agreement or any
other document contemplated hereby.
Section 3.09 Realization Upon Defaulted Mortgage Loans.
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(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 Mortgage
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 from an Uninsured Cause, 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 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, 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 Mortgage 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 by an Independent MAI-designated
appraiser the cost of which 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 paid by the Servicer as 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 any of the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC under the REMIC Provisions or
cause any of the Loan REMIC, 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,
neither the Special Servicer nor the Servicer shall, 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 and performed within six months prior to any
such acquisition of title or other action, 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 net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices with respect to the related Mortgaged Property; 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 net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Servicer as a Servicing Advance 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, unless
it is a Nonrecoverable Servicing Advance (in which case it shall be an expense
of the Trust Fund and may be withdrawn by the Servicer from the Certificate
Account at the direction of the Special Servicer); and 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 preceding sentence have been satisfied. The Special Servicer shall review
and be familiar with the terms and conditions relating to enforcing claims and
shall monitor the dates by which any claim or action must be taken (including
delivering any notices to the insurer and using reasonable efforts to perform
any actions required under such policy) under each environmental insurance
policy to receive the maximum proceeds available under such policy for the
benefit of the Certificateholders and the Trustee (as holder of the
Uncertificated Lower-Tier Interests and the Loan REMIC Interests).
(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 Mortgage 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 2 of each of the Mortgage Loan Purchase Agreements
for which the applicable Mortgage Loan Seller could be required to repurchase
such Defaulted Mortgage Loan pursuant to Section 3 of the applicable 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 (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, provided that, if such Mortgage Loan has a then
outstanding principal balance of greater than $1,000,000, then prior to the
release of the related Mortgaged Property from the lien of the related Mortgage,
(i) the Special Servicer shall have notified the Rating Agencies, the Trustee
and the Servicer in writing of its intention to so release such Mortgaged
Property and the bases for such intention, (ii) the Trustee shall have notified
the Certificateholders in writing of the Special Servicer's intention to so
release such Mortgaged Property, (iii) the Holders of Certificates entitled to a
majority of the Voting Rights shall have consented to such release within 30
days of the Trustee's distributing such notice (failure to respond by the end of
such 30-day period being deemed consent) and (iv) the Special Servicer shall
have received written confirmation from each Rating Agency that such release
will not cause the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates. To the extent any fee charged
by each Rating Agency in connection with rendering such written confirmation is
not paid by the related Mortgagor, such fee is to be an expense of the Trust.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Paying Agent, the Directing
Certificateholder and the Servicer monthly regarding any actions taken by the
Special Servicer with respect to any Mortgaged Property securing a defaulted
Mortgage 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 Mortgage Loan by the applicable Mortgage Loan Seller or release
of the lien of the related Mortgage on such Mortgaged Property. The Servicer
shall forward, or cause to be forwarded all such reports to the Paying Agent.
The Paying Agent shall forward all such reports to each Rating Agency promptly
following the receipt thereof and the Certificateholders upon request.
(f) The Special Servicer, with the reasonable cooperation of 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 Special Servicer shall report, via Form 1099C, all forgiveness of
indebtedness. The Special Servicer shall deliver a copy of any such report to
the Trustee, the Paying Agent and the 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 Mortgage 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 Mortgage Loan or REO Property and the basis thereof. Each
Final Recovery Determination shall be evidenced by an Officer's Certificate
delivered to the Trustee and the Servicer no later than the next succeeding P&I
Advance Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
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(a) Upon the payment in full of any Mortgage 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 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 Mortgage 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, as the case may be, stating that such Mortgage Loan was liquidated and
that all amounts received or to be received in connection with such liquidation
which are required to be deposited into the Certificate Account pursuant to
Section 3.04(a) have been or will be so deposited, or that such Mortgage 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.
(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 Mortgage Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity. 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 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 Mortgage Loan and
REO Loan. As to each Mortgage Loan and REO Loan, the Servicing Fee shall accrue
from time to time at the Servicing Fee Rate and shall be computed on the basis
of the Stated Principal Balance of such Mortgage Loan and a 360 day year
consisting of twelve 30-day months and, in connection with any partial month
interest payment, for the same period respecting which any related interest
payment due on such Mortgage Loan or deemed to be due on such REO Loan is
computed. The Servicing Fee with respect to the Colorado Square Loan shall be an
expense of the Lower-Tier REMIC in respect of the related Loan REMIC Regular
Interest. The Servicing Fee with respect to any Mortgage 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 Mortgage Loan and REO Revenues allocable as interest on each REO Loan,
and as otherwise provided by Section 3.05(a). The Servicer shall be entitled to
recover unpaid Servicing Fees in respect of any Mortgage 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 be entitled to retain, and shall not be required
to deposit in the Certificate Account pursuant to Section 3.04(a), additional
servicing compensation in the form of 100% of all assumption, extension,
modification and similar fees and all assumption and modification application
fees on the Mortgage Loans that are not Specially Serviced Mortgage Loans, to
the extent that such fees are paid by the Mortgagor on Mortgage Loans that are
not Specially Serviced Mortgage Loans and only to the extent that all amounts
then due and payable with respect to the related Mortgage Loan (including
interest on Advances) have been paid. In addition, the Servicer shall be
entitled to retain as additional servicing compensation any charges for
processing borrower requests, beneficiary statements or demands and amounts
collected for checks returned for insufficient funds, in each case only to the
extent actually paid by the related Mortgagor and shall not be required to
deposit such amounts in the Certificate Account pursuant to Section 3.04(a). The
Servicer shall also be entitled to additional servicing compensation in the form
of: (i) Penalty Charges received on the Mortgage Loans and accrued during such
time as such Mortgage Loan was not a Specially Serviced Mortgage 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 the related Mortgage Loan
(including interest on Advances) have been paid and are not needed to pay
interest on Advances with respect to the related Mortgage Loan accrued since the
related Due Date; (ii) interest or other income earned on deposits relating to
the Trust Fund in the Certificate Account in accordance with Section 3.06(b)
(but only 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) and (iii) interest earned on deposits in the
Servicing Account which are not required by applicable law or the related
Mortgage Loan to be paid to the Mortgagor. 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 and owing to any of its Sub-Servicers and the 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.
(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 Mortgage Loan and REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate and shall be computed on the
basis of the Stated Principal Balance of such Specially Serviced Mortgage Loan
and a 360 day year consisting of 30-day months and, in connection with any
partial month interest payment, for the same period respecting which any related
interest payment due on such Specially Serviced Mortgage Loan or deemed to be
due on such REO Loan is computed. The Special Servicing Fee with respect to any
Specially Serviced Mortgage 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 all assumption,
extension and modification fees received on any Specially Serviced Mortgage
Loan, but only to the extent actually collected from the related Mortgagor and
only to the extent that all amounts then due and payable with respect to the
related Mortgage 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 Mortgage Loan at the Workout Fee Rate on such Mortgage Loan
for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if such loan
again becomes a Specially Serviced Mortgage Loan; provided that a new Workout
Fee will become payable if and when such Mortgage Loan again becomes a Corrected
Mortgage Loan. If the Special Servicer is terminated (other than for cause) or
resigns, it shall retain the right to receive any and all Workout Fees payable
in respect of Mortgage Loans that became Corrected Mortgage Loans prior to the
time of that termination or resignation. The successor special servicer will not
be entitled to any portion of such Workout Fees. A Liquidation Fee will be
payable with respect to each Specially Serviced Mortgage Loan as to which the
Special Servicer receives any Liquidation Proceeds subject to the exceptions set
forth in the definition of Liquidation Fee. 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
Mortgage Loan by a Mortgage Loan Seller for a breach of representation or
warranty or for defective or deficient Mortgage Loan documentation, the purchase
of any Specially Serviced Mortgage Loan by the Majority Controlling Class
Certificateholder pursuant to Section 3.18(b), the Servicer or the Special
Servicer or the purchase of all of the Mortgage 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 Mortgage 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
Mortgage Loan. Notwithstanding anything herein to the contrary, the Special
Servicer shall only be entitled to receive a Liquidation Fee or a Workout Fee,
but not both, with respect to proceeds on any Mortgage Loan. The Special
Servicer will also be entitled to additional fees in the form of Penalty Charges
on Specially Serviced Mortgage Loans which accrued during such time as such
Mortgage Loan was a Specially Serviced Mortgage 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 the related Mortgage Loan (including
interest on Advances) have been paid and are not needed to pay interest on
Advances with respect to any other Mortgage Loan or inspection costs otherwise
payable by the Trust Fund in accordance with Section 3.12. 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 expressly payable
directly out of the Certificate Account or the REO Account or as a Servicing
Advance, and the Special Servicer shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
(c) In determining the compensation of the Servicer or Special
Servicer, as applicable, with respect to Penalty Charges, on any Distribution
Date, the aggregate Penalty Charges collected on any Mortgage Loan since the
prior Distribution Date shall be applied to reimburse the Servicer or the
Trustee for interest on Advances due on such Distribution Date with respect to
the related Mortgage Loan and any Penalty Charges remaining thereafter shall be
distributed pro rata to the Servicer and the Special Servicer based upon the
amount of Penalty Charges the Servicer or the Special Servicer would otherwise
have been entitled to receive during such period without any such application.
Section 3.12 Inspections; Collection of Financial Statements.
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(a) The Servicer shall perform (at its own expense), or shall cause
to be performed (at its own expense), a physical inspection of each Mortgaged
Property securing a Mortgage Note with a Stated Principal Balance 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 the calendar year
2001; provided, however, that if any scheduled payment becomes more than 60 days
delinquent on the related Mortgage Loan, the Special Servicer shall inspect the
related Mortgaged Property as soon as practicable after such Mortgage Loan
becomes a Specially Serviced Mortgage Loan and annually thereafter for so long
as such Mortgage Loan remains a Specially Serviced Mortgage Loan. The cost of
such inspection by the Special Servicer shall be an expense of the Trust Fund
which expense shall be reimbursed to the Trust Fund from Penalty Charges
collected on such Specially Serviced Mortgage Loan. The Special Servicer or the
Servicer, as applicable, shall prepare or cause to be prepared a written report
of each such inspection detailing the condition of the Mortgaged Property and
specifying the existence of (i) any vacancy in the Mortgaged Property that the
preparer of such report deems material, (ii) any sale, transfer or abandonment
of the Mortgaged Property of which it has knowledge, (iii) any adverse change in
the condition of the Mortgaged Property that the preparer of such report deems
material, (iv) any visible waste committed on the Mortgaged Property and (v)
photographs of each inspected Mortgaged Property. The Special Servicer and the
Servicer shall deliver a copy of each such report prepared by the Special
Servicer and the Servicer, respectively, to the other, the Trustee and the
Paying Agent within 30 days. The Paying Agent shall deliver a copy of each such
report to each Rating Agency and the Controlling Class Certificateholder upon
request and to each Holder of a Class F, Class G, Class H, Class I, Class J,
Class K, Class L and Class M Certificate, upon request (which such request may
state that such items be delivered until further notice).
(b) The Special Servicer or Servicer, as applicable, shall make
reasonable efforts to collect promptly from each Mortgagor annual operating
statements and rent rolls of the related Mortgaged Property, financial
statements of such Mortgagor and any other reports required to be delivered
under the terms of the Mortgage Loans, if delivery of such items is required
pursuant to the terms of the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Servicer, in the case of any non-Specially Serviced
Mortgage Loan shall make reasonable efforts to collect promptly from each
related Mortgagor quarterly and annual operating statements, budgets and rent
rolls of the related Mortgaged Property, and the quarterly and annual financial
statements of such Mortgagor, whether or not delivery of such items is required
pursuant to the terms of the related Mortgage. In addition, the Special Servicer
shall cause quarterly and annual operating statements, budgets and rent rolls to
be regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation. The Servicer and the Special
Servicer shall each deliver copies of all the foregoing items so collected
thereby to the Paying Agent, the Depositor and each other, in each case within
45 days of its receipt thereof, but in no event, in the case of annual
statements, later than June 30th of each year. The Paying Agent shall, upon
request, deliver copies of the foregoing items to the Underwriters, the Rating
Agencies, the Trustee, Controlling Class Certificateholders, the Mortgage Loan
Sellers or, to the extent the Certificate Registrar has confirmed the Ownership
Interest in Certificates held thereby, any Certificate Owner, a copy (or image
in suitable electronic media) of each such report prepared by the Servicer or
the Special Servicer.
Within 45 days after receipt by the Servicer of any annual operating
statements or rent rolls with respect to any Mortgaged Property or REO Property,
but in no event later than June 30th of each year, the Servicer shall, based
upon such operating statements or rent rolls received, prepare (or, if
previously prepared, update) the analysis of operations and the Net Operating
Income adjustment worksheet (the "Operating Statement Analysis Report"). The
Special Servicer shall forward to the Servicer within 5 Business Days of receipt
all operating statements and rent rolls received by the Special Servicer from
any Mortgagor. All Operating Statements Analysis Reports shall be maintained by
the Servicer with respect to each Mortgaged Property and REO Property, and the
Servicer shall forward copies thereof (in each case, promptly following the
initial preparation and each material revision thereof) to the Paying Agent and
the Special Servicer, together with the related operating statements or rent
rolls. The Paying Agent shall, upon request and to the extent such items have
been delivered to the Paying Agent by the Servicer, deliver to the Trustee, the
Underwriters, the Rating Agencies, the Mortgage Loan Sellers, any
Certificateholder or, to the extent the Certificate Registrar has confirmed the
Ownership Interest in the Certificates held thereby, any Certificate Owner, a
copy of such Operating Statement Analysis (or update thereof) and the related
operating statement or rent rolls. The Servicer shall maintain an Operating
Statement Analysis Report with respect to each Mortgaged Property and REO
Property. Each Operating Statement Analysis Report shall be substantially in the
form of Exhibit J attached hereto (or, at the discretion of the Servicer,
provided that no less information is provided than is set forth in Exhibit J in
a CMSA format.
(d) At or before 12:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Servicer the following
reports with respect to the Specially Serviced Mortgage Loans and any REO
Properties, providing the information required of the Special Servicer in an
electronic format, reasonably acceptable to the Servicer as of such
Determination Date: (i) a delinquent loan status report, (ii) a comparative
financial status report, (iii) an historical liquidation report; (iv) an
historical loan modification report and (v) an REO status report.
(e) Not later than 3:30 p.m. (New York City time) on the second
Business Day after each Determination Date, the Servicer shall prepare (if and
to the extent necessary) and deliver or cause to be delivered to the Trustee and
the Paying Agent data files relating to the following reports: (i) to the extent
received at the time required, the most recent delinquent loan status report,
historical liquidation report, historical loan modification report and REO
status report received from the Special Servicer pursuant to Section 3.12(d),
(ii) the most recent CMSA property file report, CMSA loan periodic update file
and comparative financial status report (in each case combining the reports
prepared by the Special Servicer and Servicer), and (iii) a watch list report
with information that is current as of such Determination Date.
(f) The Special Servicer shall deliver to the Servicer the reports
set forth in Section 3.12(c) and Section 3.12(d), and the Servicer shall deliver
to the Trustee and the Paying Agent the reports set forth in Section 3.12(e), in
an electronic format reasonably acceptable to the Special Servicer, the Paying
Agent, the Servicer and the Trustee. The Servicer may, absent manifest error,
conclusively rely on the reports to be provided by the Special Servicer pursuant
to Section 3.12(e) and Section 3.12 (d). The Trustee and the Paying Agent may,
absent manifest error, conclusively rely on the reports to be provided by the
Servicer pursuant to Section 3.12(e). In the case of information or reports to
be furnished by the Servicer to the Trustee and the Paying Agent pursuant to
Section 3.12(e), to the extent that such information or reports are, in turn,
based on information or reports to be provided by the Special Servicer pursuant
to Section 3.12(c) or Section 3.12(d) and to the extent that such reports are to
be prepared and delivered by the Special Servicer pursuant to Section 3.12 (c)
or Section 3.12(d) the Servicer shall have no obligation to provide such
information or reports to the Trustee or the Paying Agent until it has received
the requisite information or reports from the Special Servicer, and the Servicer
shall not be in default hereunder due to a delay in providing the reports
required by Section 3.12(e) caused by the Special Servicer's failure to timely
provide any information or report required under Section 3.12(c) or Section
3.12(d) of this Agreement.
(g) Notwithstanding foregoing, however, the failure of the Servicer
or Special Servicer to disclose any information otherwise required to be
disclosed by this Section 3.12 shall not constitute a breach of this Section
3.12 to the extent the Servicer or Special Servicer so fails because such
disclosure, in the good faith reasonable belief of the Servicer or the Special
Servicer, as the case may be, would violate any applicable law or any provision
of a Mortgage Loan document prohibiting disclosure of information with respect
to the Mortgage Loans or Mortgaged Properties. The Servicer and Special Servicer
may disclose any such information or any additional information to any Person so
long as such disclosure is consistent with applicable law and the Servicing
Standards. The Servicer or the Special Servicer may affix to any information
provided by it any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
Section 3.13 Annual Statement as to Compliance.
---------------------------------
Each of the Servicer and the Special Servicer will deliver to the
Trustee and the Paying Agent, with a copy to the Depositor, on or before March
20th of each year, beginning March 20, 2001, an Officer's Certificate stating,
as to each signer thereof, that (i) a review of the activities of the Servicer
or the Special Servicer, as the case may be, during the preceding calendar year
and of its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Servicer or the Special Servicer, as the case may be, has maintained an
effective internal control system relating to its servicing of the Mortgage
Loans serviced by it and has fulfilled in all material respects its obligations
under this Agreement throughout such year, or, if there has been a material
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof and (iii) the Servicer
or the Special Servicer, as the case may be, has received no notice regarding
qualification, or challenging the status of the Loan REMIC, the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC from the Internal Revenue Service or any
other governmental agency or body or, if it has received any such notice,
specifying the details thereof. A copy of such Officer's Certificate may be
obtained by Certificateholders upon written request to the Trustee pursuant to
Section 8.12 hereof.
Section 3.14 Reports by Independent Public Accountants.
-----------------------------------------
Each of the Servicer and the Special Servicer at their own expense
shall cause a nationally recognized firm of independent certified public
accountants to furnish to the Servicer or the Special Servicer, as the case may
be, the Trustee, the Paying Agent and each Rating Agency, on or before March
20th of each year, commencing with March 20, 2001, a report stating that (i) it
has obtained from the Servicer or the Special Servicer, as the case may be, a
letter of representation regarding certain matters from the management of the
Servicer or the Special Servicer, as the case may be, which includes an
assertion that the Servicer or the Special Servicer, as the case may be, has
maintained an effective internal control system with respect to the servicing of
the Mortgage Loans and has complied with certain minimum mortgage loan servicing
standards (to the extent applicable to commercial and multifamily mortgage
loans), identified in the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America, with respect
to the Servicer's or the Special Servicer's, as the case may be, servicing of
commercial and multifamily mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such assertion is fairly stated in all material respects,
subject to such exceptions and other qualifications that, in the opinion of such
firm, such standards require it to report. In rendering its report such firm may
rely, as to the matters relating to the direct servicing of commercial and
multifamily mortgage loans by Sub-Servicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of examinations
conducted in accordance with the same standards (rendered within 1 year of such
statement) with respect to those Sub-Servicers.
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
Paying Agent, the Depositor, each Mortgage Loan Seller, 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, and to each Holder of a Class F, Class G, Class H, Class I,
Class J, Class K, Class L or Class M Certificate access to any documentation
regarding the Mortgage 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 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; provided, however, that Certificateholders and
Certificate Owners shall be required to pay their own photocopying costs and
execute a reasonable and customary confidentiality agreement with respect to
such information. The failure of the Servicer or the Special Servicer to provide
access as provided in this Section 3.15 as a result of a confidentiality
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 Mortgage 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 a nominee thereof on
behalf of the Certificateholders. The Special Servicer, on behalf of the Trust
Fund, shall sell any REO Property prior to the close of the third calendar year
following the year in which the Trust Fund acquires ownership of such REO
Property, within the meaning of Treasury Regulations Section 1.856-6(b)(1), 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 or (ii) obtains for the Trustee, the Paying
Agent and the Servicer an Opinion of Counsel, addressed to the Trustee, the
Paying Agent and the Servicer, to the effect that the holding by the Trust Fund
of such REO Property subsequent to the close of the third calendar year
following the year in which such acquisition occurred will not result in the
imposition of taxes on "prohibited transactions" of the Trust Fund or the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC constituted thereby as
defined in Section 860F of the Code or cause any of the Loan REMIC, 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 contemplated
by clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel contemplated by clause (ii) of the immediately preceding sentence, the
Special Servicer shall sell such REO Property within such longer period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its being
granted the REO Extension contemplated by clause (i) of the second preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the second preceding sentence, 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 and the
Trustee (as holder of the Uncertificated Lower-Tier Interests and the Loan REMIC
Interests), 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 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 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, insuring, 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 (i) any
withdrawals made out of such amounts pursuant to the preceding sentence and (ii)
Net Investment Earnings on amounts on deposit in the REO Account; provided,
however, that the Special Servicer 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).
(e) The REO Property and the related REO Account with respect to the
Colorado Square Loan shall be treated as assets of the related Loan REMIC for
all purposes of this Agreement.
Section 3.17 Management of REO Property.
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(a) If title to any REO Property is acquired, the Special Servicer
shall cause such REO Property to be managed, conserved, protected, operated and
leased for the benefit of the Certificateholders and the Trustee (as holder of
the Uncertificated Lower-Tier Interests and the Loan REMIC Interests) 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 or result in an Adverse REMIC Event. 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 and the Trustee (as holder of the
Uncertificated Lower-Tier Interests and the Loan REMIC Interests) (as determined
by the Special Servicer in its good faith and reasonable judgment in accordance
with the Servicing Standards). Subject to this Section 3.17, the Special
Servicer may allow the Trust Fund to earn "net income from foreclosure property"
within the meaning of Code Section 860G(d) if it determines that earning such
income is in the best interests of Certificateholders on a net after-tax basis
as compared with net leasing such REO Property or operating such REO Property on
a different basis. In connection therewith, the Special Servicer shall deposit
or cause to be deposited on a daily basis (and in no event later than 1 Business
Day following receipt of such funds) in the applicable REO Account all revenues
received by it with respect to each REO Property and the related REO Loan, and
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 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,
the Paying Agent and the Depositor) 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) before the date on which
the Servicer is requested to make any Servicing Advance with respect to an
REO Property; provided, however, that only two Business Days' notice shall
be required in respect of Servicing Advances required to be made on an
urgent or emergency basis (which may include, without limitation,
Servicing Advances required to make tax or insurance payments).
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the 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 Mortgage 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.
(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.
(d) When and as necessary, the Special Servicer shall send to the
Trustee, the Paying Agent and the Servicer a statement prepared by the Special
Servicer setting forth the amount of net income or net loss, as determined for
federal income tax purposes, resulting from the operation and management of a
trade or business on, the furnishing or rendering of a non-customary service to
the tenants of, or the receipt of any other amount not constituting Rents from
Real Property in respect of, any REO Property in accordance with Sections
3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
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(a) Each of the Servicer and the Special Servicer may sell or
purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property
only on the terms and subject to the conditions set forth in this Section 3.18
or as otherwise expressly provided in or contemplated by Section 2.03(b) and
Section 9.01.
(b) In the event that any Mortgage Loan becomes a Defaulted Mortgage
Loan and the Special Servicer has determined in good faith that such Defaulted
Mortgage Loan will become subject to foreclosure proceedings, the Special
Servicer shall promptly so notify in writing the Trustee, the Servicer and the
Majority Controlling Class Certificateholder. The Majority Controlling Class
Certificateholder, the Special Servicer or the Servicer (in that order) may at
its option purchase such Defaulted Mortgage Loan from the Trust Fund, at a price
equal to the Purchase Price. If the Majority Controlling Class Certificateholder
within 30 days of such notice from the Special Servicer fails to indicate in
writing to the Special Servicer that it shall purchase the Defaulted Mortgage
Loan within 60 days of such notice, and if the Majority Controlling Class
Certificateholder fails to so purchase, if the Servicer within 45 days of such
notice from the Special Servicer fails to indicate in writing to the Special
Servicer that it shall purchase the Defaulted Mortgage Loan within 75 days of
such notice, and if the Servicer fails to so purchase, then the Special Servicer
may sell the Defaulted Mortgage Loans pursuant to Section 3.18(c) below. The
Purchase Price for any Defaulted Mortgage 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 Majority Controlling
Class Certificateholder, the Special Servicer or the Servicer, 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 Majority Controlling Class Certificateholder, the Special Servicer
or the Servicer (in that order), as the case may be, ownership of such Defaulted
Mortgage Loan.
(c) The Special Servicer may offer to sell any Defaulted Mortgage
Loan not otherwise purchased by the Majority Controlling Class
Certificateholder, 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 net
present value basis than would any other form of liquidation of the related
Mortgaged Property. Such offering shall be made in a commercially reasonable
manner. The Special Servicer shall accept the highest cash bid received from any
Person for such Defaulted Mortgage 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
Mortgage Loan. In the absence of any bid determined as provided below to be
fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage
Loan in accordance with Section 3.09.
The Special Servicer shall use 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. 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. Notwithstanding the foregoing, the Special Servicer shall not be
obligated by the foregoing or otherwise to accept the highest bid if the Special
Servicer determines, in accordance with the Servicing Standards, that rejection
of such bid would be in the best interests of the Certificateholders. 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 period referred to in Section 3.16(a)
with respect to such REO Property is approaching, the Special Servicer shall
seek an extension of such period in the manner described in Section 3.16(a);
provided, however, that the Special Servicer shall use its best efforts,
consistent with the Servicing 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 Mortgage Loan or REO Property. No Interested Person shall be obligated
to submit a bid to purchase any Defaulted Mortgage Loan or REO Property, and
notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Mortgage Loan or any REO Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(c), shall be determined by the Special Servicer, if the highest bidder is a
Person other than the Special Servicer, a Holder of the Controlling Class or an
Affiliate of either, and by the Trustee, if the highest bidder is the Special
Servicer, a Holder of the Controlling Class or an Affiliate of either. In
determining whether any bid received from the Special Servicer, a Holder of the
Controlling Class or an Affiliate of either represents a fair price for any
Defaulted Mortgage Loan or any REO Property, the Trustee may conclusively rely
on the opinion of an Independent MAI-designated appraiser or other expert in
real estate matters retained by the Trustee at the expense of the Trust Fund. In
determining whether any bid constitutes a fair price for any Defaulted Mortgage
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 Mortgage
Loan, the occupancy level and physical condition of the Mortgaged Property or
REO Property, the state of the local economy and the obligation to dispose of
any REO Property within the time period specified in Section 3.16(a). The
Purchase Price for any Defaulted Mortgage 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
Mortgage Loan or REO Property, and the collection of all amounts payable in
connection therewith. Any sale of a Defaulted Mortgage Loan or any REO Property
shall be final and without recourse to the Trustee or the Trust Fund, 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.
(f) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
Section 3.19 [Intentionally Omitted.]
Section 3.20 Modifications, Waivers, Amendments and Consents.
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(a) Except as set forth in this Section 3.20(a), Section 3.20(i) and
Section 3.08, the Servicer shall not agree to any modification, waiver or
amendment of a Mortgage Loan, and, except as provided in the following
paragraph, Section 3.08(e), Section 3.08(f) and in Section 3.20(d), no Mortgage
Loan that is not a Specially Serviced Mortgage Loan may be modified, waived or
amended, provided, that the Servicer may agree to extend the maturity date of a
Mortgage Loan that is not a Specially Serviced Mortgage Loan, provided, further,
that, except as provided in the following sentence, no such extension entered
into pursuant to this Section 3.20(a) shall be for a period of more than twelve
months from the original maturity date of such Mortgage Loan or shall extend the
maturity date beyond the earlier of (i) two years prior to the Rated Final
Distribution Date and (ii) in the case of a Mortgage Loan secured by a leasehold
estate and not also the related fee interest, the date ten years prior to the
expiration of such leasehold estate. If such extension would extend the Maturity
Date of a Mortgage Loan for more than twelve months from and after the original
maturity date of such Mortgage Loan and the Mortgage Loan is not in default or
default with respect thereto is not reasonably foreseeable, the Servicer must
provide the Trustee with an opinion of counsel (at the expense of the related
Mortgagor) that such extension would not constitute a "significant modification"
of the Mortgage Loan within the meaning of Treasury Regulations Section
1.860G-2(b).
Notwithstanding the foregoing, the Servicer may modify or amend the
terms of any Mortgage Loan in order to (i) cure any ambiguity or mistake therein
or (ii) correct or supplement any provisions therein which may be inconsistent
with any other provisions therein or correct any error, provided that, if the
Mortgage Loan is not in default or default with respect thereto is not
reasonably foreseeable, such modification or amendment would not be a
"significant modification" of the Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b).
Neither the Servicer nor the Special Servicer shall permit the
substitution of any Mortgaged Property (or any portion thereof) for one or more
other parcels of real property at any time the Mortgage Loan is not in default
pursuant to the terms of the related Mortgage Loan documents or default with
respect thereto is not reasonably foreseeable unless either (i) such
substitution is at the unilateral option of the Mortgagor or otherwise occurs
automatically pursuant to the terms of the Mortgage Loan, within the meaning of
Treasury Regulations Section 1.1001-3, or (ii) it has received an Opinion of
Counsel to the effect that such substitution would not be a "significant
modification" of the Mortgage Loan within the meaning of Treasury Regulations
Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan or otherwise, the release of collateral or the pledge of
additional collateral) of the terms of a Specially Serviced Mortgage Loan with
respect to which a payment default or other material default has occurred or a
payment default or other material default is, in the Special Servicer's
judgment, reasonably foreseeable (as evidenced by an Officer's Certificate of
the Special Servicer), is reasonably likely to produce a greater recovery on a
net present value basis (the relevant discounting to be performed at the related
Mortgage Rate) than liquidation of such Specially Serviced Mortgage Loan, then
the Special Servicer may agree to a modification, waiver or amendment of such
Specially Serviced Mortgage Loan, subject to the provisions of this Section
3.20(b) and Section 3.20(c).
The Special Servicer shall use its best efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would:
(i) extend the maturity date of any such Specially Serviced Mortgage
Loan to a date occurring later than the earlier of (a) two years prior to
the Rated Final Distribution Date and (b) if such Specially Serviced
Mortgage Loan is secured by a leasehold estate and not also the related
fee interest, the date occurring ten years prior to the expiration of such
leasehold; or
(ii) reduce the related Net Mortgage Rate on any such Specially
Serviced Mortgage Loan to less than the lesser of (a) the original Net
Mortgage Rate and (b) 8.0240% per annum; or
(iii) provide for the deferral of interest unless (a) interest
accrues thereon, generally, at the related Mortgage Rate and (b) the
aggregate amount of such deferred interest does not exceed 10% of the
unpaid principal balance of the Specially Serviced Mortgage Loan.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan is in default or default with
respect thereto is reasonably foreseeable, no fee described in this paragraph
shall be collected by any Servicer or Special Servicer from a Mortgagor (or on
behalf of the Mortgagor) in conjunction with any consent or any modification,
waiver or amendment of a Mortgage Loan (unless the amount thereof is specified
in the related Mortgage Note) if the collection of such fee would cause such
consent, modification, waiver or amendment to be a "significant modification" of
the Mortgage Note within the meaning of Treasury Regulations Section
1.860G-2(b).
(d) To the extent consistent with this Agreement, the Servicer may
agree to any waiver, modification or amendment of a Mortgage Loan that is not in
default or as to which default is not reasonably foreseeable only if it provides
the Trustee with an Opinion of Counsel (at the expense of the related Mortgagor
or such other Person requesting such modification or, if such expense cannot be
collected from the related Mortgagor or such other Person, to be paid by the
Servicer as a Servicing Advance) to the effect that the contemplated waiver,
modification or amendment (i) will not be a "significant modification" of the
Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b) and
(ii) will not cause (x) any of the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or (y)
any of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to be
subject to any tax under the REMIC Provisions. Notwithstanding the foregoing,
the Servicer may not waive the payment of any Yield Maintenance Charge or the
requirement that any prepayment of a Mortgage Loan be made on a Due Date or, if
not made on a Due Date, be accompanied by all interest that would be due on the
next Due Date with respect to any Mortgage Loan that is not a Specially Serviced
Mortgage Loan.
(e) In the event of a modification which creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
pursuant to Section 4.06.
(f) Subject to Section 3.20(c), the Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification (including extensions), waiver or indulgence or any other
matter or thing, the granting of which is within the Servicer's or the Special
Servicer's, as the case may be, discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan and is permitted by
the terms of this Agreement, require that such Mortgagor pay to the Servicer or
the Special Servicer, as the case may be, as additional servicing compensation,
a reasonable or customary fee, for the additional services performed in
connection with such request.
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans entered into pursuant to this Section 3.20 shall be in
writing, signed by the Servicer or the Special Servicer, as the case may be, and
the related Mortgagor (and by any guarantor of the related Mortgage Loan, if
such guarantor's signature is required by the Special Servicer in accordance
with the Servicing Standards).
(h) Each of the Servicer and the Special Servicer shall notify the
Rating Agencies, the Paying Agent, the Mortgage Loan Sellers (if such Mortgage
Loan Seller is not a Servicer or Subservicer of such Mortgage Loan or a
Certificateholder) and each other in writing of any modification, waiver or
amendment of any term of any Mortgage Loan and the date thereof, and shall
deliver to the Trustee or the related 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 10 Business
Days) following the execution thereof. In addition, the Special Servicer shall
promptly send a copy of such a modification, waiver or amendment to the
Servicer. Within 15 days of the Servicer's delivery of the aforesaid
modification, waiver or amendment to the Paying Agent or its receipt from the
Special Servicer, as applicable, the Paying Agent shall forward a copy thereof
to the Trustee and each Holder of a Class F, Class G, Class H, Class I, Class J,
Class K, Class L and Class M Certificate.
(i) To the extent that either the Servicer or Special Servicer
waives any Penalty Charges in respect of any Mortgage Loan, the respective
amounts of additional servicing compensation payable to the Servicer and the
Special Servicer out of such Penalty Charges shall be reduced proportionately
based upon the respective amounts that had been payable thereto out of such
Penalty Charges immediately prior to such waiver.
(j) Notwithstanding the foregoing, neither the Servicer nor the
Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan (or any portion
thereof) unless such defeasance complies with Treasury Regulations Section
1.860G-2(a)(8) and the Servicer or the Special Servicer, as applicable, has
received (i) a certificate of an Independent certified public accountant to the
effect that such substituted property will provide cash flows sufficient to meet
all payments of interest and principal (including payments at maturity) on such
Mortgage Loan in compliance with the requirements of the terms of the related
Mortgage Loan documents, (ii) one or more Opinions of Counsel (at the expense of
the related Mortgagor) to the effect that the Trustee, on behalf of the Trust
Fund, will have a first priority perfected security interest in such substituted
Mortgage Property; provided, however, that to the extent the related Mortgage
Loan documents provide the lender with discretion, the Servicer shall require
that the related Mortgagor pay the cost of any such opinion as a condition to
granting such defeasance, (iii) to the extent required under the related
Mortgage Loan documents, or to the extent the Mortgage Loan documents provide
the lender with discretion, the Servicer shall require the Mortgagor to
establish a single purpose entity to act as a successor borrower, (iv) to the
extent permissible under the related Mortgage Loan documents, the Servicer shall
use its best efforts to require the related Mortgagor to pay all costs of such
defeasance, including but not limited to the cost of maintaining any successor
borrower and (v) to the extent permissible under the Mortgage Loan documents,
the Servicer shall obtain, at the expense of the related Mortgagor, written
confirmation from the Rating Agencies that such defeasance will not cause the
downgrade, withdrawal or modification of the then current ratings of the
Certificates; provided however, that the Servicer shall not require the related
Mortgagor to obtain such written confirmation from Fitch to the extent that such
Mortgagor has obtained the certificate required pursuant to clause (i) above,
obtained the opinion required pursuant to clause (ii) above and established the
single purpose entity pursuant to clause (iii) above unless such Mortgage Loan
at the time of such defeasance is one of the ten largest Mortgage Loans by
Stated Principal Balance.
(k) Notwithstanding anything herein or in the related Mortgage Loan
Documents to the contrary, the Servicer may permit the substitution of
"government securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, or any other securities that comply with Treasury
Regulations Section 1.860G-2(a)(8) for any Mortgaged Property pursuant to the
defeasance provisions of any Mortgage Loan (or any portion thereof) in lieu of
the defeasance collateral specified in the related Mortgage Loan documents;
provided that the Servicer reasonably determines that allowing their use would
not cause a default or event of default to become reasonably foreseeable and the
Servicer receives an Opinion of Counsel (at the expense of the Mortgagor to the
extent permitted under the Mortgage Loan documents) to the effect that such use
would not be and would not constitute a "significant modification" of such
Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not
otherwise constitute an Adverse REMIC Event with respect to any REMIC and
provided further that the requirements set forth in Section 3.20(j) are
satisfied.
(l) If required under the related Mortgage Loan documents or if
otherwise consistent with the Servicing Standards, the Servicer shall establish
and maintain one or more accounts (the "Defeasance Accounts"), into which all
payments received by the Servicer from any defeasance collateral substituted for
any Mortgaged Property shall be deposited and retained, and shall administer
such Defeasance Accounts in accordance with the Mortgage Loan documents.
Notwithstanding the foregoing, in no event shall the Servicer permit such
amounts to be maintained in the Defeasance Account for a period in excess of 90
days, unless such amounts are reinvested by the Servicer in "government
securities" within the meaning of Section 2(a)(16) of the Investment Company Act
of 1940, or any other securities that comply with Treasury Regulations Section
1.860G-2(a)(8). To the extent not required or permitted to be placed in a
separate account, the Servicer shall deposit all payments received by it from
defeasance collateral substituted for any Mortgaged Property into the Collection
Account and treat any such payments as payments made on the Mortgage Loan in
advance of its Due Date in accordance with clause (a)(i) of the definition of
Available Distribution Amount, and not as a prepayment of the related Mortgage
Loan. Notwithstanding anything herein to the contrary, in no event shall the
Servicer permit such amounts to be maintained in the Collection Account for a
period in excess of 365 days.
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report.
--------------------------------------------------
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Servicer shall promptly give notice
thereof, and shall deliver the related Mortgage File and Credit File to the
Special Servicer and shall use its 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 the
Mortgage Loan either in the Servicer's possession or otherwise 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 efforts to comply with the
preceding sentence within 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 Mortgage Loan until the Special Servicer has commenced the
servicing of such Mortgage Loan, which will commence upon receipt by the Special
Servicer of the Mortgage File. The Servicer shall deliver to the Paying Agent a
copy of the notice of such Servicing Transfer Event provided by the Servicer to
the Special Servicer pursuant to this Section. The Paying Agent shall deliver to
each Controlling Class Certificateholder a copy of the notice of such Servicing
Transfer Event provided by the Servicer pursuant to this Section
Upon determining that a Specially Serviced Mortgage Loan (other than
an REO Loan) has become current and has remained current for three consecutive
Monthly Payments (provided that (i) no additional Servicing Transfer Event is
foreseeable in the reasonable judgment of the Special Servicer, and (ii) for
such purposes taking into account any modification or amendment of such Mortgage
Loan), 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 (or copies
thereof if copies only were delivered to the Special 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 Mortgage Loan shall
terminate and the obligations of the Servicer to service and administer such
Mortgage Loan shall re-commence.
(b) In servicing any Specially Serviced Mortgage Loans, 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 Mortgage Loan information including
correspondence with the related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), the Servicer
shall maintain ongoing payment records with respect to each of the Specially
Serviced Mortgage Loans and REO Properties and shall provide the Special
Servicer with any information in its possession required by the Special Servicer
to perform its duties under this Agreement provided that the Servicer shall only
be required to maintain in such records to the extent the Special Servicer has
provided such information to the Servicer.
(d) No later than 30 days after a Servicing Transfer Event for a
Mortgage Loan, the Special Servicer shall deliver to the Trustee, the Servicer,
the Mortgage Loan Sellers (if such Mortgage Loan Seller is not Servicer or
Subservicer of such Mortgage Loan), each Rating Agency, each Class M
Certificateholder and subsequent Controlling Class Certificateholder certified
as such by the Certificate Registrar (who shall also furnish the name and
address of each Class M Certificateholder and Controlling Class
Certificateholder as set forth in the Certificate Register) and the Directing
Certificateholder a report (the "Asset Status Report") with respect to such
Mortgage Loan and the related Mortgaged Property, provided, however, the Special
Servicer shall not be required to deliver an Asset Status Report to the
Directing Certificateholder if they are the same entity. Such Asset Status
Report shall set forth the following information to the extent reasonably
determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(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 Mortgage 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 Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Servicer for regular servicing or otherwise realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within 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 the Special Servicer may
not take any action that is contrary to applicable law, the Servicing Standards
or the terms of the applicable Mortgage Loan documents. If the Directing
Certificateholder disapproves such Asset Status Report within 10 Business Days
of receipt, 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(d) until the Directing
Certificateholder shall fail to disapprove such revised Asset Status Report in
writing within 10 Business Days of receiving such revised Asset Status Report or
until the Special Servicer makes one of the determinations described below.
Notwithstanding the foregoing, in the event the Directing Certificateholder and
the Special Servicer have been unable to agree upon an Asset Status Report with
respect to a Specially Serviced Mortgage Loan within 90 days of the Directing
Certificateholder's receipt of the initial Asset Status Report, the Special
Servicer shall implement the actions described in the most recent Asset Status
Report submitted to the Directing Certificateholder by the Special Servicer. The
Special Servicer may, from time to time, modify any Asset Status Report it has
previously delivered and implement such report, provided such report shall have
been prepared, reviewed and not rejected pursuant to the terms of this Section.
Notwithstanding the foregoing, the Special Servicer (i) may, following the
occurrence of an extraordinary event with respect to the related Mortgaged
Property, take any action set forth in such Asset Status Report before the
expiration of a 10 Business Day period if the Special Servicer has reasonably
determined that failure to take such action would materially and adversely
affect the interests of the Certificateholders and 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.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage 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 Mortgage
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 Loan REMIC, 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
Sellers, the Trust Fund, the Paying Agent, the Trustee or their respective
officers, directors, employees or agents to any claim, suit or liability or (d)
materially expand the scope of the Special Servicer's, Trustee's or the
Servicer's responsibilities under this Agreement.
(e) Upon receiving notice of the occurrence of the events described
in clause (iv) of the definition of Servicing Transfer Event (without regard to
the 60 day period set forth therein), 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 Mortgage Loan and
reasonably requested by the Special Servicer to enable it to negotiate with the
related Mortgagor and prepare for any such proceedings. The Servicer shall use
its reasonable best efforts to comply with the preceding sentence within 5
Business Days of the occurrence of each such event. Upon receiving such
documents and information, the Special Servicer shall treat such Mortgage Loan
as if it were a Specially Serviced Mortgage Loan. Notwithstanding the foregoing,
the occurrence of any event described above shall not in and of itself be
considered a Servicing Transfer Event and, unless a Servicing Transfer Event has
occurred with respect to a related Mortgage Loan, the Servicer shall continue to
act as Servicer and administrator of such Mortgage Loan and no fees shall be
payable to the Special Servicer with respect to such Mortgage Loan other than
any related modification, assumption or extension fees provided for herein.
Section 3.22 Sub-Servicing Agreements.
------------------------
(a) The Servicer may enter into Sub-Servicing Agreements to provide
for the performance by third parties of any or all of its respective obligations
under Articles III and IV hereof; provided that the Sub-Servicing Agreement as
amended or modified: (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 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 all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Servicer under such agreement, or,
alternatively, may act in accordance with Section 7.02 hereof under the
circumstances described therein (subject to Section 3.22(g) hereof); (iii)
provides that the Trustee for the benefit of the Certificateholders and the
Trustee (as holder of the Uncertificated Lower-Tier Interests and the Loan REMIC
Interests) 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 thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trust Fund, the Trustee, any successor
Servicer or any Certificateholder shall have any duties under such Sub-Servicing
Agreement or any liabilities arising therefrom; (iv) permits any purchaser of a
Mortgage Loan pursuant to this Agreement to terminate such Sub-Servicing
Agreement with respect to such purchased Mortgage Loan at its option and without
penalty and (v) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund. Any
successor Servicer hereunder shall, upon becoming successor Servicer, be
assigned and shall assume any Sub-Servicing Agreements from the predecessor
Servicer (subject to Section 3.22(g) hereof). 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 Mortgage Loan
serviced thereunder at the time such Mortgage Loan becomes a Specially Serviced
Mortgage Loan; provided, however, that the Sub-Servicing Agreement may provide
that the Sub-Servicer will continue to make all Advances and calculations and
prepare all reports required under the Sub-Servicing Agreement with respect to
Specially Serviced Mortgage Loans and continue to collect its Servicing Fee as
if no Servicing Transfer Event had occurred and with respect to 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 Mortgage Loans
and REO Properties as are specifically provided for in such Sub-Servicing
Agreement. The Servicer shall deliver to the Trustee and the Paying Agent copies
of all Sub-Servicing Agreements, and any amendments thereto and modifications
thereof, entered into by it promptly upon its execution and delivery of such
documents. References in this Agreement to actions taken or to be taken by the
Servicer include actions taken or to be taken by a Sub-Servicer on behalf of the
Servicer; and, in connection therewith, all amounts advanced by any Sub-Servicer
to satisfy the obligations of the Servicer hereunder to make Advances shall be
deemed to have been advanced by the Servicer out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer in the same
manner and out of the same funds as if such Sub-Servicer were the Servicer, and,
for so long as they are outstanding, such Advances shall accrue interest in
accordance with Section 3.03(e), such interest to be allocable between the
Servicer and such Sub-Servicer pursuant to the terms of the Sub-Servicing
Agreement. 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, other than Chase.
Except as otherwise provided herein, the Special Servicer may not enter into
Sub-Servicing Agreements and may not assign any of its servicing obligations
hereunder.
(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, 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; provided however, with respect to the Sub-Servicing Agreement (the
"Chase Sub-Servicing Agreement") with Chase dated as of the date hereof, so long
as Chase is an approved master servicer by each of the rating agencies, the
Servicer's obligation to monitor Chase shall not require the Servicer to
exercise approval rights with respect to the actions of Chase pursuant to the
Chase 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 Mortgage Loans. The
Servicer shall have the right to remove a Sub-Servicer retained by it in
accordance with the terms of the related Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Servicer and assumes the rights and obligations of the Servicer under any
Sub-Servicing Agreement, the Servicer, at its expense, shall deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
and this Section 3.22, the 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 Mortgage Loans
for which it is responsible, and the Servicer shall pay the fees of any
Sub-Servicer thereunder from its own funds. 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 powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer.
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Servicer, the Trustee or such
successor Servicer shall have the right to terminate such Sub-Servicing
Agreement with or without cause and without a fee. Notwithstanding the
foregoing, the Trustee and any successor Servicer shall assume the Chase
Sub-Servicing Agreement unless Chase has been terminated in accordance with the
succeeding paragraph.
In the event Chase is not an acceptable or approved master servicer
to the Rating Agencies at the time the Trustee or a successor Servicer becomes
successor Servicer, Chase shall have 30 days after notice from the Trustee or
the successor Servicer to either (i) cure such failure or (ii) assign such
Subservicing Agreement to a Successful Sub-Servicing Bidder (as defined below).
If Chase fails to either (i) cure such failure or (ii) assign such Subservicing
Agreement to a Successful Sub-Servicing Bidder, the Trustee or the successor
Servicer may terminate the Chase Sub-Servicing Agreement.
A "Successful Sub-Servicing Bidder" will be any prospective
subservicer candidate reasonably acceptable to the Depositor and acceptable to
the Rating Agencies, as evidenced by written confirmation from the Rating
Agencies that the assumption by such Successful Sub-Servicing Bidder of the
Chase Sub-Servicing Agreement will not cause the downgrade, withdrawal or
qualification of the then current ratings of the Certificates, which candidate
would be eligible to act as Sub-Servicer hereunder.
(h) Promptly (but in no event later than 5 Business Days) after the
execution of any Sub-Servicing Agreement, the Servicer shall forward a copy of
such Sub-Servicing Agreement to the Trustee and the Special Servicer. 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. With respect to
Mortgage Loans subject to a Sub-Servicing Agreement, the Special Servicer shall,
among other things, remit amounts, deliver reports and information, and afford
access to facilities and information to the related Sub-Servicer that would be
required to be remitted, delivered or afforded, as the case may be, to the
Servicer pursuant to the terms hereof within a sufficient period of time to
allow the Sub-Servicer to fulfill its obligations under such Sub-Servicing
Agreement and in no event later than 1 Business Day prior to the applicable
Determination Date (or such other date as specified herein).
Section 3.23 Representations, Warranties and Covenants 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 corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, 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 certificate of incorporation 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 material 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, the Special Servicer 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 default 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 default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Servicer or its properties or
might 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.
(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 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; provided, that such indemnity shall not cover indirect or
consequential damages. Such indemnification shall survive any termination or
resignation of the Servicer, any resignation or termination of the Trustee and
any termination of the Agreement.
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer.
------------------------------------------------
(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 limited partnership, duly organized,
validly existing and in good standing under the laws of the State of
Texas, 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
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets, or
result in the violation of any law, rule, regulation, order, judgment or
decree 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, manager 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 Mortgage 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,
managers or employees that is or, following the occurrence of a Servicing
Transfer Event, would be involved in the servicing or administration of
Mortgage 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.
(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 them harmless
against any losses, damages, penalties, fines, forfeitures, reasonable 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, the termination or
resignation of the Trustee and any termination of the Agreement.
Section 3.25 Interest Reserve Account.
------------------------
(a) On each P&I Advance Date relating to any Interest Accrual Period
ending in any January and on any P&I Advance Date which occurs in a year which
is not a leap year relating to any Interest Accrual Period ending in any
December, the Paying Agent, in respect of the Interest Reserve Loans, shall
deposit into the Interest Reserve Account, an amount equal to one day's interest
on the Stated Principal Balance of the Interest Reserve Loans as of the Due Date
occurring in the month preceding the month in which such P&I Advance 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
February and January, "Withheld Amounts").
(b) On each P&I Advance Date occurring in March, the Paying Agent
shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January (if applicable) and February, if
any, and deposit such amount into the Lower-Tier Distribution Account.
Section 3.26 Excess Interest Distribution Account.
------------------------------------
Prior to the applicable Distribution Date, the Servicer is required
to remit to the Paying Agent for deposit into the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the related Due
Period.
Section 3.27 Lease Enhancement Policies.
--------------------------
Pursuant to each Mortgage Loan Purchase Agreement, the applicable
Mortgage Loan Seller will be required to provide written notice (with copies to
the Servicer) to each Lease Enhancement Policy insurer within 10 days after the
Closing Date, that (i) the Servicer shall be sent notices under each Lease
Enhancement Policy and (ii) Norwest Bank Minnesota, National Association, as
trustee for the registered holders of the Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-2, shall be
named the insured party under each Lease Enhancement Policy. The Special
Servicer shall review and be familiar with the terms and conditions relating to
enforcing claims and shall monitor the dates by which any claim or action must
be taken (including delivering any notices to the Lease Enhancement Policy
insurer and using reasonable efforts to perform any actions required under such
policy) under each Lease Enhancement Policy to receive the maximum proceeds
available under such Lease Enhancement Policy for the benefit of the
Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier
Interests and the Loan REMIC Interests).
[End of Section III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
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(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Paying Agent shall transfer
the Lower-Tier Distribution Amount 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) first, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates and the Class X Certificates, pro rata (based upon their
respective entitlements to interest for such Distribution Date), in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Classes of Certificates for such
Distribution Date;
(ii) second, (A) to the Holders of the Class A-1 Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount, until the outstanding Certificate Balance
of such Class has been reduced to zero and (B) after the Certificate
Balance of the Class A-1 Certificates has been reduced to zero, to the
Holders of the Class A-2 Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A-1 Certificates on such Distribution Date), until the outstanding
Certificate Balance of such Class has been reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates and the
Class A-2 Certificates pro rata (based upon the aggregate unreimbursed
Collateral Support Deficit allocated to each such Class), until all
amounts of Collateral Support Deficit previously allocated to such
Classes, but not previously reimbursed, have been reimbursed in full;
(iv) fourth, to the Holders of the Class B Certificates, in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates have been reduced to zero, to the Holders of the Class B
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
on such Distribution Date), until the outstanding Certificate Balance of
the Class B Certificates has been reduced to zero;
(vi) sixth, to the Holders of the Class B Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class B
Certificates, but not previously reimbursed, have been reimbursed in full;
(vii) seventh, to the Holders of the Class C Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(viii) eighth, after the Certificate Balances of the Class A and
Class B Certificates have been reduced to zero, to the Holders of the
Class C Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A and Class B
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class C Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class C Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class C
Certificates, but not previously reimbursed, have been reimbursed in full;
(x) tenth, to the Holders of the Class D Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balances of the Class A, Class
B and Class C Certificates have been reduced to zero, to the Holders of
the Class D Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A, Class
B and Class C Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class D Certificates has been
reduced to zero;
(xii) twelfth, to the Holders of the Class D Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class D
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A,
Class B, Class C and Class D Certificates have been reduced to zero, to
the Holders of the Class E Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A, Class B, Class C and Class D Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class E
Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class E Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class E Certificates, but not previously reimbursed, have been reimbursed
in full;
(xvi) sixteenth, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A,
Class B, Class C, Class D and Class E Certificates have been reduced to
zero, to the Holders of the Class F Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A, Class B, Class C, Class D and Class E Certificates
on such Distribution Date), until the outstanding Certificate Balance of
the Class F Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of the Class F Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class F Certificates, but not previously reimbursed, have been
reimbursed in full;
(xix) nineteenth, to the Holders of the Class G Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A, Class
B, Class C, Class D, Class E and Class F Certificates have been reduced to
zero, to the Holders of the Class G Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A, Class B, Class C, Class D, Class E and Class F
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class G Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of the Class G Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class G Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxii) twenty-second, to the Holders of the Class H Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G Certificates have
been reduced to zero, to the Holders of the Class H Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C, Class D, Class
E, Class F and Class G Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class H Certificates has been
reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class H Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class H Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class I Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, to the Holders of the Class I
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class I Certificates has been reduced to zero;
(xxvii) twenty-seventh, to the Holders of 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;
(xxviii) twenty-eighth, to the Holders of the Class J Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class I
Certificates have been reduced to zero, to the Holders of the Class J
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class I
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class J Certificates has been reduced to zero;
(xxx) thirtieth, to the Holders of 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;
(xxxi) thirty-first, to the Holders of the Class K Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class I
and Class J Certificates have been reduced to zero, to the Holders of the
Class K Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class I and Class J
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class K Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of 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;
(xxxiv) thirty-fourth, to the Holders of the Class L Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class I,
Class J and Class K Certificates have been reduced to zero, to the Holders
of the Class L Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class I,
Class J and Class K Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class L Certificates has been
reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class L Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class L Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class M Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class I,
Class J, Class K and Class L Certificates have been reduced to zero, to
the Holders of the Class M Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class I, Class J, Class K and Class L Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class M
Certificates has been reduced to zero;
(xxxix) thirty-ninth, to the Holders of the Class M Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class M Certificates, but not previously reimbursed, have been
reimbursed in full; and
(xl) fortieth, to the Holders of the Class R and Class LR
Certificates, the amount, if any, of the Available Distribution Amount and
the Lower-Tier Distribution Amount remaining in the Upper-Tier
Distribution Account and the Lower-Tier Distribution Account,
respectively, with respect to such Distribution Date.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall receive distributions 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 actually distributable to its
respective Related Certificates as provided in Sections 4.01(a) and (c). On each
Distribution Date, each Uncertificated Lower-Tier Interest shall receive
distributions in respect of interest in an amount equal to the Interest
Distribution Amount in respect of its Related Certificates and its related
Component of the Class X Certificates, in each case to the extent actually
distributable thereon as provided in Section 4.01(a). For this purpose, interest
distributed on the Class X Certificates shall be treated as having been paid to
the Components pro rata. Such amounts distributed to the Uncertificated
Lower-Tier Interests in respect of principal and interest with respect to any
Distribution Date are referred to herein collectively as the "Lower-Tier
Distribution Amount," and shall be made by the Paying Agent by depositing such
Lower-Tier Distribution Amount in the Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto. 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.
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 Available Distribution Amount for such Distribution Date
remaining in the Lower-Tier Distribution Account, if any).
(c) On and after the Distribution Date on which the Certificate
Balances of the Subordinate Certificates have all been reduced to zero (without
regard to any amounts of Collateral Support Deficit remaining unreimbursed), the
Principal Distribution Amount will be distributed, pro rata (based upon
Certificate Balances), among the Class A Certificates without regard to the
priorities set forth in Section 4.01(a)(ii).
(d) On each Distribution Date, the Paying Agent shall withdraw from
the Lower-Tier Distribution Account an aggregate amount equal to all Prepayment
Premiums and Yield Maintenance Charges actually collected on the Mortgage Loans
or any REO Loans during the related Due Period and shall distribute such amount
in respect of the Class LA-1 Uncertificated Interest by depositing such amount
in the Upper-Tier Distribution Account (notwithstanding that all principal and
interest distributable with respect to the Class LA-1 Uncertificated Interest
has been paid in full).
(e) On each Distribution Date, the Paying Agent shall withdraw any
amounts on deposit in the Upper-Tier Distribution Account that represent
Prepayment Premiums and Yield Maintenance Charges actually collected on Mortgage
Loans or REO Loans during the related Due Period and remitted in respect of the
Class LA-1 Uncertificated Interest pursuant to Section 4.01(d), and shall
distribute such amounts to the Holders of Class X Certificates.
No Prepayment Premiums or Yield Maintenance Charges will be
distributed to the Holders of Class A, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class I, Class J, Class K, Class L, Class M, Class S or
Residual Certificates.
(f) 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(g), 4.01(h) 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 and the Paying Agent with
wiring instructions no less than 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 Notional Amount,
as applicable, 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 Paying Agent, the
Trustee, the Certificate Registrar, the Depositor, the Servicer, the Special
Servicer, the Underwriters or the Placement Agent shall have any responsibility
therefor except as otherwise provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Paying Agent 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 Paying Agent
shall, no later than 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:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at the
offices of the Certificate Registrar or such other location therein
specified; and
(ii) 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(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent, 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 or the Paying Agent as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(g).
(h) 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 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 11.05 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 Paying Agent shall attempt to contact such prior Holder in
the manner contemplated by Section 4.01(g) as if such Holder had failed to
surrender its Certificates.
(i) On each Distribution Date, any Excess Interest received with
respect to the Mortgage Loans during the related Collection Period shall be
distributed to the holders of the Class S Certificates.
(j) All payments made on the Colorado Square Loan (or subsequently
acquired REO Property other than amounts distributable to the Loan REMIC
Residual Interest in accordance with the Loan REMIC Declaration) shall be deemed
to be paid to the Lower-Tier REMIC before payments are made to the holders of
the Uncertificated Lower-Tier Interests pursuant to Sections 4.01(a) or 4.01(d),
and shall be treated as principal, interest, Yield Maintenance Charges or
Prepayment Premiums, as the case may be, based on these characterizations with
respect to the Colorado Square Loan (or REO Property), except where expressly
noted and, in addition, any payment of principal on or reduction in the Stated
Principal Balance of the Colorado Square Loan shall reduce the principal balance
of the Loan REMIC Regular Interest. Any payments on or with respect to the
Colorado Square Loan in excess of the principal, interest, Yield Maintenance
Charges and Prepayment Premiums distributable on the Loan REMIC Regular Interest
shall be distributable to the Class LR Certificate in respect of amounts
distributed on the Loan REMIC Residual Interest. Servicing Fees with respect to
the Colorado Square Loan shall be paid by the Lower-Tier REMIC in respect of the
Loan REMIC Regular Interest, and all other servicing compensation with respect
to the Colorado Square Loan payable to the Servicer or Special Servicer shall be
payable by the Loan REMIC.
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s.
-----------------------------------------------
(a) On each Distribution Date, the Paying Agent shall forward or
make available to all of the Holders of each Class of Certificates, the Trustee,
the Underwriters, the Placement Agent, the Servicer, the Special Servicer, the
Mortgage Loan Sellers and a certain financial market publisher (which initially
shall be Bloomberg, L.P.) a statement (substantially in the form set forth as
Exhibit H hereto and based on the information supplied to the Paying Agent in
the related CMSA Investor Reporting Package (IRP) in accordance with CMSA
guidelines) as to the distributions made on such Distribution Date (each, a
"Statement to Certificateholders") setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to Distributable
Certificate Interest;
(iii) the aggregate amount of Advances made during the period from
but not including the previous Distribution Date to and including such
Distribution Date;
(iv) the aggregate amount of compensation paid to the Trustee and
servicing compensation paid to the Servicer and the Special Servicer
during the Due Period for such Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans outstanding immediately before and immediately after such
Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans as of the end of the related Due Period for
such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days or more and (D) current but specially serviced or in foreclosure but
not REO Property;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Due Period for such Distribution Date, based on
the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date, separately
identifying any Certificate Deferred Interest for such Distribution Date
allocated to such Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to (A) Yield Maintenance
Charges, (B) Prepayment Premiums and (C) Excess Interest;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit on such
Distribution Date and the aggregate amount of all reductions as a result
of allocations of Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis, the total Appraisal
Reduction effected in connection with such Distribution Date and the total
Appraisal Reduction Amounts as of such Distribution Date;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified during the related Due Period;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment during the related Due Period and the
amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
during the related Due Period;
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a) and (b);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Due Period (other than a payment in
full), (A) the loan number thereof, (B) the aggregate of all Liquidation
Proceeds and other amounts received in connection with such Liquidation
Event (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in connection with such Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related
Collection Period, (A) the loan number of the related Mortgage Loan, (B)
the aggregate of all Liquidation Proceeds and other amounts received in
connection with such Final Recovery Determination (separately identifying
the portion thereof allocable to distributions on the Certificates), and
(C) the amount of any Collateral Support Deficit in respect of the related
REO Loan in connection with such Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to the
Servicer and the Trustee since the preceding Distribution Date;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to the Servicer, the Special Servicer and the Trustee;
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected during the related Due Period; and
In the case of information furnished pursuant to clauses (i), (ii),
(xi), (xvi) and (xviii) above, the amounts shall be expressed as a dollar amount
in the aggregate for all Certificates of each applicable Class and per
Definitive Certificate.
Within a reasonable period of time after the end of each calendar
year, the Paying Agent shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate and, upon request, to the Trustee, a
statement containing the information set forth in clauses (i), (ii) and (xi)
above as to the applicable Class, aggregated for such calendar year or
applicable portion thereof during which such person was a Certificateholder,
together with such other information as the Paying Agent deems necessary or
desirable, or that a Certificateholder or Certificate Owner reasonably requests,
to enable Certificateholders to prepare their tax returns for such calendar
year. Such obligation of the Paying Agent shall be deemed to have been satisfied
to the extent that substantially comparable information shall be provided by the
Paying Agent pursuant to any requirements of the Code as from time to time are
in force.
On each Distribution Date, the Paying Agent shall forward to the
Depositor, to each Rating Agency, to each Holder of a Residual Certificate, to
the Servicer, to the Special Servicer, to the Trustee, to an agent designated by
the Directing Certificateholder (such agent shall initially be Bloomberg, L.P.)
and to any other party that the Depositor may designate, a copy of the Statement
to Certificateholders forwarded to the Holders of the Regular Certificates on
such Distribution Date.
The Paying Agent shall make available the Statement to
Certificateholders through its home page on the internet. The Paying Agent
hereby acknowledges and agrees that its home page as of the date hereof is
located at "xxx.xxxxx.xxx/xxx" on the world wide web. In addition, if the
Depositor so directs the Paying Agent, and on terms acceptable to the Paying
Agent, the Paying Agent shall make certain other information and reports related
to the Mortgage Loans available through its home page.
The Servicer may, at its sole cost and expense, make available by
electronic media, bulletin board service or internet website (in addition to
making information available as provided herein) any reports or other
information the Servicer is required or permitted to provide to any party to
this Agreement, the Rating Agencies or any Certificateholder or prospective
Certificateholder to the extent such action does not conflict with the terms of
this Agreement, the terms of the Mortgage Loans or applicable law.
Notwithstanding this paragraph, the availability of such information or reports
on the internet or similar electronic media shall not be deemed to satisfy any
specific delivery requirements in this Agreement. In connection with providing
access to the Servicer's Internet website, the Servicer shall take reasonable
measures to ensure that only such parties listed above may access such
information including, without limitation, requiring registration and acceptance
of a disclaimer. The Servicer shall not be liable for dissemination of this
information in accordance with this Agreement, provided that such information
otherwise meets the requirements set forth herein with respect to the form and
substance of such information or reports. The Servicer shall be entitled to
attach to any report provided pursuant to this subsection, any reasonable
disclaimer with respect to information provided, or any assumptions required to
be made by such report. Notwithstanding anything herein to the contrary, the
Servicer may, at its sole cost and expense, make available by electronic media,
bulletin board service or internet website any reports or other information the
Servicer is required or permitted to provide to any Mortgagor with respect to
such Mortgagor's Mortgage Loan to the extent such action does not conflict with
the terms of this Agreement, the terms of the Mortgage Loans or applicable law.
(b) On the second Business Day after each Determination Date, the
Servicer shall deliver to the Paying Agent and the Trustee the CMSA Investor
Reporting Package (IRP), reflecting information as of the close of business on
the Determination Date, in a mutually agreeable electronic format. Such
information may be delivered by the Servicer to the Trustee and the Paying Agent
by telecopy or in such electronic or other form as may be reasonably acceptable
to the Trustee, the Paying Agent and the Servicer. The Special Servicer shall
from time to time (and, in any event, as may be reasonably required by the
Servicer) provide the Servicer with such information in its possession regarding
the Specially Serviced Mortgage Loans and REO Properties as may be necessary for
the Servicer to prepare each report and any supplemental information to be
provided by the Servicer to the Trustee and the Paying Agent. None of the Paying
Agent, the Trustee or the Depositor shall have any obligation to recompute,
verify or recalculate the information provided thereto by the Servicer in the
CMSA Investor Reporting Package (IRP). Unless the Paying Agent has actual
knowledge that any CMSA Investor Reporting Package (IRP) contains erroneous
information, the Paying Agent is authorized to rely thereon in calculating and
making distributions to Certificateholders in accordance with Section 4.01,
preparing the statements to Certificateholders required by Section 4.02(a) and
allocating Collateral Support Deficit to the Certificates in accordance with
Section 4.04.
Notwithstanding the foregoing, the failure of the Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Servicer
or the Special Servicer so fails because such disclosure, in the reasonable
belief of the Servicer or the Special Servicer, as the case may be, would
violate any applicable law or any provision of a Mortgage Loan document
prohibiting disclosure of information with respect to the Mortgage Loans or the
Mortgaged Properties. The Servicer or the Special Servicer may affix to any
information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(c) As soon as reasonably practicable, upon the written request of
any Certificateholder, the Paying Agent shall provide the requesting
Certificateholder with such information that is in the Paying Agent's possession
or can reasonably be obtained by the Paying Agent (or the Trustee with respect
to information relating to the Trustee) as is requested by such
Certificateholder, for purposes of satisfying applicable reporting requirements
under Rule 144A under the Securities Act. Neither the Certificate Registrar, the
Paying Agent nor the Trustee shall have any responsibility for the sufficiency
under Rule 144A or any other securities laws of any available information so
furnished to any person including any prospective purchaser of a Certificate or
any interest therein, nor for the content or accuracy of any information so
furnished which was prepared or delivered to them by another. In addition,
pursuant to Section 8.12(b), the Paying Agent shall provide a financial market
publisher (which shall initially be Bloomberg, L.P.) certain current information
with respect to the Mortgaged Properties as set forth on Schedule I hereto.
(d) The Paying Agent shall file with the Commission, in respect of
the Trust Fund, the Uncertificated Lower-Tier Interests and the Certificates,
copies of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act (including Statement to
Certificateholders issued pursuant to Section 4.02(a) by means of a Current
Report on Form 8-K and an Annual Report on Form 10-K). The Servicer and the
Special Servicer agree to provide the Paying Agent with such information in a
timely fashion as may be requested by the Paying Agent in connection with such
Exchange Act reports. In the event that the Depositor determines that electronic
filing through the XXXXX System is required for any reports, the Depositor may
either (x) request that the Paying Agent process such filing or (y) cause the
filing to be processed by the Depositor or its designee upon receipt from the
Paying Agent of the reports, documents and other information described above.
Notwithstanding the foregoing, the Depositor shall file with the Commission,
within fifteen days after the Closing Date, a Current Report on Form 8-K
together with this Agreement.
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 either (i) deposit into the Lower-Tier Distribution
Account from its own funds an amount equal to the aggregate amount of P&I
Advances, if any, to be made in respect of the related Distribution Date, (ii)
apply amounts held in the Certificate Account for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make P&I Advances or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made. Any
amounts held in the Certificate Account for future distribution 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 and the Paying Agent 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 2 Business Days prior to such
Distribution Date. If the Servicer fails to make a required P&I Advance by 1:00
p.m., New York City time, on any P&I Advance Date, an Event of Default as set
forth in clause (a)(i) of Section 7.01 shall occur and the Trustee shall make
such P&I Advance pursuant to Section 7.05 by noon, New York City time, on the
related Distribution Date, unless the Servicer shall have cured such failure
(and provided written notice of such cure to the Trustee and the Paying Agent)
by 10:00 a.m. on such Distribution Date. In the event that the Servicer fails to
make a required P&I Advance hereunder, the Paying Agent shall notify the Trustee
of such circumstances by 1:30 p.m. (New York City time) on the related P&I
Advance 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 Servicing Fees) other than Balloon Payments, that were due during the
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 the Servicer or
any Sub-Servicer on behalf of the Servicer) and (ii) with respect to each
Mortgage 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 Mortgage 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.
(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 and as the case may be (in reverse of such order
with respect to any Mortgage Loan or REO Property), 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 make an advance for Excess Interest, Prepayment Premiums, Yield
Maintenance Charges or Penalty Charges and (ii) the amount required to be
advanced in respect of delinquent Monthly Payments or Assumed Scheduled Payments
on Mortgage Loans that have been subject to an Appraisal Reduction Event will
equal, with respect to any Distribution Date and any Mortgage Loan, the amount
that would be required to be advanced by the Servicer without giving effect to
the Appraisal Reduction less any Appraisal Reduction Amount with respect to such
Mortgage Loan for such Distribution Date.
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 Paying
Agent shall calculate the amount, if any, by which (i) the aggregate Stated
Principal Balance of the Mortgage 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 M
Certificates; second, to the Class L Certificates; third, to the Class K
Certificates; fourth, to the Class J Certificates; fifth, to the Class I
Certificates; sixth, to the Class H Certificates; seventh, to the Class G
Certificates; eighth, to the Class F Certificates; ninth, to the Class E
Certificates; tenth, to the Class D Certificates; eleventh, to the Class C
Certificates; twelfth, to the Class B Certificates, in each case, until the
remaining Certificate Balance of each such Class of Certificates has been
reduced to zero and thirteenth, to the Class A-1 Certificates and the Class A-2
Certificates pro rata (based upon Certificate Balance), until the remaining
Certificate Balances of such Classes of Certificates have been reduced to zero.
(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 Amount
of the Related Uncertificated Lower-Tier Interest with respect thereto as a
write-off.
Section 4.05 Appraisal Reductions.
--------------------
The aggregate Appraisal Reduction will be allocated by the Paying
Agent on each Distribution Date, only for purposes of determining the amount of
P&I Advances with respect to the related Mortgage Loan, to the Certificate
Balance of the Class M, Class L, 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. 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.
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 X Certificates) shall be
reduced by an amount equal to the amount of Mortgage Deferred Interest for all
Mortgage 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 M Certificates, second to the Class L Certificates, third to
the Class K Certificates, fourth to the Class J Certificates, fifth to the Class
I Certificates, sixth to the Class H Certificates, seventh to the Class G
Certificates, eighth to the Class F Certificates; ninth to the Class E
Certificates, tenth to the Class D Certificates; eleventh to the Class C
Certificates; twelfth to the Class B Certificates, and thirteenth, pro rata
(based upon Accrued Certificate Interest), to the Class A-1 and Class A-2
Certificates, in each case up to the respective Accrued Certificate Interest for
each such Class of Certificates for such Distribution Date.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class I, Class J, Class K, Class L and Class M Certificates shall be increased
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 Loan REMIC Residual Interest, the Excess Interest and the Excess Interest
Distribution Account shall be treated as a "grantor trust" under the Code, and
the provisions thereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Paying Agent shall furnish or cause to be
furnished to the Class S 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 and shall furnish or cause to be furnished (i) to the Holders
of the Class S Certificates, their allocable share of income with respect to
Excess Interest as such amounts accrue or are received, as the case may be,
after the related Anticipated Prepayment Date, and (ii) to the Holders of the
Class LR Certificates, such information relating to the Loan REMIC Residual
Interest represented thereby as is required by the REMIC Provisions, in each
case, 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-18. 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 S, 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 X Certificates will be issuable only in minimum Denominations
of authorized initial Notional Amount of not less than $1,000,000 and in
integral multiples of $1.00 in excess thereof. The Offered Certificates (other
than the Class X Certificates) will be issuable only in minimum Denominations of
authorized initial Certificate Balance of not less than $10,000, and in integral
multiples of $1.00 in excess thereof. The Non-Registered Certificates (other
than the Residual Certificates) will be issuable in minimum Denominations of
authorized initial Certificate Balance of not less than $250,000, and in
integral multiples of $1.00 in excess thereof. If the Original Certificate
Balance or initial Notional Amount, as applicable, of any Class does not equal
an integral multiple of $1.00, then a single additional Certificate of such
Class may be issued in a minimum denomination of authorized initial Certificate
Balance or initial Notional Amount, as applicable, that includes the excess of
(i) the Original Certificate Balance or initial Notional Amount, as applicable,
of such Class over (ii) the largest integral multiple of $1.00 that does not
exceed such amount. The Class S, Class R and Class LR Certificates will be
issuable only in one or more Definitive Certificates in denominations
representing Percentage Interests of not less than 20%. 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 Participants, as applicable, (ii) expressed
in terms of initial Certificate Balance or initial Notional Amount, 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, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 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 Chase
Manhattan Bank is removed as Paying Agent, then The Chase Manhattan Bank shall
be terminated as Authenticating Agent. If the Authenticating Agent 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, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 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 Chase
Manhattan Bank resigns or is removed as Certificate Registrar, the Trustee shall
immediately succeed to its predecessor's duties as Certificate Registrar. If The
Chase Manhattan Bank is removed as Paying Agent, then The Chase Manhattan Bank
shall be removed 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 Paying Agent, 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 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (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") substantially in the form of Exhibit C
attached hereto, which Investment Representation Letter shall certify, among
other things, that the transferee is an institutional "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act (an "Institutional Accredited Investor") or a "qualified institutional
buyer" as defined in Rule 144A under the Securities Act (a "Qualified
Institutional Buyer"), 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. No transfer of any interest in a Class S Certificate shall be made unless
such transfer is made to a Qualified Institutional Buyer and such transferee is
not an ERISA Prohibited Holder. The Certificate Registrar 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 (i) an Institutional Accredited Investor will require
delivery in the form of a Definitive Certificate and the Certificate Registrar
shall register such transfer only upon compliance with the foregoing provisions
of this Section 5.02(b) or (ii) a Qualified Institutional Buyer may only be
effectuated 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, (C) (OTHER THAN WITH RESPECT
TO A CLASS S OR RESIDUAL CERTIFICATE) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT,
OR (D) (OTHER THAN WITH RESPECT TO A CLASS S OR RESIDUAL
CERTIFICATE) 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 OR (OTHER
THAN WITH RESPECT TO A CLASS S OR RESIDUAL CERTIFICATE)
AN INSTITUTIONAL ACCREDITED INVESTOR, 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
ss. 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 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 Paying Agent, the Underwriters, the
Placement Agent 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, the Paying Agent, the Underwriters,
the Placement Agent, the Certificate Registrar or 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 request, 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 Mortgage Loans necessary to the provision of an Opinion of
Counsel described in this Section 5.02(c).
(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 Paying Agent 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) (i) 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 (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case 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 a
Permitted Transferee and 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 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 or is not a Permitted Transferee, 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; provided,
however, that the Certificate Registrar shall be under such liability for
a registration of Transfer of a Residual Certificate if it has actual
knowledge that the proposed Transferee is a Disqualified Organization or
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person in
violation of Section 5.02(d)(i)(C) above or is not a Permitted Transferee.
(iii) The Paying Agent 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.
(d) 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. Subject to the restrictions on transfer set forth in this Section 5.02
and Depository Rules, any Certificate Owner owning a beneficial interest in a
Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, 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 presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) 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-1,
Class A-2, Class B, Class C, Class D, Class E or Class X 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 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.
(f) The Certificate Registrar shall provide notice to the Trustee,
the Servicer, the Special Servicer, the Paying Agent and the Depositor of each
transfer of a Certificate on its books and records 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, 2001.
(g) 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 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. 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.
(h) 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 Section 5.02(e) above or 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 Paying
Agent, 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
Certificate Registrar 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, the Paying Agent
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, the Paying
Agent and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository, the Paying Agent shall notify the
affected Certificate Owners, through the Depository with respect to all, any
Class or any portion of any Class of the Certificates or (iii) the Trustee
determines that Definitive Certificates are required in accordance with the
provisions of Section 5.03(e), 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 5 Business Days of such request if made
at the Registrar Office, or within 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 Paying Agent, 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 if the Special Servicer or the
Servicer, on the Trustee's behalf, 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 Certificate
Registrar 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 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
Paying Agent, 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 Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d).
Section 5.06 Appointment of Paying Agent.
---------------------------
(a) The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 is hereby initially appointed Paying Agent to act on the
Trustee's behalf in accordance with the terms of this Agreement. If the Paying
Agent resigns or is terminated, the Trustee shall appoint a successor Paying
Agent which may be the Trustee or an Affiliate thereof to fulfill the
obligations of the Paying Agent hereunder which must be rated "A" or otherwise
be acceptable to the Rating Agencies, as evidenced by a written confirmation
that such appointment will not cause the downgrade, withdrawal or qualification
of the then current ratings of any Class of Certificates. The Trustee shall
enter into a side agreement with the Paying Agent, which agreement shall set
forth the amount of compensation the Paying Agent is entitled to retain from
amounts otherwise payable to the Trustee pursuant to Sections 3.05 and 8.05 of
the Pooling Agreement.
(b) The Paying Agent 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.
(c) The Paying Agent, at the expense of the Trust Fund (but only if
such amount constitutes "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii)), 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.
(d) The Paying Agent 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.
(e) The Paying Agent 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 Paying Agent of its duties or obligations
hereunder.
(f) The Paying Agent shall not be responsible for any act or
omission of the Servicer or the Special Servicer or of the Depositor.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE
SERVICER, THE SPECIAL SERVICER AND THE DIRECTING CERTIFICATEHOLDER
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.
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(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 Mortgage 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 (which may be limited to all or substantially all of its
assets related to commercial mortgage loan servicing) 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 result 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.
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(a) None of the Depositor, the Servicer, the Special Servicer or any
of the respective general partners, directors, officers, employees or agents of
any of the foregoing shall be under any liability to the Trust 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
Servicer, the Special Servicer 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 negligent disregard of obligations and
duties hereunder. The Depositor, the Servicer and the Special Servicer and any
general partner, director, officer, employee or agent of the Depositor, the
Servicer or the Special Servicer may rely in good faith on any document of any
kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Servicer, the
Special Servicer and any general partner of the foregoing and any director,
officer, member, manager, employee or agent of any of the foregoing shall be
indemnified and held harmless by the Trust against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses incurred in
connection with any legal action (whether in equity or at law) or claim relating
to this Agreement or the Certificates, other than any loss, liability or
expense: (i) specifically required to be borne thereby pursuant to the terms
hereof; (ii) incurred in connection with any breach of a representation,
warranty or covenant made by it herein; (iii) incurred by reason of bad faith,
willful misconduct or negligence in the performance of its obligations or duties
hereunder, or by reason of negligent disregard of such obligations or duties or
(iv) in the case of the Depositor and any of its directors, officers, employees
and agents, incurred in connection with any violation by any of them of any
state or federal securities law.
(b) None of the Depositor, the Servicer and the Special Servicer
shall be under any obligation to appear in, prosecute or defend any legal or
administrative action (whether in equity or at law), proceeding, hearing or
examination that is not incidental to its respective duties under this Agreement
or which in its opinion may involve it in any expense or liability not
recoverable from the Trust Fund; provided, however, that the Depositor, the
Servicer or the Special Servicer 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 and the Special Servicer shall
be entitled to be reimbursed therefor out of amounts attributable to the
Mortgage 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 and the Trust and any 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
costs, judgments, and any other 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 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; provided, that such indemnity
shall not cover indirect or consequential damages. The Trustee 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 Mortgage 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 (with counsel reasonably satisfactory to the Trustee
or the Depositor) 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.
(d) 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.
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign.
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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)
determination that such party's duties hereunder are no longer permissible under
applicable law or (b) in the case of the Servicer, upon the appointment of, and
the acceptance of such appointment by, a successor Servicer 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 the then current ratings assigned by such Rating
Agency to any Class of Certificates. Only the Servicer shall be permitted to
resign pursuant to clause (b) above. Any such determination permitting the
resignation of the Depositor, the Servicer or the Special Servicer pursuant to
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. Upon any termination or resignation of the Servicer hereunder, the
Servicer shall have the right and opportunity to appoint any successor Servicer
with respect to this Section 6.04 provided that such successor Servicer
otherwise meets the requirements set forth herein.
Notwithstanding the foregoing, the Servicer's right to appoint any
successor shall be subject to the requirements of this paragraph. Prior to
appointing any successor Servicer, the Servicer shall provide Chase written
notice (with a copy to the Trustee) of the proposed resignation and the price to
be paid to the Servicer by the successor Servicer for such appointment. Provided
Chase satisfies the requirements under this Agreement for a successor Servicer,
Chase shall be entitled to become the successor Servicer if within five Business
Days of receipt of such notice from the Servicer, Chase executes and delivers to
the Servicer a commitment to accept the appointment at the price proposed to be
paid by the successor Servicer and within 25 days of the notice delivers to the
Servicer: (a) the Rating Agency confirmations required by clause (b) above, (b)
cash consideration in the amount that the successor Servicer was willing to pay
to the Servicer for such appointment, and (c) an assumption in writing (with a
copy to the Trustee) of the obligations of the Servicer under this Agreement;
provided that Chase shall have an additional period of time, not to exceed 45
days following receipt of such notice from the Servicer, to deliver the Rating
Agency confirmations so long as Chase has been using, and continues to use, its
best efforts to obtain such Rating Agency confirmations and Chase is an
acceptable or approved master servicer to the Rating Agencies as a Servicer of
commercial loans. If Chase fails to execute and deliver to the servicer such
commitment or deliver such items within such time period, the Servicer may
appoint the successor Servicer.
Section 6.05 Rights of the Depositor in Respect of the Servicer and
the Special Servicer.
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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.
Section 6.06 Rating Agency Fees.
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The Servicer shall pay, from its own funds, the annual fees of each
Rating Agency in an amount not to exceed $35,000.
Section 6.07 The Directing Certificateholder.
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The Directing Certificateholder shall be entitled to advise the
Special Servicer with respect to the following actions of the Special Servicer
with respect to any Specially Serviced Mortgage Loan, and notwithstanding
anything herein to the contrary, except as set forth in, and in any event
subject to, the second paragraph of this Section 6.07, the Special Servicer
shall not be permitted to take any of the following actions as to which the
Directing Certificateholder has objected in writing within 10 Business Days of
being notified thereof (provided that if such written objection has not been
received by the Special Servicer within such 10 Business Day period, then the
Directing Certificateholder's approval shall be deemed to have been given):
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification of a monetary term of a Specially Serviced
Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund) for less
than the applicable Purchase Price;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral for a
Specially Serviced Mortgage Loan other than pursuant to the terms of the
related Specially Serviced Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Specially Serviced Mortgage Loan; and
(vii) any acceptance of an assumption agreement releasing a borrower
from liability under a Specially Serviced Mortgage Loan other than
pursuant to the terms of such Specially Serviced Mortgage Loan;
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole), the Special Servicer may take any such action without waiting
for the Directing Certificateholder's response.
In addition, the Directing Certificateholder may direct the Special
Servicer to take, or to refrain from taking, such other actions with respect to
a Specially Serviced Mortgage Loan as the Directing Certificateholder may deem
advisable or as to which provision is otherwise made herein; provided that
notwithstanding anything herein to the contrary, no such direction, and no
objection contemplated by the preceding paragraph, may require or cause the
Special Servicer to violate any provision of this Agreement or the REMIC
Provisions, including without limitation the Special Servicer's obligation to
act in accordance with the Servicing Standards, or expose the Servicer, the
Special Servicer, the Trust Fund or the Trustee to liability, or materially
expand the scope of the Special Servicer's responsibilities hereunder or cause
the Special Servicer to act, or fail to act, in a manner which in the reasonable
judgment of the Special Servicer is not in the best interests of the
Certificateholders.
Any costs and expenses incurred by the Special Servicer in obtaining
such consent will be borne by the Directing Certificateholder. In the event the
Special Servicer determines that a refusal to consent by the Directing
Certificateholder or any advice from the Directing Certificateholder would
otherwise cause the Special Servicer to violate the terms of this Agreement,
including without limitation, the Servicing Standards, the Special Servicer
shall disregard such refusal to consent or advice and notify the Directing
Certificateholder, the Trustee and the Rating Agencies of its determination,
including a reasonably detailed explanation of the basis therefor.
The Directing Certificateholder shall have no 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 the Directing Certificateholder shall not be
protected 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 reckless disregard of obligations or duties. 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, that the Directing Certificateholder may act solely in the
interests of the Holders of the Controlling Class, that the Directing
Certificateholder does not have any duties to the Holders of any Class of
Certificates other than the Controlling Class, that the Directing
Certificateholder may take actions that favor the interests of the Holders of
the Controlling Class over the interests of the Holders of one or more other
classes of Certificates, that the Directing Certificateholder, absent willful
misfeasance, bad faith or negligence, shall not be deemed to have been negligent
or reckless, or to have acted in bad faith or engaged in willful misfeasance, by
reason of its having acted solely in the interests of the Holders of the
Controlling Class, and that the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.
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(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) (A) any failure by the Servicer to make any deposit required to
be made by the Servicer to the Certificate Account on the day and by the
time such remittance is required to be made under the terms of this
Agreement, which failure is not remedied within one Business Day or (B)
any failure by the Servicer to deposit into, or remit to the Paying Agent
for deposit into, any Distribution Account any amount required to be so
deposited or remitted, which failure is not remedied by 10:00 a.m. (New
York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, or to remit to the Servicer for deposit into, the Certificate
Account, or to deposit into, or to remit to the Paying Agent for deposit
into, the Lower-Tier Distribution Account any amount required to be so
deposited or remitted by the Special Servicer 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 of its
other covenants or obligations contained in this Agreement which continues
unremedied for a period of 30 days (10 days in the case of a failure to
make a Servicing Advance or 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, with a copy to
each other party to this agreement by the Holders of Certificates of any
Class evidencing, as to such Class, Percentage Interests aggregating not
less than 25%; provided, however, if such failure is capable of being
cured and the Servicer or Special Servicer, as applicable, is diligently
pursuing such cure, such 30-day period will be extended an additional 30
days; 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%; provided, however, if
such breach is capable of being cured and the Servicer or Special
Servicer, as applicable, is diligently pursuing such cure, such 30-day
period will be extended an additional 30 days;
(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, undismissed 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 either
Rating Agency 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
downgrade or withdrawal of the then-current rating on any Class of
Certificates that are rated by such Rating Agency; provided that the
publication of a ratings watch due to the continuation of the Special
Servicer with respect to the Certificates will be deemed notice for
purposes of this Section 7.01(a)(viii).
(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 Mortgage 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 Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee with respect to a
termination of the Servicer and to the Servicer with respect to a termination of
the Special Servicer pursuant to and under this Section, and, without
limitation, the Trustee or Servicer, as applicable, is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. 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 or the Servicer, as applicable,
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 or the Servicer, as applicable, 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 5 Business Days to the Trustee or the Servicer,
as applicable, 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 Mortgage 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, managers, officers, members, 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 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 reasonable actions as are required by them in order to (i) maintain
their respective status as an approved servicer and special servicer, as
applicable as pertains to this transaction, with each of the Rating Agencies and
(ii) maintain their respective ratings by Fitch at a level no lower than "CMS3"
for the Servicer and "CSS3" for the Special Servicer.
(e) If GE Capital Loan Services, Inc. ("GECLS") resigns or is
terminated as Servicer hereunder, Chase shall be offered the first opportunity
to accept the appointment as successor Servicer. If GECLS is terminated because
of the events specified in Sections 7.01 (a)(viii) and Chase and GECLS have been
unable to agree upon terms or Chase has declined or otherwise been unable to
accept that appointment, as the case may be, within five Business Days of
receipt of notice from GECLS, then, if GECLS delivers to the Trustee proposed
bid materials within five Business Days after such termination, the Trustee
shall, within the next five Business Days, using such bid materials, solicit
good faith bids for the rights to master service the Mortgage Loans under this
Agreement from three Qualified Bidders or, if three Qualified Bidders cannot be
located, then from such fewer number as the Trustee can determine are Qualified
Bidders. The Trustee shall have no obligation to review and shall have no
liability or responsibility for the information in the bid materials, and shall
be entitled to include a disclaimer to such effect with such bid materials. The
bid proposal shall require any Successful Servicing Bidder (as defined below),
as a condition of such bid, to (i) enter into this Agreement as successor
Servicer and to agree to be bound by the terms hereof and (ii) enter into the
Chase Sub-Servicing Agreement as successor Servicer and to agree to be bound by
its terms, within 40 days after the termination of GECLS, provided, however,
that GECLS may request and obtain an additional 15 days for such sale and
assumption to be completed so long as GECLS delivers to the Trustee an Officer's
Certificate stating that the sale and assumption of the rights to master service
the Mortgage Loans cannot be completed in the initial 40-day period and
specifying the reasons. The Trustee shall solicit bids at a master servicing fee
rate of [0.03]% per annum per Mortgage Loan serviced (i) on the basis of such
successor Servicer retaining Chase to continue the primary servicing of the
Mortgage Loans pursuant to the terms of the Chase Sub-Servicing Agreement and
entering into a Sub-Servicing Agreement with GECLS to service each of the
Mortgage Loans not subject to the Chase Sub-Servicing Agreement (each, a
"Servicing Retained Bid") or (ii) on the basis of retaining Chase and the Chase
Sub-Servicing Agreement and having no obligation to enter into a Sub-Servicing
Agreement with GECLS (each, a "Servicing Released Bid"). The Trustee shall
select the Qualified Bidder with the highest cash Servicing Retained Bid (or, if
none, the highest cash Servicing Released Bid) (the "Successful Servicing
Bidder") to act as successor Servicer hereunder. The Trustee shall direct the
Successful Servicing Bidder to enter into this Agreement and the Chase
Sub-Servicing Agreement as successor Servicer pursuant to the terms hereof (and,
if the successful bid was a Servicing Retained Bid, to enter into a
Sub-Servicing Agreement with GECLS as contemplated above), no later than 40 days
after the termination of GECLS, provided, however, that GECLS may request and
obtain an additional 15 days for such sale and assumption to be completed so
long as GECLS delivers to the Trustee an Officer's Certificate stating that the
sale and assumption of the right to master service the Mortgage Loans cannot be
completed in the initial 40-day period and specifying the reasons.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Servicing Bidder, including the transfer of
the servicing of the Mortgage Loans, the Trustee shall remit or cause to be
remitted (i) if the successful bid was a Servicing Retained Bid, to GECLS the
amount of such cash bid received from the Successful Servicing Bidder (net of
expenses in connection with obtaining such bid, including, without limitation,
reasonable attorneys' fees, and out-of-pocket expenses incurred in connection
with transferring the servicing of the Mortgage Loans) and (ii) if the
successful bid was a Servicing Released Bid, to GECLS the amount of such cash
bid received from the Successful Servicing Bidder (net of expenses in connection
with obtaining such bid, including, without limitation, reasonable attorneys'
fees, and out-of-pocket expenses incurred by the Trustee in connection with
transferring the servicing of the Mortgage Loans) and GECLS shall remit to any
subservicer (other than Chase) its proportionate share of such proceeds, if
applicable .
If the Successful Servicing Bidder has not entered into this
Agreement and the Chase Sub-Servicing Agreement as successor Servicer within 40
days (or, if the sale period has been extended as contemplated above, within 55
days) after the termination of GECLS or no Successful Servicing Bidder was
identified within such period, GECLS shall reimburse the Trustee for all
out-of-pocket expenses incurred by the Trustee in connection with such bid
process, and the Trustee shall have no further obligations under this Section
7.01(e) and may, subject to Chase's rights in the first sentence of this Section
7.01(e), promptly select a successor Servicer of its choice and pursuant to the
terms hereof.
A "Qualified Bidder" will be any prospective master servicer
candidate which is an acceptable or approved master servicer to each Rating
Agency and would be eligible to act as Servicer hereunder without causing the
qualification, downgrade or withdrawal of the ratings then assigned to the
Certificates.
No resignation or termination of GECLS as Servicer shall be
effective, and the Servicer shall continue to perform as such and to collect its
Servicing Fee until the conclusion of the process described in this Section
7.01(e) and the acceptance of appointment by a successor Servicer.
Section 7.02 Trustee to Act; Appointment of Successor.
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On and after the time the Servicer or the Special Servicer, as the
case may be, either resigns pursuant to Subsection (a) of 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 and the Servicer shall be the
successor to the Special Servicer, as applicable, 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, and have
the benefit of, all of the rights, benefits, 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 or Servicer, as applicable, 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 or the Servicer, as applicable, be required to purchase any Mortgage
Loan hereunder solely as a result of its obligations as successor Servicer or
Special Servicer, as the case may be. As compensation therefor, the Trustee as
successor Servicer shall be entitled to the Servicing Fees and all fees relating
to the Mortgage 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 the
Servicer 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 or the
Servicer, as applicable, succeed to the capacity of the Servicer or the Special
Servicer, as the case may be, the Trustee or the Servicer, as applicable, 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 or Servicer, as applicable, hereunder.
Notwithstanding the above, the Trustee or the Servicer, as applicable, may, if
it shall be unwilling to act as successor to the Servicer or Special Servicer,
as the case may be, or shall, if it is unable to so act, or if the Trustee or
Servicer, as applicable, 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 in Section 6.04 and otherwise 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
or the Servicer, as applicable, shall be prohibited by law from so acting, the
Trustee or the Servicer, as applicable, 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
or the Servicer, as applicable, may make such arrangements for the compensation
of such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation 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.
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 the affected Classes. 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. Upon any
such waiver of an Event of Default by Certificateholders, the Trustee shall be
entitled to recover all costs and expenses incurred by it in connection with
enforcement action taken with respect to such Event of Default prior to such
waiver from the Trust Fund. 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 as Maker of Advances.
----------------------------
(a) In the event that the Servicer fails to fulfill its obligations
hereunder to make any Advances and such failure remains uncured, the Trustee
shall perform such obligations (x) within five Business Days of the Event of
Default resulting from such failure by the Servicer with respect to Servicing
Advances to the extent a Responsible Officer of the Trustee has actual knowledge
of such failure with respect to such Servicing Advances and (y) by noon, New
York City time, on the related Distribution Date with respect to P&I Advances
pursuant to the Paying Agent's notice of failure pursuant to Section 4.03(a)
unless the Trustee has received notice that such failure has been cured by 10:00
a.m. on such Distribution Date. 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, 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 notify the party providing such instrument
and requesting the correction thereof. 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 or another Person (other than the Trustee), 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 or bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
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 such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; the
Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) The Trustee shall not be liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 50% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity from
such requesting Holders 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, including, without
limitation, notice of any publication as contemplated under the proviso of
Section 7.01(a)(viii), the Trustee shall not be deemed to have notice of
any Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office, and such notice references the Certificates or this Agreement; and
(viii) The Trustee shall not be responsible for any act or omission
of the Servicer or the Special Servicer (unless the Trustee is acting as
Servicer or Special Servicer, as the case may be) or of the Depositor.
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage 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 Certificate Registrar 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 makes no 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 Mortgage 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 Mortgage 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 or the Paying Agent (unless the Trustee is acting as Paying Agent). The
Trustee and the Paying Agent 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, or the Paying Agent, as
applicable, in good faith, pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates.
----------------------------
The Trustee its individual capacity, not as Trustee, may become the
owner or pledgee of Certificates, and may deal with the Depositor, the Servicer,
the Special Servicer, the Placement Agent and the Underwriters in banking
transactions, with the same rights it would have if it were not Trustee.
Section 8.05 Fees and Expenses of Trustee; Indemnification of
Trustee.
------------------------------------------------
(a) As compensation for the performance of its duties, the Trustee
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 monthly on a Mortgage
Loan-by-Mortgage Loan basis. As to each Mortgage Loan and REO Loan, the Trustee
Fee shall accrue from time to time at the Trustee Fee Rate and shall be computed
on the basis of the Stated Principal Balance of such Mortgage Loan and a 360-day
year consisting of twelve 30-day months. 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 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 Certificate Account or 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 or successor Special
Servicer, to the extent not otherwise paid hereunder) arising out of, or
incurred in connection with, any act or omission of the Trustee, relating to the
exercise and performance of any of the powers and duties of the Trustee
hereunder; provided, however, that neither the Trustee, nor any of the other
above specified Persons shall be entitled to indemnification pursuant to this
Section 8.05(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 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 the
termination of this Agreement and 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, national banking
association or a trust company, 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 $100,000,000 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 Xxxxx'x (or such entity as would not, as evidenced in writing by such
Rating Agency, result in the qualification, downgrading or withdrawal of any of
the 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 Paying Agent
administers the Loan REMIC, the Upper-Tier REMIC and the Lower-Tier REMIC or in
which the Trustee's office is located 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 Paying Agent or
the Trustee, as applicable 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 or (iii) administer the Loan REMIC, 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, or if the Trustee or Paying Agent (if different than the Trustee)
shall fail (other than by reason of the failure of either the Servicer or the
Special Servicer to timely perform its obligations hereunder or as a result of
other circumstances beyond the Trustee's or Paying Agent's, as applicable,
reasonable control), to timely publish any report to be delivered, published or
otherwise made available by the Trustee or Paying Agent, as applicable, pursuant
to Section 4.02 and such failure shall continue unremedied for a period of five
days, or if the Trustee or Paying Agent (if different from the Trustee) fails to
make distributions required pursuant to Section 3.05(b), 4.01 or 9.01, then the
Depositor may remove the Trustee or Paying Agent, as applicable, and appoint a
successor trustee acceptable to the Servicer or paying agent acceptable to the
Trustee, as applicable, by written instrument, in duplicate, which instrument
shall be delivered to the Trustee so removed and to the successor trustee in the
case of the removal of the 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.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until 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 (including without limitation, unreimbursed
Advances). 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, at Custodian's option 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
Paying Agent and the Trustee three copies 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 and the Paying Agent, the
Depositor promptly shall inform the Trustee of such event and shall deliver to
the Paying Agent and the Trustee a copy of the private placement memorandum or
disclosure document, as revised, amended or supplemented. The Paying Agent (or
with respect to item (ii)(j) below, the Trustee) shall maintain at its offices
primarily responsible for administering the Trust Fund and shall, upon
reasonable advance notice, make available during normal business hours for
review by any Holder of a Certificate, the Depositor, the Servicer, the Special
Servicer, any Rating Agency or any other Person to whom the Paying Agent (or the
Trustee, if applicable) believes such disclosure is appropriate, originals or
copies of the following items: (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
Paying Agent and (ii) in all cases, (a) this Agreement and any amendments hereto
entered into pursuant to Section 11.01, (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 Paying
Agent since the Closing Date pursuant to Section 3.13, (d) all accountants'
reports delivered to the Paying Agent 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 Paying Agent and Servicer
in respect of each Mortgaged Property pursuant to Section 3.12(a), (f) as to
each Mortgage 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 Paying Agent pursuant to
Section 3.12(b), together with the accompanying written reports to be prepared
by the Special Servicer and delivered to the Paying Agent pursuant to Section
3.12(b), (g) any and all notices, reports and Environmental Assessments
delivered to the Paying Agent with respect to any Mortgaged Property securing a
Defaulted Mortgage 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 Mortgage Loan are part of the Trust
Fund), (h) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into by the Servicer or the Special Servicer and delivered
to the Paying Agent pursuant to Section 3.20 (but only for so long as the
affected Mortgage Loan is part of the Trust Fund), (i) any and all Officer's
Certificates delivered to the Paying Agent 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 Mortgage 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 Mortgage 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 Paying
Agent upon request; provided, however, that the Paying Agent 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, any Class F, Class G, Class H, Class I, Class
J, Class K, Class L and Class M Certificateholder may upon request from the
Paying Agent obtain a copy of any factual report (other than the Asset Status
Report) delivered to the Rating Agencies under this Agreement.
(b) The Paying Agent shall provide certain financial market
publishers, which initially shall be Bloomberg, L.P., on a quarterly basis,
current information regarding the items listed on Schedule 1 hereto with respect
to the Mortgaged Properties, to the extent such information due from Mortgagors
has been received from the Mortgagors and such Mortgagors have authorized the
release of such information. If any such information is provided on or before
September 20, 2000, the Servicer shall provide the Prospectus to Bloomberg, L.P.
(c) 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
Paying Agent 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 Paying Agent, to any
Certificateholder, the Underwriters, the Placement Agent, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the Paying
Agent, 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.
(d) With respect to any information furnished by the Paying Agent
pursuant to this Section 8.12, the Paying Agent shall be entitled to indicate
the source of such information and the Paying Agent may affix thereto any
disclaimer it deems appropriate in its discretion. The Paying Agent 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 Paying Agent
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 Paying Agent, as applicable, generally to the effect that such Person is
a beneficial holder of Certificates, 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, confirmation executed by the requesting Person in form
and substance reasonably acceptable to the Paying Agent, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Paying Agent shall not 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 national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations 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
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
-------------------------------------------------
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Paying Agent, the
Depositor, the Servicer, the Special Servicer and the Trustee (other than the
obligations of the Paying Agent or Trustee, as applicable, 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
Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates of all the Mortgage 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 Mortgage Loans (exclusive of REO Loans)
included in the Trust Fund, (2) the Appraised Value of each REO Property, if
any, included in the Trust Fund (such Appraisals in clause (a)(2) to be
conducted by an Independent MAI-designated 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 unless the Controlling Class is the only Class of
Certificates then outstanding)) and (3) the reasonable out-of-pocket expenses of
the Servicer with respect to such termination, unless the Servicer is the
purchaser of such Mortgage Loans, 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(e) 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 Mortgage Loan or REO Property remaining in the Trust Fund;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. James's, living on the date hereof.
The Servicer, the Special Servicer, the Holders of the Controlling
Class or the Holders of the Class LR Certificates may, at their option, elect to
purchase all of the Mortgage 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, the Paying Agent and the other parties hereto no later
than 60 days prior to the anticipated date of purchase; provided, however, that
the Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates may so elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust Fund only on or
after the first Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Loans set forth in the Preliminary Statement. In the event that the Servicer,
the Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates purchases all of the Mortgage Loans and each REO Property
remaining in the Trust Fund in accordance with the preceding sentence, the
Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates, 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 Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates, as
applicable, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
the Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates, as applicable, as shall be necessary to
effectuate transfer of the Mortgage Loans and REO Properties remaining in the
Trust Fund.
For purposes of this Section 9.01, the Holders of the Controlling
Class shall have the first option to terminate the Trust Fund, then the Special
Servicer, then the Servicer, and then the Holders of the Class LR Certificates.
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 Paying Agent by letter to 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 Mortgage 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 (i) distributions in respect of the Loan REMIC
Interests from the Certificate Account to the Lower-Tier Distribution Account
and (ii) 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 Paying Agent 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 in
respect of the Loan REMIC Interests and from the Lower-Tier Distribution Account
to the Upper-Tier Distribution Account as of the final Distribution Date
(exclusive of any portion of such amounts payable or reimbursable to any Person
pursuant to clause (ii) of Section 3.05(c)) shall be allocated for the purposes,
in the amounts and in accordance with the priority set forth in Sections 4.01(a)
and shall be distributed in termination and liquidation of the Loan REMIC
Regular Interest, the Uncertificated Lower-Tier Interests and the Class LR
Certificates in accordance with Sections 4.01(b) and 4.01(j). Any funds not
distributed on such Distribution Date shall be set aside and held uninvested in
trust for the benefit of the 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(g).
Section 9.02 Additional Termination Requirements.
-----------------------------------
In the event the Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchases all of
the Mortgage Loans and each REO Property remaining in the Trust Fund as provided
in Section 9.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Paying Agent shall specify the date of adoption of the plan
of complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the Loan
REMIC's, the Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax
Return pursuant to Treasury Regulations, Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Paying
Agent on behalf of the Trustee shall sell all of the assets of the Trust
Fund to the Servicer, the Special Servicer, the Holders of the Controlling
Class or the Holders of the Class LR Certificates, as applicable, for
cash;
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Loan REMIC Regular
Interest, the Uncertificated Lower-Tier Interests and the Certificates,
the Paying Agent shall distribute or credit, or cause to be distributed or
credited, to the Holders of the Class LR Certificates (in the case of the
Loan REMIC and 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 Loan REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that time.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.
--------------------
(a) The Paying Agent shall make elections or cause elections to be
made to treat each of the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier
REMIC as a REMIC under the Code and, if necessary, under Applicable State and
Local Tax Law. Such election will be made on Form 1066 or other appropriate
federal tax return for the taxable year ending on the last day of the calendar
year in which the Loan REMIC Interests, the Uncertificated Lower-Tier Interests
and the Certificates are issued. For the purposes of the REMIC election in
respect of the Upper-Tier REMIC, each Class of the Regular Certificates shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the Upper-Tier REMIC.
For purposes of the REMIC election in respect of the Lower-Tier REMIC, each
Class of Uncertificated Lower-Tier Interests shall be designated as the "regular
interests" and the Class LR Certificates shall be designated as representing the
sole class of "residual interests" in the Lower-Tier REMIC. The Colorado Square
Loan shall constitute the sole asset of a separate REMIC. The Loan REMIC Regular
Interest (instead of the related Mortgage Loan) will be an asset of the
Lower-Tier REMIC and the Class LR Certificates shall represent beneficial
ownership of the Loan REMIC Residual Interest. None of the Special Servicer, the
Servicer, the Paying Agent and the Trustee shall permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in the Loan REMIC,
the Lower-Tier REMIC or the Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section 860G(a)(9) of the Code. The "startup day" of the Loan REMIC shall be as
specified in the Loan REMIC Declaration.
(c) The Paying Agent shall administer the Loan REMIC in accordance
with the Loan REMIC Declaration and the REMIC Provisions and shall comply with
and perform all federal and, if applicable, state and local income tax return
and information reporting requirements with respect to such Loan REMIC, and
shall otherwise administer the Loan REMIC in the same manner as specified for
the Trust REMICs in this Section 10.01. The Colorado Square Loan shall be
serviced and administered in accordance with the provisions of Article III
hereof and the Loan REMIC Declaration. The Paying Agent shall maintain separate
accounting with respect to the Loan REMIC sufficient (i) to comply with such
return and information reporting requirements, including quarterly and annual
reporting on Schedule Q to Form 1066 to the holders of the Class LR Certificates
with respect to the Loan REMIC Residual Interest, (ii) to account for the Loan
REMIC Regular Interest as an asset of the Lower-Tier REMIC, (iii) to pay or
cause to be paid any federal, state or local income tax attributable to a Loan
REMIC from payments received on or with respect to the related Mortgage Loan,
and (iv) to cause any payments on the related Mortgage Loan in excess amounts
distributable in respect of the related Loan REMIC Regular Interest to be
distributed in respect of the related Loan REMIC Residual Interest.
(d) The Paying Agent shall act on behalf of each REMIC in relation
to any tax matter or controversy involving either REMIC and shall represent each
REMIC in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The legal
expenses, including without limitation attorneys' or accountants' fees, and
costs of any such proceeding and any liability resulting therefrom shall be
expenses of the Trust Fund and the Paying Agent shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans and any
REO Properties on deposit in the Certificate Account as provided by Section
3.05(a) unless such legal expenses and costs are incurred by reason of the
Paying Agent's willful misfeasance, bad faith or gross negligence. The Holder of
the largest Percentage Interest in each of the Class R and Class LR Certificates
shall be designated, in the manner provided under Treasury Regulations Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T, as the
"tax matters person" of the Upper-Tier REMIC and the Lower-Tier REMIC and the
Loan REMIC, respectively. By their acceptance thereof, the Holders of the
largest Percentage Interest in each of the Class R and Class LR Certificates
hereby agrees to irrevocably appoint the Paying Agent as their agent to perform
all of the duties of the "tax matters person" for the Upper-Tier REMIC and the
Lower-Tier REMIC and the Loan REMIC, respectively.
(e) The Paying Agent shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier
REMIC created hereunder deliver those Tax Returns that require signature in a
timely manner to the Trustee and the Trustee shall sign such Tax Returns in a
timely manner. The ordinary expenses of preparing such returns shall be borne by
the Paying Agent without any right of reimbursement therefor. The Paying Agent
agrees to indemnify and hold harmless the Trustee with respect to any tax or
liability arising from the Trustee's signing of Tax Returns that contain errors
or omissions.
(f) The Paying Agent shall provide or cause to be provided (i) to
any Transferor of a Class R Certificate or Class LR Certificate such information
as is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811 the name,
title, address and telephone number of the "tax matters person" who will serve
as the representative of each of the Loan REMIC, the Lower-Tier REMIC and the
Upper-Tier REMIC created hereunder.
(g) The Paying Agent shall take such actions and shall cause the
Trust Fund to take such actions as are reasonably within the Paying Agent's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status of each of the Loan REMIC, the Lower-Tier
REMIC and the Upper-Tier REMIC as a REMIC under the REMIC Provisions (and the
Trustee shall assist the Paying Agent, to the extent reasonably requested by the
Paying Agent to do so). Neither the Servicer nor the Special Servicer shall
knowingly or intentionally take any action, cause the Trust Fund 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) endanger the status of any of the Loan REMIC, the Lower-Tier REMIC or
the Upper-Tier REMIC as a REMIC or (ii) result in the imposition of a tax upon
any of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC or the Trust
Fund (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, but not including the tax on
"net income from foreclosure property") (either such event, an "Adverse REMIC
Event") unless the Paying Agent 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 the Paying Agent 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 the Paying Agent or the Trustee)
to the effect that the contemplated action will not, with respect to the Trust
Fund, the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC created
hereunder, endanger such status or, unless the Paying Agent determines in its
sole discretion to indemnify the Trust Fund against such tax, result in the
imposition of such a tax (not including a tax on "net income from foreclosure
property"). The Trustee shall not take or fail to take any action (whether or
not authorized hereunder) as to which the Paying Agent has advised it in writing
that it has received an Opinion of Counsel to the effect that an Adverse REMIC
Event could occur with respect to such action. In addition, prior to taking any
action with respect to the Trust Fund, the Loan REMIC, the Lower-Tier REMIC or
the Upper-Tier REMIC or any of its assets, or causing the Trust Fund or the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to take any action, which is
not expressly permitted under the terms of this Agreement, the Trustee will
consult with the Paying Agent or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur with respect to
the Trust Fund or any of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier
REMIC and the Trustee shall not take any such action or cause the Trust Fund or
any of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to take any
such action as to which the Paying Agent has advised it in writing that an
Adverse REMIC Event could occur. The Paying Agent may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not expressly permitted by this Agreement, but in no
event at the expense of the Paying Agent or the Trustee. At all times as may be
required by the Code, the Paying Agent will to the extent within its control and
the scope of its duties more specifically set forth herein, maintain
substantially all of the assets of each of the Loan REMIC, the Lower-Tier REMIC
and the Upper-Tier REMIC as "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(h) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on any of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier
REMIC, such tax shall be charged against amounts otherwise distributable to the
Holders of the Certificates, except as provided in the last sentence of this
Section 10.01(h); provided, that with respect to the estimated amount of tax
imposed on any "net income from foreclosure property" pursuant to Code Section
860G(c) or any similar tax imposed by a state or local tax authority, the
Special Servicer shall retain in the related REO Account a reserve for the
payment of such taxes in such amounts and at such times as it shall deem
appropriate (or as advised by the Servicer in writing), and shall remit to the
Servicer such reserved amounts as the Servicer shall request in order to pay
such taxes. Except as provided in the preceding sentence, the Servicer shall
withdraw from the Certificate Account sufficient funds to pay or provide for the
payment of, and to actually pay, such tax as is estimated to be legally owed by
any of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC (but such
authorization shall not prevent the Paying Agent from contesting, at the expense
of the Trust Fund (other than as a consequence of a breach of its obligations
under this Agreement), any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The Paying Agent is hereby authorized to and shall segregate, into
a separate non-interest bearing account, the net income from any "prohibited
transaction" under Code Section 860F(a) or the amount of any taxable
contribution to the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC
after the Startup Day that is subject to tax under Code Section 860G(d) and use
such income or amount, to the extent necessary, to pay such prohibited
transactions tax. To the extent that any such tax (other than any such tax paid
in respect of "net income from foreclosure property") is paid to the Internal
Revenue Service or applicable state or local tax authorities, the Paying Agent
shall retain an equal amount from future amounts otherwise distributable to the
Holders of Residual Certificates (as applicable) and shall distribute such
retained amounts, (x) in the case of the Loan REMIC, to the related Loan REMIC
Interests to the extent that distributions thereon were previously reduced by
the amount of such taxes; (y) in the case of the Lower-Tier REMIC, to the
Holders of the Uncertificated Lower-Tier Interests to the extent they are fully
reimbursed for any Collateral Support Deficit arising therefrom and then to the
Holders of the Class LR Certificates in the manner specified in Section 4.01(b)
and (z) in the case of the Upper-Tier REMIC, to the Holders of Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class I, Class J, Class K,
Class L, Class M and Class X Certificates, as applicable, in the manner
specified in Section 4.01(a), to the extent they are fully reimbursed for any
Collateral Support Deficit arising therefrom and then to the Holders of the
Class R Certificates. None of the Trustee, the Paying Agent, the Servicer or the
Special Servicer shall be responsible for any taxes imposed on any of the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC except to the extent such
taxes arise as a consequence of a breach of their respective obligations under
this Agreement.
(i) The Trustee (but only to the extent, if any, specifically
required to maintain books and records hereunder) and the Paying Agent shall,
for federal income tax purposes, maintain books and records with respect to each
of the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier 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 Paying Agent nor the
Trustee shall accept any contributions of assets to the Loan REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC unless the Paying Agent 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 the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC will not
(i) cause any of the Loan REMIC, 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 or (ii) subject any of the Trust Fund,
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to any tax under
the REMIC Provisions or other applicable provisions of federal, state and local
law or ordinances.
(k) Neither the Paying Agent nor the Trustee shall enter into any
arrangement by which the Trust Fund or any of the Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC will receive a fee or other compensation for
services nor permit the Trust Fund or any of the Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(l) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Certificate Balance of each Class of Certificates representing a "regular
interest" in the Upper-Tier REMIC and by which the Lower-Tier Principal Amount
of each Class of Uncertificated Lower-Tier Interests representing a "regular
interest" in the Lower-Tier REMIC would be reduced to zero is January 15, 2020,
which is the Distribution Date immediately following the latest scheduled
maturity of any Mortgage Loan. The "latest possible maturity date" of the Loan
REMIC Regular Interest shall be as specified in the Loan REMIC Declaration.
(m) Within 30 days after the Closing Date, the Paying Agent 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" for the Upper-Tier REMIC.
(n) None of the Trustee, the Servicer or the Special Servicer, as
applicable, shall sell, dispose of or substitute for any of the Mortgage Loans
(except in connection with (i) the default, imminent default or foreclosure of a
Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgaged Property acquired by foreclosure or deed in lieu of foreclosure, (ii)
the bankruptcy of the Trust Fund, (iii) the termination of the Trust Fund
pursuant to Article IX of this Agreement or (iv) a purchase of Mortgage Loans
pursuant to Article II or III of this Agreement) or acquire any assets for the
Trust Fund or the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC or
sell or dispose of any investments in the Certificate Account or the REO Account
for gain unless it has received an Opinion of Counsel that such sale,
disposition or substitution will not (a) affect adversely the status of the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) unless the
Servicer or the Special Servicer, as applicable, has determined in its sole
discretion to indemnify the Trust Fund against such tax, cause the Trust Fund or
any of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to be
subject to a tax on "prohibited transactions" pursuant to the REMIC Provisions.
Section 10.02 Depositor, Servicer and Special Servicer to Cooperate
with Paying Agent.
-----------------------------------------------------
(a) The Depositor shall provide or cause to be provided to the
Paying Agent, within 10 days after the Closing Date, all information or data
that the Paying Agent reasonably determines to be relevant for tax purposes as
to the valuations and issue prices of the Certificates, including, without
limitation, the price, yield, Prepayment Assumption and projected cash flow of
the Certificates.
(b) The Servicer, the Special Servicer, the Paying Agent and the
Trustee shall each furnish such reports, certifications and information, and
upon reasonable notice and during normal business hours, access to such books
and records maintained thereby, as may relate to the Certificates or the Trust
Fund and as shall be reasonably requested by the Paying Agent in order to enable
it to perform its duties hereunder.
Section 10.03 Use of Agents.
-------------
The Paying Agent shall execute all of its obligations and duties
under this Article X through its corporate trust department located at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Paying Agent may execute any of its
obligations and duties under this Article X either directly or by or through
agents or attorneys. The Paying Agent shall not be relieved of any of its duties
or obligations under this Article X by virtue of the appointment of any such
agents or attorneys.
[End of Article X]
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 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, the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, or the Grantor Trust as a grantor trust 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, the Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC pursuant to the Code that would be a claim
against the Trust Fund or the Loan REMIC, 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 and (b) such action will not adversely affect
in any material respect the interests of any Certificateholder;
(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, 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 such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Loan REMIC, 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, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder not
consenting thereto (y) result in the downgrade, withdrawal 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
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency provided that such change shall not
result in the downgrade, withdrawal 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.
(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) modify the definition of Servicing Standard; or
(v) amend this Section 11.01.
(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 is
permitted hereunder and 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 Loan REMIC, the Lower-Tier REMIC, the
Upper-Tier REMIC or the Grantor Trust, cause the Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, or cause the
Grantor Trust to fail to qualify as a grantor trust.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement describing the amendment to each Certificateholder and
the Paying Agent a copy of such amendment to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) The Trustee 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 11.01(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 11.01(a) or (c) shall be payable out of the Certificate Account.
Section 11.02 Recordation of Agreement; Counterparts.
--------------------------------------
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee at the expense of the Depositor on direction by the
Special Servicer and with the consent of the Depositor (which may not be
unreasonably withheld), 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.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 11.03 Limitation on Rights of Certificateholders.
------------------------------------------
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust 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 Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as herein before 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 11.03(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 11.04 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 11.05 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, Chase
Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, Vice President, with a copy to Xxxxxx X.
Xxxxxxxx, Esq., telecopy number: (000) 000-0000; (ii) in the case of the
Servicer, GE Capital Loan Services, Inc., 000 Xxxxx Xxx Xxxxxxx Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention: General Counsel, telecopy number:
(000) 000-0000; (iii) in the case of the Special Servicer, Lend Lease Asset
Management, L.P., 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxxx 00000,
Attention: Xxxxxxx X'Xxxxxx, telecopy number: (000) 000-0000, with a copy to
Lend Lease Asset Management, L.P., 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx
Xxxxx 00000, Attention: General Counsel, telecopy number: (000) 000-0000; (iv)
in the case of the Trustee, Norwest Bank Minnesota, National Association, 00000
Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration CMBS, Ref. Chase Commercial Mortgage Securities Corp., Series
2000-2, telecopy number (000) 000-0000; (v) in the case of the initial Paying
Agent, the initial Certificate Registrar and the initial Authenticating Agent,
The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Capital Markets Fiduciary Services (CMBS), telecopy number:
(000) 000-0000; (vi) in the case of the Rating Agencies, (a) Xxxxx'x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attention: CMBS-Monitoring,
telecopy number: (000) 000-0000 and (b) Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx, Attention: Commercial Mortgage-Backed Securities Group, telecopy
number: (000) 000-0000; and (vi) in the case of the Mortgage Loan Sellers, (a)
The Chase Manhattan Bank, CCMB, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxx, Managing Director, telecopy number (212)
622-3553 and (b) General Electric Capital Corporation, 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx Xxxxx, Managing Director, telecopy
number: (000) 000-0000; 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 11.06 Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
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 11.07 Grant of a Security Interest.
----------------------------
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage 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 Mortgage Loans, all principal and interest
received or receivable with respect to the Mortgage 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 Account, the Excess Interest
Distribution Account, the Interest Reserve Account 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 Mortgage Loans and (ii) this
Agreement shall constitute a security agreement under applicable law. This
Section 11.07 shall constitute notice to the Trustee pursuant to any of the
requirements of the applicable UCC.
Section 11.08 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 11.09 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 11.10 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 it
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; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 3 of the Mortgage Loan Purchase Agreement.
(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 Paying Agent or the
Trustee;
(iv) any change in the lien priority of any Mortgage Loan;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(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) inspection reports and other items delivered to each of the
Servicer and Special Servicer pursuant to Sections 3.12(a) and 3.12(b);
(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.
(d) The Paying Agent shall promptly furnish to each Rating Agency a
copy of the Statement to Certificateholders distributed pursuant to Section
4.02(a) and shall promptly furnish notice the Rating Agencies of (i) any change
in the location of either of the Distribution Accounts and (ii) the final
payment to any Class of Certificateholders.
(e) The Trustee, the Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency with respect to each Mortgage
Loan such information as the Rating Agency shall request and which the Trustee,
the Servicer or Special Servicer, can reasonably provide in accordance with
applicable law and without violating the terms of this Agreement or any Mortgage
Loan documents. The Trustee, the Servicer and Special Servicer, as applicable,
may include any reasonable disclaimer it deems appropriate with respect to such
information. Notwithstanding anything to the contrary herein, nothing in this
Section 11.10 shall require a party to provide duplicative notices or copies to
the Rating Agencies with respect to any of the above listed items.
[End of Article XI]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
CHASE COMMERCIAL MORTGAGE
SECURITIES CORP.,
Depositor
By:______________________________________
Name: Xxxxx Xxxxxxxxxxxx
Title: Assistant Vice President
GE CAPITAL LOAN SERVICES, INC.,
Servicer
By:______________________________________
Name:
Title:
LEND LEASE ASSET MANAGEMENT, L.P.
Special Servicer
By: Pearl Mortgage, Inc., its
general partner
By:___________________________________
Name:
Title:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Trustee
By:______________________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of June, 2000 before me, a notary public in and for
said State, personally appeared Xxxxx Xxxxxxxxxxxx known to me to be an
Assistant Vice President of Chase Commercial 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 _______________ )
) ss.:
COUNTY OF _____________ )
On the ___ day of June, 2000, before me, a notary public in and for
said State, personally appeared ___________________ known to me to be a
___________________ of GE Capital Loan Services, Inc., a Delaware corporation
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such Delaware corporation, and acknowledged to me that
such Delaware 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 ___ day of June, 2000 before me, a notary public in and for
said State, personally appeared ____________ known to me to be ____________ of
Pearl Mortgage, Inc., a ______________ corporation, the general partner of Lend
Lease Asset Management, L.P., a limited partnership, which executed the within
instrument on behalf of such general partnership on behalf of such limited
partnership, and also known to me to be the person who executed it on behalf of
such general partnership on behalf of such limited partnership, and acknowledged
to me that such general partnership on behalf of such limited partnership
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 ___ day of June, 2000, before me, a notary public in and for
said State, personally appeared ___________________ known to me to be a
___________________ of Norwest Bank Minnesota, National 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]
EXHIBIT A-1
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-2, CLASS A-1
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 PAYING AGENT. 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: 7.5430% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $118,980,000 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $738,733,448
AGREEMENT: AS OF JUNE 10, 2000
SERVICER: GE CAPITAL LOAN SERVICES, INC.
CUT-OFF DATE: JUNE 10, 2000
SPECIAL SERVICER: LEND LEASE ASSET
CLOSING DATE: JUNE 28, 2000 MANAGEMENT, L.P.
FIRST DISTRIBUTION DATE: TRUSTEE: NORWEST BANK MINNESOTA,
JULY 17, 2000 NATIONAL ASSOCIATION
APPROXIMATE AGGREGATE PAYING AGENT: THE CHASE MANHATTAN BANK
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES CUSIP NO.: 000000XX0
AS OF THE CLOSING DATE: $118,980,000
ISIN NO.: US161505EX64
COMMON CODE NO.: 011362435
CERTIFICATE NO.: A-1
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, the Loan REMIC Interests and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 10, 2000 (the "Pooling and Servicing
Agreement"), among Chase Commercial Mortgage Securities Corp. (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), the Trustee, the Servicer and the Special
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 Certificates. The Certificates are designated as the Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2000-2 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, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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
Paying Agent 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 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 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 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
Mortgage 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 Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee and Paying Agent,
respectively, on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and the Servicer (with respect to the Certificate
Account) or the Paying Agent (with respect to the Distribution Accounts) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account and Distribution Accounts will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust 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, provided that such Certificateholder (1) has provided
the Trustee and the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date and (2) is the Holder of
Certificates with an original Certificate Balance or Notional Amount, 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(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent 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(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, 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 X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class 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
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein or therein that may be inconsistent with any
other provisions herein or therein or to correct any error; to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency;
to modify, eliminate or add to any provisions to such extent as is necessary to
maintain the qualification of the Trust Fund, the Loan REMIC, the Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor
trust at all times any Certificate is outstanding or to avoid or minimize the
imposition of any tax, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to avoid such tax; to change the timing and/or nature of deposits into the
Certificate Account or Distribution Accounts or REO Account or to change the
name in which the Certificate Account is maintained, provided, however, that the
P&I Advance Date shall not be later than the related Distribution Date, an
Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interest of any Certificateholder
and that such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Loan REMIC, the
Upper-Tier REMIC or the Lower-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; and to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates representing not less than 66 2/3% of
the aggregate Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; 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 such Certificateholder;
(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 such Class then
outstanding;
(iv) to modify the definition of Servicing Standard; or
(v) amend Section 11.01.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause the
Trust Fund, the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC or result in the imposition of a tax on the Trust Fund,
the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC.
Any of the Holders of the Controlling Class, Special Servicer,
Servicer or the Holders of the Class LR Certificates (in that order) will have
the option, upon 60 days' prior notice given to the Trustee, Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, which notice
the Paying Agent is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to purchase all, but not less than all, of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund, and
thereby effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. 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 Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, 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 Mortgage 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 under this official seal.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:___________________________________
AUTHORIZED OFFICER
Dated: June 28, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-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 __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common 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
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-2, 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 PAYING AGENT. 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: 7.6310% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: DEDUCTING PAYMENTS DUE AND PREPAYMENTS
$[400,000,000][42,457,420] RECEIVED ON OR BEFORE CUT-OFF DATE:
$738,733,448
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JUNE 10, 2000 SERVICER: GE CAPITAL LOAN SERVICES, INC.
CUT-OFF DATE: JUNE 10, 2000 SPECIAL SERVICER: LEND LEASE ASSET
MANAGEMENT, L.P.
CLOSING DATE: JUNE 28, 2000
TRUSTEE: NORWEST BANK MINNESOTA,
FIRST DISTRIBUTION DATE: NATIONAL ASSOCIATION
JULY 17, 2000
PAYING AGENT: THE CHASE MANHATTAN BANK
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CUSIP NO.: 000000XX0
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $442,457,420 ISIN NO.: US161505EY48
COMMON CODE NO.: 011362460
CERTIFICATE NO.: A-2[-1][-2]
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, the Loan REMIC Interests and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
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 10, 2000 (the "Pooling and Servicing
Agreement"), among Chase Commercial Mortgage Securities Corp. (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), the Trustee, the Servicer and the Special
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 Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2000-2 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, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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
Paying Agent 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 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 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
Mortgage 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 Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee and Paying Agent,
respectively, on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and the Servicer (with respect to the Certificate
Account) or the Paying Agent (with respect to the Distribution Accounts) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account and Distribution Accounts will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust 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, provided that such Certificateholder (1) has provided
the Trustee and the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date and (2) is the Holder of
Certificates with an original Certificate Balance or Notional Amount, 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(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent 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(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, 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 X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class 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
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein or therein that may be inconsistent with any
other provisions herein or therein or to correct any error; to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency;
to modify, eliminate or add to any provisions to such extent as is necessary to
maintain the qualification of the Trust Fund, the Loan REMIC, the Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor
trust at all times any Certificate is outstanding or to avoid or minimize the
imposition of any tax, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to avoid such tax; to change the timing and/or nature of deposits into the
Certificate Account or Distribution Accounts or REO Account or to change the
name in which the Certificate Account is maintained, provided, however, that the
P&I Advance Date shall not be later than the related Distribution Date, an
Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interest of any Certificateholder
and that such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Upper-Tier REMIC or the
Lower-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; and to make any other provisions
with respect to matters or questions arising under the Pooling and Servicing
Agreement which shall not be materially inconsistent with the provisions of the
Pooling and Servicing Agreement, provided, however, that such action shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interest of any Certificateholder not consenting thereto.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates representing not less than 66 2/3% of
the aggregate Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; 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 such Certificateholder;
(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 such Class then
outstanding;
(iv) to modify the definition of Servicing Standard; or
(v) amend Section 11.01.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause the
Trust Fund, the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC or result in the imposition of a tax on the Trust Fund,
the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC.
Any of the Holders of the Controlling Class, Special Servicer,
Servicer or the Holders of the Class LR Certificates (in that order) will have
the option, upon 60 days' prior notice given to the Trustee, Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, which notice
the Paying Agent is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to purchase all, but not less than all, of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund, and
thereby effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. 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 Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, 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 Mortgage 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 under this official seal.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:___________________________________
AUTHORIZED OFFICER
Dated: June 28, 2000
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 __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common 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
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-2, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. 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 PAYING AGENT. 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 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 SS. 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
PAYING AGENT, THE SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT 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.
THE PASS-THROUGH RATE ON THE CLASS B APPROXIMATE AGGREGATE SCHEDULED
CERTIFICATES WILL BE THE LESSER OF (i) PRINCIPAL BALANCE OF THE MORTGAGE LOANS
7.7820% PER ANNUM AND (ii) THE WEIGHTED AFTER DEDUCTING PAYMENTS DUE AND
AVERAGE NET MORTGAGE RATE FOR ANY PREPAYMENTS RECEIVED ON OR BEFORE CUT-
DISTRIBUTION DATE OFF DATE: $738,733,448
DENOMINATION: $26,779,086 SERVICER: GE CAPITAL LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: LEND LEASE ASSET
AGREEMENT: AS OF JUNE 10, 2000 MANAGEMENT, L.P.
CUT-OFF DATE: JUNE 10, 2000 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
CLOSING DATE: JUNE 28, 2000
PAYING AGENT: THE CHASE MANHATTAN BANK
FIRST DISTRIBUTION DATE:
JULY 17, 2000 CUSIP NO.: 000000XX0
APPROXIMATE AGGREGATE ISIN NO.: US161505FA52
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES COMMON CODE NO.: 011362524
AS OF THE CLOSING DATE: $26,779,086
CERTIFICATE NO.: B-1
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, the Loan REMIC Interests and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 10, 2000 (the "Pooling and Servicing
Agreement"), among Chase Commercial 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
Certificates. The Certificates are designated as the Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-2
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, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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
Paying Agent 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 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 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 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
Mortgage 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 Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee and Paying Agent,
respectively, on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and the Servicer (with respect to the Certificate
Account) or the Paying Agent (with respect to the Distribution Accounts) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account and Distribution Accounts will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust 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, provided that such Certificateholder (1) has provided
the Trustee and the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date and (2) is the Holder of
Certificates with an original Certificate Balance or Notional Amount, 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(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent 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(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, 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 X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class 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
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein or therein that may be inconsistent with any
other provisions herein or therein or to correct any error; to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency;
to modify, eliminate or add to any provisions to such extent as is necessary to
maintain the qualification of the Trust Fund, the Loan REMIC, the Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor
trust at all times any Certificate is outstanding or to avoid or minimize the
imposition of any tax, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to avoid such tax; to change the timing and/or nature of deposits into the
Certificate Account or Distribution Accounts or REO Account or to change the
name in which the Certificate Account is maintained, provided, however, that the
P&I Advance Date shall not be later than the related Distribution Date, an
Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interest of any Certificateholder
and that such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Loan REMIC, the
Upper-Tier REMIC or the Lower-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; and to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates representing not less than 66 2/3% of
the aggregate Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; 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 such Certificateholder;
(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 such Class then
outstanding;
(iv) to modify the definition of Servicing Standard; or
(v) amend Section 11.01.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause the
Trust Fund, the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC or result in the imposition of a tax on the Trust Fund,
the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC.
Any of the Holders of the Controlling Class, Special Servicer,
Servicer or the Holders of the Class LR Certificates (in that order) will have
the option, upon 60 days' prior notice given to the Trustee, Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, which notice
the Paying Agent is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to purchase all, but not less than all, of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund, and
thereby effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. 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 Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, 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 Mortgage 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 under this official seal.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:___________________________________
AUTHORIZED OFFICER
Dated: June 28, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B 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 __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common 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
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-2, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. 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 PAYING AGENT. 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 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 SS. 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
PAYING AGENT, THE SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT 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.
THE PASS-THROUGH RATE ON THE CLASS C APPROXIMATE AGGREGATE SCHEDULED
CERTIFICATES WILL BE THE LESSER OF (i) PRINCIAPAL BALANCE OF THE MORTGAGE LOANS
7.9280% PER ANNUM AND (ii) THE WEIGHTED AFTER DEDUCTING PAYMENTS DUE AND
AVERAGE NET MORTGAGE RATE FOR ANY PREPAYMENTS RECEIVED ON OR BEFORE CUT-
DISTRIBUTION DATE OFF DATE: $738,733,448
DENOMINATION: $34,166,423 SERVICER: GE CAPITAL LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: LEND LEASE ASSET
AGREEMENT: AS OF JUNE 10, 2000 MANAGEMENT, L.P.
CUT-OFF DATE: JUNE 10, 2000 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
CLOSING DATE: JUNE 28, 2000
PAYING AGENT: THE CHASE MANHATTAN BANK
FIRST DISTRIBUTION DATE:
JULY 17, 2000 CUSIP NO.: 000000XX0
APPROXIMATE AGGREGATE ISIN NO.: US161505FB36
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES COMMON CODE NO.: 011362575
AS OF THE CLOSING DATE: $34,166,423
CERTIFICATE NO.: C-1
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, the Loan REMIC Interests and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 10, 2000 (the "Pooling and Servicing
Agreement"), among Chase Commercial 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 C
Certificates. The Certificates are designated as the Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-2
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, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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
Paying Agent 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 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 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 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
Mortgage 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 Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee and Paying Agent,
respectively, on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and the Servicer (with respect to the Certificate
Account) or the Paying Agent (with respect to the Distribution Accounts) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account and Distribution Accounts will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust 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, provided that such Certificateholder (1) has provided
the Trustee and the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date and (2) is the Holder of
Certificates with an original Certificate Balance or Notional Amount, 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(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent 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(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, 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 X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class 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
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein or therein that may be inconsistent with any
other provisions herein or therein or to correct any error; to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency;
to modify, eliminate or add to any provisions to such extent as is necessary to
maintain the qualification of the Trust Fund, the Loan REMIC, the Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor
trust at all times any Certificate is outstanding or to avoid or minimize the
imposition of any tax, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to avoid such tax; to change the timing and/or nature of deposits into the
Certificate Account or Distribution Accounts or REO Account or to change the
name in which the Certificate Account is maintained, provided, however, that the
P&I Advance Date shall not be later than the related Distribution Date, an
Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interest of any Certificateholder
and that such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Loan REMIC, the
Upper-Tier REMIC or the Lower-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; and to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates representing not less than 66 2/3% of
the aggregate Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; 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 such Certificateholder;
(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 such Class then
outstanding;
(iv) to modify the definition of Servicing Standard, or
(v) amend Section 11.01.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause the
Trust Fund, the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC or result in the imposition of a tax on the Trust Fund,
the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC.
Any of the Holders of the Controlling Class, Special Servicer,
Servicer or the Holders of the Class LR Certificates (in that order) will have
the option, upon 60 days' prior notice given to the Trustee, Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, which notice
the Paying Agent is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to purchase all, but not less than all, of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund, and
thereby effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. 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 Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, 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 Mortgage 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 under this official seal.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:___________________________________
AUTHORIZED OFFICER
Dated: June 28, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS 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 __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common 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
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-2, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. 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 PAYING AGENT. 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 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 SS. 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
PAYING AGENT, THE SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT 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.
THE PASS-THROUGH RATE ON THE CLASS D APPROXIMATE AGGREGATE SCHEDULED
CERTIFICATES WILL BE THE LESSER OF (i) BALANCE OF THE MORTGAGE LOANS AFTER
8.0240% PER ANNUM AND (ii) THE WEIGHTED DEDUCTING PAYMENTS DUE AND PREPAYMENTS
AVERAGE NET MORTGAGE RATE FOR ANY RECEIVED ON OR BEFORE CUT-OFF DATE:
DISTRIBUTION DATE $738,733,448
DENOMINATION: $12,004,419 SERVICER: GE CAPITAL LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: LEND LEASE ASSET
AGREEMENT: AS OF JUNE 10, 2000 MANAGEMENT, L.P.
CUT-OFF DATE: JUNE 10, 2000 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
CLOSING DATE: JUNE 28, 2000
PAYING AGENT: THE CHASE MANHATTAN BANK
FIRST DISTRIBUTION DATE:
JULY 17, 2000 CUSIP NO.: 000000XX0
APPROXIMATE AGGREGATE ISIN NO.: US161505FC19
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES COMMON CODE NO.: 011362729
AS OF THE CLOSING DATE: $12,004,419
CERTIFICATE NO.: D-1
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, the Loan REMIC Interests and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 10, 2000 (the "Pooling and Servicing
Agreement"), among Chase Commercial 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 D
Certificates. The Certificates are designated as the Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-2
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, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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
Paying Agent 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 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 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 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
Mortgage 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 Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee and Paying Agent,
respectively, on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and the Servicer (with respect to the Certificate
Account) or the Paying Agent (with respect to the Distribution Accounts) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account and Distribution Accounts will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust 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, provided that such Certificateholder (1) has provided
the Trustee and the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date and (2) is the Holder of
Certificates with an original Certificate Balance or Notional Amount, 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(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent 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(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, 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 X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class 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
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein or therein that may be inconsistent with any
other provisions herein or therein or to correct any error; to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency;
to modify, eliminate or add to any provisions to such extent as is necessary to
maintain the qualification of the Trust Fund, the Loan REMIC, the Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor
trust at all times any Certificate is outstanding or to avoid or minimize the
imposition of any tax, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to avoid such tax; to change the timing and/or nature of deposits into the
Certificate Account or Distribution Accounts or REO Account or to change the
name in which the Certificate Account is maintained, provided, however, that the
P&I Advance Date shall not be later than the related Distribution Date, an
Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interest of any Certificateholder
and that such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Loan REMIC, the
Upper-Tier REMIC or the Lower-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; and to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates representing not less than 66 2/3% of
the aggregate Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; 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 such Certificateholder;
(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 such Class then
outstanding;
(iv) to modify the definition of Servicing Standard; or
(v) amend Section 11.01.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause the
Trust Fund, the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC or result in the imposition of a tax on the Trust Fund,
the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC.
Any of the Holders of the Controlling Class, Special Servicer,
Servicer or the Holders of the Class LR Certificates (in that order) will have
the option, upon 60 days' prior notice given to the Trustee, Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, which notice
the Paying Agent is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to purchase all, but not less than all, of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund, and
thereby effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. 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 Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, 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 Mortgage 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 under this official seal.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:___________________________________
AUTHORIZED OFFICER
Dated: June 28, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS 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 __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common 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
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-2, CLASS E
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. 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 PAYING AGENT. 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 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 SS. 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
PAYING AGENT, THE SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT 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.
THE PASS-THROUGH RATE ON THE CLASS E APPROXIMATE AGGREGATE SCHEDULED
CERTIFICATES WITH RESPECT TO ANY PRINCIPAL BALANCE OF THE MORTGAGE LOANS
DISTRIBUTION DATE WILL BE A PER ANNUM AFTER DEDUCTING PAYMENTS DUE AND
RATE EQUAL TO THE WEIGHTED AVERAGE NET PREPAYMENTS RECEIVED ON OR BEFORE CUT-
MORTGAGE RATE LESS 0.15% OFF DATE: $738,733,448
DENOMINATION: $23,085,420 SERVICER: GE CAPITAL LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: LEND LEASE ASSET
AGREEMENT: AS OF JUNE 10, 2000 MANAGEMENT, L.P.
CUT-OFF DATE: JUNE 10, 2000 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
CLOSING DATE: JUNE 28, 2000
PAYING AGENT: THE CHASE MANHATTAN BANK
FIRST DISTRIBUTION DATE:
JULY 17, 2000 CUSIP NO.: 000000XX0
APPROXIMATE AGGREGATE ISIN NO.: US161505FD91
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES COMMON CODE NO.: 011362788
AS OF THE CLOSING DATE: $23,085,420
CERTIFICATE NO.: E-1
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, the Loan REMIC Interests and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 10, 2000 (the "Pooling and Servicing
Agreement"), among Chase Commercial 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
Certificates. The Certificates are designated as the Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-2
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, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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
Paying Agent 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 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 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 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
Mortgage 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 Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee and Paying Agent,
respectively, on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and the Servicer (with respect to the Certificate
Account) or the Paying Agent (with respect to the Distribution Accounts) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Investments. Interest or other income earned on funds in the
Certificate Account and Distribution Accounts will be paid to the Servicer as
set forth in the Pooling and Servicing Agreement. As provided in the Pooling and
Servicing Agreement, withdrawals from the Certificate Account shall be made from
time to time for purposes other than distributions to Certificateholders, such
purposes including reimbursement of certain expenses incurred with respect to
the servicing of the Mortgage Loans and administration of the Trust 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, provided that such Certificateholder (1) has provided
the Trustee and the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date and (2) is the Holder of
Certificates with an original Certificate Balance or Notional Amount, 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(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent 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(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, 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 X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class 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
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein or therein that may be inconsistent with any
other provisions herein or therein or to correct any error; to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency;
to modify, eliminate or add to any provisions to such extent as is necessary to
maintain the qualification of the Trust Fund, the Loan REMIC, the Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor
trust at all times any Certificate is outstanding or to avoid or minimize the
imposition of any tax, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to avoid such tax; to change the timing and/or nature of deposits into the
Certificate Account or Distribution Accounts or REO Account or to change the
name in which the Certificate Account is maintained, provided, however, that the
P&I Advance Date shall not be later than the related Distribution Date, an
Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interest of any Certificateholder
and that such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Loan REMIC, the
Upper-Tier REMIC or the Lower-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; and to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates representing not less than 66 2/3% of
the aggregate Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; 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 such Certificateholder;
(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 such Class then
outstanding;
(iv) to modify the definition of Servicing Standard; or
(v) amend Section 11.01.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause the
Trust Fund, the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC or result in the imposition of a tax on the Trust Fund,
the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC.
Any of the Holders of the Controlling Class, Special Servicer,
Servicer or the Holders of the Class LR Certificates (in that order) will have
the option, upon 60 days' prior notice given to the Trustee, Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, which notice
the Paying Agent is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to purchase all, but not less than all, of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund, and
thereby effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. 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 Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, 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 Mortgage 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 under this official seal.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:___________________________________
AUTHORIZED OFFICER
Dated: June 28, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E 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 __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common 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
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-2, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL OR CLASS S CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER
THE SECURITIES ACT, OR (D) (OTHER THAN WITH RESPECT TO A RESIDUAL OR CLASS S
CERTIFICATE) 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.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. 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 PAYING AGENT. 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 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 SS. 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
PAYING AGENT, THE SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT 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.
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 OR (OTHER THAN WITH RESPECT TO A RESIDUAL OR CLASS S CERTIFICATE) AN
INSTITUTIONAL ACCREDITED INVESTOR, 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.
THE PASS-THROUGH RATE ON THE CLASS F APPROXIMATE AGGREGATE SCHEDULED
CERTIFICATES WITH RESPECT TO ANY PRINCIPAL BALANCE OF THE MORTGAGE LOANS
DISTRIBUTION DATE WILL BE A PER ANNUM AFTER DEDUCTING PAYMENTS DUE AND
RATE EQUAL TO THE WEIGHTED AVERAGE NET PREPAYMENTS RECEIVED ON OR BEFORE CUT-
MORTGAGE RATE LESS 0.15% OFF DATE: $738,733,448
DENOMINATION: $12,927,835 SERVICER: GE CAPITAL LOAN SERVICES, INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICER: LEND LEASE ASSET
AGREEMENT: AS OF JUNE 10, 2000 MANAGEMENT, L.P.
CUT-OFF DATE: JUNE 10, 2000 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
CLOSING DATE: JUNE 28, 2000
PAYING AGENT: THE CHASE MANHATTAN BANK
FIRST DISTRIBUTION DATE:
JULY 17, 2000 CUSIP NO.: 000000XX0
APPROXIMATE AGGREGATE ISIN NO.: US161505FE74
CERTIFICATE BALANCE
OF THE CLASS F CERTIFICATES CERTIFICATE NO.: F-1
AS OF THE CLOSING DATE: $12,927,835
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, the Loan REMIC Interests and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 10, 2000 (the "Pooling and Servicing
Agreement"), among Chase Commercial 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 F
Certificates. The Certificates are designated as the Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-2
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, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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
Paying Agent 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 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 F 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 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
Mortgage 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 Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee and Paying Agent,
respectively, on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and the Servicer (with respect to the Certificate
Account) or the Paying Agent (with respect to the Distribution Accounts) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account and Distribution Accounts will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust 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, provided that such Certificateholder (1) has provided
the Trustee and the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date and (2) is the Holder of
Certificates with an original Certificate Balance or Notional Amount, 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(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent 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(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, 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 X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class 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
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein or therein that may be inconsistent with any
other provisions herein or therein or to correct any error; to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency;
to modify, eliminate or add to any provisions to such extent as is necessary to
maintain the qualification of the Trust Fund, the Loan REMIC, the Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor
trust at all times any Certificate is outstanding or to avoid or minimize the
imposition of any tax, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to avoid such tax; to change the timing and/or nature of deposits into the
Certificate Account or Distribution Accounts or REO Account or to change the
name in which the Certificate Account is maintained, provided, however, that the
P&I Advance Date shall not be later than the related Distribution Date, an
Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interest of any Certificateholder
and that such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Loan REMIC, the
Upper-Tier REMIC or the Lower-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; and to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates representing not less than 66 2/3% of
the aggregate Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; 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 such Certificateholder;
(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 such Class then
outstanding;
(iv) to modify the definition of Servicing Standard; or
(v) amend Section 11.01.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause the
Trust Fund, the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC or result in the imposition of a tax on the Trust Fund,
the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC.
Any of the Holders of the Controlling Class, Special Servicer,
Servicer or the Holders of the Class LR Certificates (in that order) will have
the option, upon 60 days' prior notice given to the Trustee, Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, which notice
the Paying Agent is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to purchase all, but not less than all, of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund, and
thereby effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. 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 Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, 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 Mortgage 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 under this official seal.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:___________________________________
AUTHORIZED OFFICER
Dated: June 28, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK,
AUTHENTICATING AGENT
By:___________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
------------ --------------------------- -------------------- --------
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common 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-8
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-2, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL OR CLASS S CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER
THE SECURITIES ACT, OR (D) (OTHER THAN WITH RESPECT TO A RESIDUAL OR CLASS S
CERTIFICATE) 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.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. 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 PAYING AGENT. 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 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 SS. 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
PAYING AGENT, THE SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT 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.
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 OR (OTHER THAN WITH RESPECT TO A RESIDUAL OR CLASS S CERTIFICATE) AN
INSTITUTIONAL ACCREDITED INVESTOR, 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.
PASS-THROUGH RATE: 6.6500% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $12,927,835 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $738,733,448
AGREEMENT: AS OF JUNE 10, 2000
SERVICER: GE CAPITAL LOAN SERVICES, INC.
CUT-OFF DATE: JUNE 10, 2000
SPECIAL SERVICER: LEND LEASE ASSET
CLOSING DATE: JUNE 28, 2000 MANAGEMENT, L.P.
FIRST DISTRIBUTION DATE: TRUSTEE: NORWEST BANK MINNESOTA,
JULY 17, 2000 NATIONAL ASSOCIATION
APPROXIMATE AGGREGATE PAYING AGENT: THE CHASE MANHATTAN BANK
CERTIFICATE BALANCE
OF THE CLASS G CERTIFICATES CUSIP NO.: 000000XX0
AS OF THE CLOSING DATE: $12,927,835
ISIN NO.: US161505FF40
CERTIFICATE NO.: G-1
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, the Loan REMIC Interests and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 10, 2000 (the "Pooling and Servicing
Agreement"), among Chase Commercial 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 G
Certificates. The Certificates are designated as the Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-2
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, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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
Paying Agent 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 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 G 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 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
Mortgage 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 Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee and Paying Agent,
respectively, on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and the Servicer (with respect to the Certificate
Account) or the Paying Agent (with respect to the Distribution Accounts) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account and Distribution Accounts will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust 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, provided that such Certificateholder (1) has provided
the Trustee and the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date and (2) is the Holder of
Certificates with an original Certificate Balance or Notional Amount, 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(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent 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(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, 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 X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class 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
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein or therein that may be inconsistent with any
other provisions herein or therein or to correct any error; to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency;
to modify, eliminate or add to any provisions to such extent as is necessary to
maintain the qualification of the Trust Fund, the Loan REMIC, the Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor
trust at all times any Certificate is outstanding or to avoid or minimize the
imposition of any tax, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to avoid such tax; to change the timing and/or nature of deposits into the
Certificate Account or Distribution Accounts or REO Account or to change the
name in which the Certificate Account is maintained, provided, however, that the
P&I Advance Date shall not be later than the related Distribution Date, an
Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interest of any Certificateholder
and that such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Loan REMIC, the
Upper-Tier REMIC or the Lower-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; and to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates representing not less than 66 2/3% of
the aggregate Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; 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 such Certificateholder;
(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 such Class then
outstanding;
(iv) to modify the definition of Servicing Standard; or
(v) amend Section 11.01.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause the
Trust Fund, the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC or result in the imposition of a tax on the Trust Fund,
the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC.
Any of the Holders of the Controlling Class, Special Servicer,
Servicer or the Holders of the Class LR Certificates (in that order) will have
the option, upon 60 days' prior notice given to the Trustee, Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, which notice
the Paying Agent is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to purchase all, but not less than all, of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund, and
thereby effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. 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 Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, 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 Mortgage 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 under this official seal.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:___________________________________
AUTHORIZED OFFICER
Dated: June 28, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK,
AUTHENTICATING AGENT
By:___________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
------------ --------------------------- -------------------- --------
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____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common 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-9
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-2, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL OR CLASS S CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER
THE SECURITIES ACT, OR (D) (OTHER THAN WITH RESPECT TO A RESIDUAL OR CLASS S
CERTIFICATE) 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.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. 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 PAYING AGENT. 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 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 SS. 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
PAYING AGENT, THE SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT 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.
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 OR (OTHER THAN WITH RESPECT TO A RESIDUAL OR CLASS S CERTIFICATE) AN
INSTITUTIONAL ACCREDITED INVESTOR, 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.
PASS-THROUGH RATE: 6.6500% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $18,468,337 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $738,733,448
AGREEMENT: AS OF JUNE 10, 2000
SERVICER: GE CAPITAL LOAN SERVICES, INC.
CUT-OFF DATE: JUNE 10, 2000
SPECIAL SERVICER: LEND LEASE ASSET
CLOSING DATE: JUNE 28, 2000 MANAGEMENT, L.P.
FIRST DISTRIBUTION DATE: TRUSTEE: NORWEST BANK MINNESOTA,
JULY 17, 2000 NATIONAL ASSOCIATION
APPROXIMATE AGGREGATE PAYING AGENT: THE CHASE MANHATTAN BANK
CERTIFICATE BALANCE
OF THE CLASS H CERTIFICATES CUSIP NO.: 000000XX0
AS OF THE CLOSING DATE: $18,468,337
ISIN NO.: US161505FG23
CERTIFICATE NO.: H-1
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, the Loan REMIC Interests and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 10, 2000 (the "Pooling and Servicing
Agreement"), among Chase Commercial 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 H
Certificates. The Certificates are designated as the Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-2
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, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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
Paying Agent 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 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 H 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 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
Mortgage 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 Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee and Paying Agent,
respectively, on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and the Servicer (with respect to the Certificate
Account) or the Paying Agent (with respect to the Distribution Accounts) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account and Distribution Accounts will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust 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, provided that such Certificateholder (1) has provided
the Trustee and the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date and (2) is the Holder of
Certificates with an original Certificate Balance or Notional Amount, 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(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent 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(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, 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 X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class 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
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein or therein that may be inconsistent with any
other provisions herein or therein or to correct any error; to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency;
to modify, eliminate or add to any provisions to such extent as is necessary to
maintain the qualification of the Trust Fund, the Loan REMIC, the Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor
trust at all times any Certificate is outstanding or to avoid or minimize the
imposition of any tax, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to avoid such tax; to change the timing and/or nature of deposits into the
Certificate Account or Distribution Accounts or REO Account or to change the
name in which the Certificate Account is maintained, provided, however, that the
P&I Advance Date shall not be later than the related Distribution Date, an
Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interest of any Certificateholder
and that such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Loan REMIC, the
Upper-Tier REMIC or the Lower-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; and to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates representing not less than 66 2/3% of
the aggregate Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; 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 such Certificateholder;
(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 such Class then
outstanding;
(iv) to modify the definition of Servicing Standard; or
(v) amend Section 11.01.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause the
Trust Fund, the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC or result in the imposition of a tax on the Trust Fund,
the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC.
Any of the Holders of the Controlling Class, Special Servicer,
Servicer or the Holders of the Class LR Certificates (in that order) will have
the option, upon 60 days' prior notice given to the Trustee, Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, which notice
the Paying Agent is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to purchase all, but not less than all, of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund, and
thereby effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. 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 Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, 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 Mortgage 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 under this official seal.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:___________________________________
AUTHORIZED OFFICER
Dated: June 28, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK,
AUTHENTICATING AGENT
By:___________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common 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 _________________________________________________________________
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(Please insert Social Security or other identifying number of Assignee)
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(Please print or typewrite name and address of assignee)
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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.
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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.
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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-10
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-2, CLASS I
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL OR CLASS S CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER
THE SECURITIES ACT, OR (D) (OTHER THAN WITH RESPECT TO A RESIDUAL OR CLASS S
CERTIFICATE) 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.
THIS CLASS I CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. 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 PAYING AGENT. 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 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 SS. 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
PAYING AGENT, THE SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT 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.
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 OR (OTHER THAN WITH RESPECT TO A RESIDUAL OR CLASS S CERTIFICATE) AN
INSTITUTIONAL ACCREDITED INVESTOR, 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.
PASS-THROUGH RATE: 6.6500% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $5,540,501 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $738,733,448
AGREEMENT: AS OF JUNE 10, 2000
SERVICER: GE CAPITAL LOAN SERVICES, INC.
CUT-OFF DATE: JUNE 10, 2000
SPECIAL SERVICER: LEND LEASE ASSET
CLOSING DATE: JUNE 28, 2000 MANAGEMENT, L.P.
FIRST DISTRIBUTION DATE: TRUSTEE: NORWEST BANK MINNESOTA,
JULY 17, 2000 NATIONAL ASSOCIATION
APPROXIMATE AGGREGATE PAYING AGENT: THE CHASE MANHATTAN BANK
CERTIFICATE BALANCE
OF THE CLASS I CERTIFICATES CUSIP NO.: 000000XX0
AS OF THE CLOSING DATE: $5,540,501
ISIN NO.: US161505FH06
CERTIFICATE NO.: I-1
CLASS I CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, the Loan REMIC Interests and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class I Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 10, 2000 (the "Pooling and Servicing
Agreement"), among Chase Commercial 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 I
Certificates. The Certificates are designated as the Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-2
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, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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
Paying Agent 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 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 I 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 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
Mortgage 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 Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee and Paying Agent,
respectively, on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and the Servicer (with respect to the Certificate
Account) or the Paying Agent (with respect to the Distribution Accounts) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account and Distribution Accounts will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust 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, provided that such Certificateholder (1) has provided
the Trustee and the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date and (2) is the Holder of
Certificates with an original Certificate Balance or Notional Amount, 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(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent 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(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, 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 X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in Denominations of
$10,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. Subject
to the terms of the Pooling and Servicing Agreement, the Non-Registered
Certificates (other than the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of $250,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class 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
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein or therein that may be inconsistent with any
other provisions herein or therein or to correct any error; to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency;
to modify, eliminate or add to any provisions to such extent as is necessary to
maintain the qualification of the Trust Fund, the Loan REMIC, the Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor
trust at all times any Certificate is outstanding or to avoid or minimize the
imposition of any tax, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to avoid such tax; to change the timing and/or nature of deposits into the
Certificate Account or Distribution Accounts or REO Account or to change the
name in which the Certificate Account is maintained, provided, however, that the
P&I Advance Date shall not be later than the related Distribution Date, an
Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interest of any Certificateholder
and that such action will not result in the withdrawal, downgrade or
qualification of the then-current rating by any Rating Agency, as evidenced by a
letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(d) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Loan REMIC, the
Upper-Tier REMIC or the Lower-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; and to make any
other provisions with respect to matters or questions arising under the Pooling
and Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates representing not less than 66 2/3% of
the aggregate Percentage Interests of each Class of Certificates affected by the
amendment for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Pooling and Servicing Agreement or
of modifying in any manner the rights of the Certificateholders; 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 such Certificateholder;
(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 such Class then
outstanding;
(iv) to modify the definition of Servicing Standard; or
(iv) amend Section 11.01.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause the
Trust Fund, the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC or result in the imposition of a tax on the Trust Fund,
the Loan REMIC, the Upper-Tier REMIC or the Lower-Tier REMIC.
Any of the Holders of the Controlling Class, Special Servicer,
Servicer or the Holders of the Class LR Certificates (in that order) will have
the option, upon 60 days' prior notice given to the Trustee, Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, which notice
the Paying Agent is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to purchase all, but not less than all, of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust Fund, and
thereby effect termination of the Trust Fund and early retirement of the then
outstanding Certificates, on any Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. 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 Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, 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 Mortgage 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 under this official seal.
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Certificate Registrar under the
Pooling and Servicing Agreement.
By:___________________________________
AUTHORIZED OFFICER
Dated: June 28, 2000
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
THE CHASE MANHATTAN BANK,
AUTHENTICATING AGENT
By:___________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
------------ --------------------------- -------------------- --------
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
____________ ___________________________ ____________________ ________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common 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-11
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-2, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL OR CLASS S CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER
THE SECURITIES ACT, OR (D) (OTHER THAN WITH RESPECT TO A RESIDUAL OR CLASS S
CERTIFICATE) 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.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. 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 PAYING AGENT. 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 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 SS. 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
PAYING AGENT, THE SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT 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.
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 OR (OTHER THAN WITH RESPECT TO A RESIDUAL OR CLASS S CERTIFICATE) AN
INSTITUTIONAL ACCREDITED INVESTOR, 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.
PASS-THROUGH RATE: 6.6500% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $7,387,334 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $738,733,448
AGREEMENT: AS OF JUNE 10, 2000
SERVICER: GE CAPITAL LOAN SERVICES, INC.
CUT-OFF DATE: JUNE 10, 2000
SPECIAL SERVICER: LEND LEASE ASSET
CLOSING DATE: JUNE 28, 2000 MANAGEMENT, L.P.
FIRST DISTRIBUTION DATE: TRUSTEE: NORWEST BANK MINNESOTA,
JULY 17, 2000 NATIONAL ASSOCIATION
APPROXIMATE AGGREGATE PAYING AGENT: THE CHASE MANHATTAN BANK
CERTIFICATE BALANCE
OF THE CLASS J CERTIFICATES CUSIP NO.: 000000XX0
AS OF THE CLOSING DATE: $7,387,334
ISIN NO.: US161505FJ61
CERTIFICATE NO.: J-1
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, the Loan REMIC Interests and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Accounts, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 10, 2000 (the "Pooling and Servicing
Agreement"), among Chase Commercial 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 J
Certificates. The Certificates are designated as the Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2000-2
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, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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
Paying Agent 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 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 J 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 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
Mortgage 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 Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held in the name of the Trustee and Paying Agent,
respectively, on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and the Servicer (with respect to the Certificate
Account) or the Paying Agent (with respect to the Distribution Accounts) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account and Distribution Accounts will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust 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, provided that such Certificateholder (1) has provided
the Trustee and the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date and (2) is the Holder of
Certificates with an original Certificate Balance or Notional Amount, 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 bene