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BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.,
as Depositor,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Servicer,
and
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Special Servicer,
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
and
ABN AMRO BANK N.V.,
as Fiscal Agent,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Paying Agent
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2000
----------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-WF1
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...................................................4
Section 1.1 Definitions.......................................4
Section 1.2 Calculations Respecting Mortgage Loans...........53
Section 1.3 Calculations Respecting Accrued Interest.........54
Section 1.4 Interpretation...................................54
Section 1.5 ARD Loans........................................54
ARTICLE II DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES..............55
Section 2.1 Conveyance of Mortgage Loans.....................55
Section 2.2 Acceptance by Trustee............................57
Section 2.3 Sellers' Repurchase of Mortgage Loans for
Document Defects and Breaches of
Representations and Warranties...................59
Section 2.4 Representations and Warranties...................62
Section 2.5 Conveyance of Interests..........................63
ARTICLE III THE CERTIFICATES.............................................63
Section 3.1 The Certificates.................................63
Section 3.2 Registration.....................................64
Section 3.3 Transfer and Exchange of Certificates............65
Section 3.4 Mutilated, Destroyed, Lost or Stolen
Certificates.....................................70
Section 3.5 Persons Deemed Owners............................70
Section 3.6 Access to List of Certificateholders' Names
and Addresses....................................71
Section 3.7 Book-Entry Certificates..........................71
Section 3.8 Notices to Clearing Agency.......................74
Section 3.9 Definitive Certificates..........................74
ARTICLE IV ADVANCES.....................................................75
Section 4.1 P&I Advances by Servicer.........................75
Section 4.2 Servicing Advances...............................76
Section 4.3 Advances by the Trustee and the Fiscal Agent.....76
Section 4.4 Evidence of Nonrecoverability....................77
Section 4.5 Interest on Advances; Calculation of
Outstanding Advances with Respect to a
Mortgage Loan....................................78
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(CONTINUED)
PAGE
Section 4.6 Reimbursement of Advances and Advance
Interest.........................................78
Section 4.7 Fiscal Agent Termination Event...................79
Section 4.8 Procedure Upon Termination Event.................80
Section 4.9 Merger or Consolidation of Fiscal Agent..........80
Section 4.10 Limitation on Liability of the Fiscal Agent
and Others.......................................81
Section 4.11 Indemnification of Fiscal Agent..................81
ARTICLE V ADMINISTRATION OF THE TRUST..................................82
Section 5.1 Collections......................................82
Section 5.2 Application of Funds in the Certificate
Account and Interest Reserve Sub-account.........84
Section 5.3 Distribution Account and Reserve Account.........87
Section 5.4 Paying Agent Reports.............................88
Section 5.5 Paying Agent Tax Reports.........................90
ARTICLE VI DISTRIBUTIONS................................................90
Section 6.1 Distributions Generally..........................90
Section 6.2 REMIC I..........................................91
Section 6.3 REMIC II.........................................91
Section 6.4 REMIC III........................................96
Section 6.5 Allocation of Realized Losses and Shortfalls
Due to Nonrecoverability........................101
Section 6.6 Net Aggregate Prepayment Interest Shortfalls
and Net Aggregate Balloon Interest Shortfalls...104
Section 6.7 Adjustment of Servicing Fees....................104
Section 6.8 Appraisal Reductions............................104
Section 6.9 Compliance with Withholding Requirements........105
Section 6.10 Yield Maintenance Charges.......................105
ARTICLE VII CONCERNING THE TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT.......................................................106
Section 7.1 Duties of Trustee, the Fiscal Agent and the
Paying Agent....................................106
Section 7.2 Certain Matters Affecting the Trustee, the
Fiscal Agent and the Paying Agent...............108
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 7.3 The Trustee, the Fiscal Agent and the Paying
Agent Not Liable for Certificates or
Interests or Mortgage Loans.....................110
Section 7.4 The Trustee, the Fiscal Agent and Paying
Agent May Own Certificates......................111
Section 7.5 Eligibility Requirements for the Trustee,
the Fiscal Agent and the Paying Agent...........111
Section 7.6 Resignation and Removal of the Trustee, the
Fiscal Agent or the Paying Agent................112
Section 7.7 Successor Trustee, Fiscal Agent or Paying
Agent...........................................114
Section 7.8 Merger or Consolidation of Trustee, Fiscal
Agent or Paying Agent...........................114
Section 7.9 Appointment of Co-Trustee, Separate Trustee,
Agents or Custodian.............................115
Section 7.10 Authenticating Agents...........................117
Section 7.11 Indemnification of Trustee, the Fiscal Agent
and the Paying Agent............................118
Section 7.12 Fees and Expenses of Trustee, the Fiscal
Agent and Paying Agent..........................120
Section 7.13 Collection of Moneys............................120
Section 7.14 Trustee To Act; Appointment of Successor........120
Section 7.15 Notification to Holders.........................123
Section 7.16 Representations and Warranties of the
Trustee, the Fiscal Agent and the Paying
Agent...........................................123
Section 7.17 Fidelity Bond and Errors and Omissions
Insurance Policy Maintained by the Trustee,
the Fiscal Agent and the Paying Agent...........125
ARTICLE VIII ADMINISTRATION AND SERVICING OF MORTGAGE LOANS..............126
Section 8.1 Servicing Standard; Servicing Duties............126
Section 8.2 Fidelity Bond and Errors and Omissions
Insurance Policy Maintained by the Servicer.....127
Section 8.3 Servicer's General Power and Duties.............127
Section 8.4 Sub-Servicing...................................132
Section 8.5 Servicer May Own Certificates...................132
Section 8.6 Maintenance of Hazard Insurance, Other
Insurance, Taxes and Other......................133
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TABLE OF CONTENTS
(CONTINUED)
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Section 8.7 Enforcement of Due-On-Sale Clauses and
Due-on-Encumbrance Clauses; Assumption
Agreements......................................135
Section 8.8 Trustee to Cooperate; Release of Trustee
Mortgage Files..................................137
Section 8.9 Documents, Records and Funds in Possession
of Servicer to be Held for the Trustee for
the Benefit of the Certificateholders...........138
Section 8.10 Servicing Compensation..........................138
Section 8.11 Servicer Reports; Account Statements............139
Section 8.12 Annual Statement as to Compliance...............140
Section 8.13 Annual Independent Public Accountants'
Servicing Report................................141
Section 8.14 Operating Statement Analysis Reports
Regarding the Mortgaged Properties..............141
Section 8.15 Other Available Information and Certain
Rights of the Servicer..........................141
Section 8.16 Rule 144A Information...........................144
Section 8.17 Inspections.....................................144
Section 8.18 Modifications, Waivers, Amendments,
Extensions and Consents.........................144
Section 8.19 Specially Serviced Mortgage Loans...............146
Section 8.20 Representations, Warranties and Covenants of
the Servicer....................................146
Section 8.21 Merger or Consolidation.........................148
Section 8.22 Resignation of Servicer.........................148
Section 8.23 Assignment or Delegation of Duties by
Servicer........................................148
Section 8.24 Limitation on Liability of the Servicer and
Others..........................................149
Section 8.25 Indemnification; Third-Party Claims.............151
Section 8.26 Exchange Act Reporting..........................153
Section 8.27 Compliance with REMIC Provisions................153
Section 8.28 Termination.....................................154
Section 8.29 Procedure Upon Termination......................155
ARTICLE IX ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED
MORTGAGE LOANS BY SPECIAL SERVICER..........................157
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 9.1 Duties of Special Servicer......................157
Section 9.2 Fidelity Bond and Errors and Omissions
Insurance Policy of Special Servicer............158
Section 9.3 Sub-Servicers...................................159
Section 9.4 Special Servicer General Powers and Duties......159
Section 9.5 "Due-on-Sale" Clauses; Assignment and
Assumption Agreements; Modifications of
Specially Serviced Mortgage Loans...............160
Section 9.6 Release of Mortgage Files.......................164
Section 9.7 Documents, Records and Funds in Possession
of Special Servicer To Be Held for the
Trustee.........................................165
Section 9.8 Representations, Warranties and Covenants of
the Special Servicer............................166
Section 9.9 Standard Hazard, Flood and Comprehensive
General Liability Insurance Policies............167
Section 9.10 Presentment of Claims and Collection of
Proceeds........................................169
Section 9.11 Compensation to the Special Servicer............169
Section 9.12 Realization Upon Defaulted Mortgage Loans.......170
Section 9.13 Foreclosure.....................................172
Section 9.14 Operation of REO Property.......................172
Section 9.15 Sale of REO Property............................175
Section 9.16 Realization on Collateral Security..............176
Section 9.17 Sale of Defaulted Mortgage Loans................176
Section 9.18 Annual Officer's Certificate as to Compliance...176
Section 9.19 Annual Independent Accountants' Servicing
Report..........................................177
Section 9.20 Merger or Consolidation.........................177
Section 9.21 Resignation of Special Servicer.................177
Section 9.22 Assignment or Delegation of Duties by
Special Servicer................................178
Section 9.23 Limitation on Liability of the Special
Servicer and Others.............................178
Section 9.24 Indemnification; Third-Party Claims.............180
Section 9.25 [RESERVED]......................................181
Section 9.26 Special Servicer May Own Certificates...........181
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 9.27 Tax Reporting...................................182
Section 9.28 Application of Funds Received...................182
Section 9.29 Compliance with REMIC Provisions................182
Section 9.30 Termination.....................................182
Section 9.31 Procedure Upon Termination......................184
Section 9.32 Certain Special Servicer Reports................185
Section 9.33 Special Servicer to Cooperate with the
Servicer and Paying Agent.......................186
Section 9.34 Certain REMIC Limitations on Modification of
Specially Serviced Mortgage Loans...............187
Section 9.35 [RESERVED]......................................187
Section 9.36 Sale of Defaulted Mortgage Loans and REO
Properties......................................187
Section 9.37 Operating Adviser; Elections....................189
Section 9.38 Limitation on Liability of Operating Adviser....190
Section 9.39 Duties of Operating Adviser.....................191
ARTICLE X PURCHASE AND TERMINATION OF THE TRUST.......................192
Section 10.1 Termination of Trust Upon Repurchase or
Liquidation of All Mortgage Loans...............192
Section 10.2 Procedure Upon Termination of Trust.............193
Section 10.3 Additional Trust Termination Requirements.......194
ARTICLE XI RIGHTS OF CERTIFICATEHOLDERS................................195
Section 11.1 Limitation on Rights of Holders.................195
Section 11.2 Access to List of Holders.......................196
Section 11.3 Acts of Holders of Certificates.................196
ARTICLE XII REMIC ADMINISTRATION........................................197
Section 12.1 REMIC Administration............................197
Section 12.2 Prohibited Transactions and Activities..........202
Section 12.3 Modifications of Mortgage Loans.................203
Section 12.4 Liability with Respect to Certain Taxes and
Loss of REMIC Status............................203
Section 12.5 Grantor Trust Reporting.........................203
ARTICLE XIII MISCELLANEOUS PROVISIONS....................................204
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 13.1 Binding Nature of Agreement.....................204
Section 13.2 Entire Agreement................................204
Section 13.3 Amendment.......................................204
Section 13.4 GOVERNING LAW...................................206
Section 13.5 Notices.........................................206
Section 13.6 Severability of Provisions......................206
Section 13.7 Indulgences; No Waivers.........................206
Section 13.8 Headings Not to Affect Interpretation...........207
Section 13.9 Benefits of Agreement...........................207
Section 13.10 Special Notices to the Rating Agencies..........207
Section 13.11 Counterparts....................................208
Section 13.12 Intention of Parties............................209
Section 13.13 Recordation of Agreement........................210
-vii-
THIS POOLING AND SERVICING AGREEMENT is dated as of February
1, 2000 (this "Agreement") among BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC., a Delaware corporation, as depositor (the "Depositor"),
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as servicer (the "Servicer"), GMAC
COMMERCIAL MORTGAGE CORPORATION, as special servicer (the "Special
Servicer"), LASALLE BANK NATIONAL ASSOCIATION, as trustee of the Trust
(the "Trustee"), ABN AMRO BANK N.V., only in its capacity as a fiscal
agent pursuant to Article IV hereof (the "Fiscal Agent"), and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, only in its capacity as paying agent,
certificate registrar and authenticating agent herein (the "Paying
Agent").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage
Loans from Bear, Xxxxxxx Funding, Inc., as seller ("BSF"), Xxxxx Fargo
Bank, National Association, as seller (in such capacity, "Xxxxx Fargo")
and Xxxxxx Xxxxxxx Mortgage Capital Inc., as seller ("MSMC"), and will be
the owner of the Mortgage Loans and the other property being conveyed by
it to the Trustee for inclusion in the Trust which is hereby created. On
the Closing Date, the Depositor will acquire (i) the REMIC I Regular
Interests and the Class R-I Certificate as consideration for its transfer
to the Trust of the Mortgage Loans and the other property constituting the
Trust; (ii) the REMIC II Regular Interests and the Class R-II Certificates
as consideration for its transfer of the REMIC I Interests to the Trust;
and (iii) the REMIC III Certificates as consideration for its transfer of
the REMIC II Regular Interests to the Trust. The Depositor has duly
authorized the execution and delivery of this Agreement to provide for the
foregoing and the issuance of (A) the REMIC I Regular Interests and the
Class R-I Certificates representing in the aggregate the entire beneficial
ownership of REMIC I, (B) the REMIC II Regular Interests and the Class
R-II Certificates representing in the aggregate the entire beneficial
ownership of REMIC II and (C) the REMIC III Certificates representing in
the aggregate the entire beneficial ownership of REMIC III. All covenants
and agreements made by the Depositor and the Trustee herein with respect
to the Mortgage Loans and the other property constituting the Trust are
for the benefit of the Holders of the REMIC I Regular Interests, the REMIC
II Regular Interests, the Residual Certificates, and the REMIC Regular
Certificates. The parties hereto are entering into this Agreement, and the
Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged.
The Class X-0, Xxxxx X-0, Class X, Class B, Class C, Class D,
Class E and Class F Certificates have been offered for sale pursuant to
the prospectus (the "Prospectus") dated January 24, 2000, as supplemented
by the preliminary prospectus supplement dated January 24, 2000 (together
with the Prospectus, the "Preliminary Prospectus Supplement") and as
further supplemented by the final prospectus supplement dated February 7,
2000 (together with the Prospectus, the "Final Prospectus Supplement") and
the Class G, Class H, Class I, Class J, Class K, Class L and Class M
Certificates have been offered for sale pursuant to the Private Placement
Memorandum dated February 7, 2000 (the "Private Placement Memorandum").
The following sets forth the Class designation, Pass-Through
Rate, initial Aggregate Certificate Balance (or initial Notional Amount)
and Final Scheduled Distribution Date for each Class of REMIC I Regular
Interests and the Class R-I Certificates comprising the interests in REMIC
I, each Class of REMIC II Regular Interests and the Class R-II Certificate
comprising the interests in REMIC II and each Class of REMIC III
Certificates comprising the interests in REMIC III created hereunder:
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I
Regular Interest") will relate to a specific Mortgage Loan. Each
Corresponding REMIC I Regular Interest, other than the REMIC I Regular
Interest X-1, will have a pass-through rate equal to the REMIC I Net
Mortgage Rate of the related Mortgage Loan, an initial principal amount
(the initial "Certificate Balance") equal to the Scheduled Principal
Balance as of the Cut-Off Date (as herein defined) of the Mortgage Loan to
which the Corresponding REMIC I Regular Interest relates, and a latest
possible maturity date set to the Maturity Date (as defined herein) of the
Mortgage Loan to which the Corresponding REMIC I Regular Interest relates.
The REMIC I Regular Interest X-1 will be an Interest entitled to payments
of the Class X-1 Interest Amount. The Class R-I Certificate will be
designated as the sole class of residual interests in REMIC I and will
have no Certificate Balance and no Pass-Through Rate, but will be entitled
to receive the proceeds of any assets remaining in REMIC I after all
classes of REMIC I Regular Interests have been paid in full.
REMIC II
The REMIC II Regular Interests, other than the REMIC II
Regular Interest X-1, have the pass-through rates and Certificate Balances
set forth in the definition thereof. The Class R-II Certificate will be
designated as the sole class of residual interests in REMIC II and will
have no Certificate Balance and no Pass-Through Rate, but will be entitled
to receive the proceeds of any assets remaining in REMIC II after all
classes of REMIC II Regular Interests have been paid in full. The REMIC II
Regular Interest X-1 will be an Interest entitled to payments made on the
REMIC I Class X-1 Regular Interest.
2
REMIC III
Designation Initial Initial Final Scheduled Final Rated
----------- Pass-Through Aggregate Distribution Date(b) Distribution
Rate(a) Certificate -------------------- Date(c)
------- Principal or -------
Notional Amount
---------------
Class A-1 7.640% $260,078,000 February 15, 2009 February 15, 2032
Class A-2 7.780% $454,979,000 February 15, 2010 February 15, 2032
Class X (d) 0.24256% $888,269,752 November 15, 2019 February 15, 2032
Class B 7.772% $31,089,000 February 15, 2010 February 15, 2032
Class C 7.892% $35,531,000 February 15, 2010 February 15, 2032
Class D 7.902% $8,882,000 February 15, 2010 February 15, 2032
Class E 7.902% $26,648,000 February 15, 2010 February 15, 2032
Class F 7.902% $8,882,000 February 15, 2010 February 15, 2032
Class G 6.500% $15,545,000 January 15, 2011 February 15, 2032
Class H 6.500% $13,324,000 January 15, 2011 February 15, 2032
Class I 6.500% $6,662,000 January 15, 2012 February 15, 2032
Class J 6.500% $5,552,000 October 15, 2012 February 15, 2032
Class K 6.500% $8,882,000 December 15, 2013 February 15, 2032
Class L 6.500% $3,331,000 May 15, 2014 February 15, 2032
Class M(e) 6.500% $8,884,752 November 15, 2019 N/A
Class R-III(f) N/A N/A N/A N/A
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined
as described herein under the definition of "Pass-Through Rate."
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is
expected to be paid in full, assuming that timely payments (and no
prepayments) will be made on the Mortgage Loans in accordance with
their terms.
(c) The Final Rated Distribution Date for each Class of Certificates is
February 15, 2032. That date is approximately 24 months following
the end of the amortization term of the Mortgage Loan that, as of
the Closing Date, has the longest remaining amortization term.
(d) The Class X Certificates will also be entitled to payment of the
Class X-1 Interest Amount.
(e) The Class M Certificates represent ownership of one REMIC III
Regular Interest, the REMIC III Class M Regular Interest (entitled
to the principal and interest set forth above). In addition, the
Class M Certificates will be entitled to Excess Interest (which will
not be a part of any REMIC Pool). The parties intend that (i) the
portion of the Trust representing the Excess Interest and the Excess
Interest Sub-account shall be treated as a grantor trust under
Subpart E of Part 1 of Subchapter J of Chapter 1 of Subtitle A of
the Code and (ii) the Class M Certificates (other than the portion
thereof consisting of the REMIC III Class M Regular Interest) shall
represent undivided beneficial interests in the portion of the Trust
consisting of the entitlement to receive Excess Interest.
(f) The Class R-III Certificates will be entitled to receive the
proceeds of any remaining assets in REMIC III after the principal
amounts of all Classes of Certificates have been reduced to zero.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $888,269,752.
3
As provided herein, with respect to the Trust, the Paying
Agent will, on behalf of the Trustee, make an election for the segregated
pool of assets described in the first paragraph of Section 12.1(a) hereof
(including the Mortgage Loans) to be treated for federal income tax
purposes as a real estate mortgage investment conduit ("REMIC I"). The
REMIC I Regular Interests will be designated as the "regular interests" in
REMIC I and the Class R-I Certificates will be designated as the sole
class of "residual interests" in REMIC I.
As provided herein, with respect to the Trust, the Paying
Agent will, on behalf of the Trustee, make an election for the segregated
pool of assets described in the second paragraph of Section 12.1(a) hereof
consisting of the REMIC I Regular Interests to be treated for federal
income tax purposes as a real estate mortgage investment conduit ("REMIC
II"). The REMIC II Regular Interests will be designated as the "regular
interests" in REMIC II and the Class R-II Certificates will be designated
as the sole class of "residual interests" in REMIC II for purposes of the
REMIC Provisions.
As provided herein, with respect to the Trust, the Paying
Agent on behalf of the Trustee will make an election for the segregated
pool of assets described in the third paragraph of Section 12.1(a) hereof
consisting of the REMIC II Regular Interests to be treated for federal
income tax purposes as a real estate mortgage investment conduit ("REMIC
III"). The Class X-0, Xxxxx X-0, Class X, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class I, Class J, Class K and Class L
Certificates and the REMIC III Class M Regular Interest will be designated
as the "regular interests" in REMIC III and the Class R-III Certificates
(together with the REMIC Regular Certificates, the "REMIC III
Certificates") will be designated as the sole class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"ACCOUNTANT" means a person engaged in the practice of accounting
who is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each
Distribution Date and any Class of Interests or Certificates, other than
the Class X Certificates, the Residual Certificates, REMIC I Regular
Interest X-1 and REMIC II Regular Interest X-1, interest accrued during
the Interest Accrual Period relating to such Distribution Date on the
aggregate Certificate Balance of such Class or Interest as of the close of
business on the immediately preceding Distribution Date at the respective
rates per annum set forth in the definition of the applicable Pass-Through
Rate for each such Class. Accrued Certificate Interest on the Class X
Certificates for each Distribution Date will equal the Class X Interest
Amount.
"ACQUISITION DATE" means the date upon which, under the Code
(and in particular the REMIC Provisions and Section 856(e) of the Code),
the Trust or a REMIC Pool is deemed to
4
have acquired a Mortgaged Property (or an interest therein, in the case of
the Mortgaged Property securing the Related Trust Fund Mortgage Loan and
the Pari Passu Loan).
"ADDITIONAL TRUST EXPENSE" means any of the following items:
(i) Special Servicing Fees and Liquidation Fees (to the extent not
collected from the related Mortgagor), (ii) Advance Interest that cannot
be reimbursed from collections on the related Mortgage Loan or REO
Property; (iii) amounts paid to indemnify the Servicer, Special Servicer,
the 99-C1 Servicer, the 99-C1 Special Servicer, Trustee, Paying Agent or
Fiscal Agent (or any other Person) pursuant to the terms of this
Agreement; (iv) to the extent not otherwise paid, any federal, state, or
local taxes imposed on the Trust or its assets and paid from amounts on
deposit in the Certificate Account or Distribution Account; (v) the amount
of any Advance that is not recovered from the proceeds of a Mortgage Loan
upon a Final Recovery Determination and (vi) to the extent not included in
the calculation of a Realized Loss and not covered by indemnification by
one of the parties hereto or otherwise, any other unanticipated cost,
liability, or expense (or portion thereof) of the Trust (including costs
of collecting such amounts or other Additional Trust Expenses) which the
Trust has not recovered, and in the judgment (consistent with the
Servicing Standard) of the Servicer (or Special Servicer, in the case of a
Specially Serviced Mortgage Loan) will not, recover from the related
Mortgagor or Mortgaged Property or otherwise, including a Modification
Loss described in clause (ii) of the definition thereof. Notwithstanding
anything to the contrary, "Additional Trust Expenses" shall not include
allocable overhead of the 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.
"ADMINISTRATIVE COST RATE" means the sum of the Servicing Fee
Rate and the Trustee Fee Rate and, in the case of the Pari Passu Loan, the
Pari Passu Loan Servicing Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the Servicer, the
Trustee or the Fiscal Agent on outstanding Advances pursuant to Section
4.5 of this Agreement and any interest payable to the 99-C1 Servicer with
respect to Pari Passu Loan Nonrecoverable P&I Advances and Pari Passu Loan
Nonrecoverable Servicing Advances pursuant to Section 4.4(b) hereof.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate
as published in the "Money Rates" section of The Wall Street Journal from
time to time or such other publication as determined by the Trustee in its
reasonable discretion.
"ADVANCE REPORT DATE" means the Business Day prior to each
Distribution Date.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i)
endanger the status of any REMIC as a REMIC or (ii) subject to Section
9.14(e), result in the imposition of a tax upon the income of any REMIC or
any of their respective assets or transactions, including (without
limitation) the tax on prohibited transactions as defined in Code Section
860F(a)(2) and the tax on prohibited contributions set forth in Section
860G(d) of the Code.
5
"AFFILIATE" means, with respect to any specified Person, any
other Person controlling or controlled by or under common control with
such specified Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the
Certificate Balances of the REMIC III Certificates, the REMIC I Interests
or the REMIC II Interests, as the case may be, at any date of
determination. With respect to a Class of Certificates or Interests,
Aggregate Certificate Balance shall mean the aggregate of the Certificate
Balances of all Certificates or Interests, as the case may be, of that
Class at any date of determination or by Percentage Interest, in the case
of the Class R-I, Class R-II or Class R-III Certificates.
"AGGREGATE PRINCIPAL BALANCE" means, at the time of any
determination and as the context may require, the aggregate of the
Scheduled Principal Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANTICIPATED REPAYMENT DATE" means, with respect to any ARD
Loan, the anticipated maturity date set forth in the related Mortgage
Note.
"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of
the same type as, and in the same geographic area as, the Mortgaged
Property being appraised, which appraisal complies with the Uniform
Standards of Professional Appraisal Practices and states the "market
value" of the subject property as defined in 12 C.F.R. ss. 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan,
not later than the earliest of (i) the date 120 days after the occurrence
of any delinquency in payment with respect to such Mortgage Loan if such
delinquency remains uncured, (ii) the date 30 days after receipt of notice
that the related borrower has filed a bankruptcy petition or a receiver is
appointed in respect of the related Mortgaged Property, provided such
petition or appointment is still in effect, (iii) the effective date of
any modification to a Money Term of a Mortgage Loan, other than an
extension of the due date that a Balloon Payment is due for a period of
less than six months, and (iv) the date 30 days following the date the
related Mortgaged Property becomes an REO Property.
"APPRAISAL REDUCTION" means, with respect to any Required
Appraisal Loan with respect to which an Appraisal or internal valuation is
performed pursuant to Section 6.8, an amount equal to the excess of (A)
the sum, as of the first Determination Date that is at least 15 days after
the date on which the Appraisal or internal valuation is obtained or
performed, of (i) the Scheduled Principal Balance of such Mortgage Loan
(or, in the case of an REO Property, the related REO Mortgage Loan), (ii)
to the extent not previously advanced, all unpaid interest on
6
such Mortgage Loan at a per annum rate equal to the Mortgage Rate, (iii)
all unreimbursed Advances and interest on Advances at the Advance Rate
with respect to such Mortgage Loan, and (iv) to the extent funds on
deposit in any applicable Escrow Accounts are not sufficient therefor, all
currently due and unpaid real estate taxes and assessments, insurance
premiums, if applicable, ground rents and other amounts which were to be
deposited in any Escrow Account (i.e., maintenance reserves and
environmental reserves) in respect of such Mortgaged Property or REO
Property, as the case may be, over (B) 90% of the Appraised Value (net of
any prior mortgage liens) of such Mortgaged Property or REO Property as
determined by such Appraisal or internal valuation, as the case may be
(or, with respect to the Pari Passu Loan, the pro rata portion of the
Appraised Value allocable thereto). The Appraised Value of a Mortgaged
Property shall be reduced to zero on the date of sale or other disposition
of such Mortgaged Property. In addition, the Appraised Value shall be
reduced if any portion of a Mortgaged Property is sold or otherwise
disposed based upon the portion of the Appraised Value allocable to the
portion of the Mortgaged Property sold or otherwise disposed of. Each
Appraisal or internal valuation for a Required Appraisal Loan shall be
updated annually. The Appraisal Reduction for each Required Appraisal Loan
will be recalculated based on subsequent Appraisals, internal valuations
or updates. Any Appraisal Reduction for any Mortgage Loan shall be reduced
to reflect any Realized Principal Losses on the Required Appraisal Loan.
Each Appraisal Reduction will be reduced to zero as of the date the
related Mortgage Loan is brought current under the then current terms of
the Mortgage Loan for at least three consecutive months, and no Appraisal
Reduction will exist as to any Mortgage Loan after it has been paid in
full, liquidated, repurchased or otherwise disposed of, or will be reduced
by the amount of any Realized Loss of principal on the related Mortgage
Loan incurred prior to the liquidation or disposition thereof.
Notwithstanding the foregoing, if an internal valuation of the Mortgaged
Property is performed, the Appraisal Reduction will equal the greater of
(A) the amount calculated above and (B) 25% of the Principal Balance of
the Mortgage Loan.
"APPRAISED VALUE" means (i) with respect to any Mortgaged
Property (other than the Mortgaged Property relating to the Pari Passu
Loan), the appraised value thereof determined by an Appraisal of the
Mortgaged Property securing such Mortgage Loan made by an Independent
appraiser selected by the Servicer or the Special Servicer, as applicable
or, in the case of an internal valuation performed pursuant to Section
6.8, the value of the Mortgaged Property determined by such internal
valuation and (ii) with respect to the Mortgaged Property relating to the
Pari Passu Loan, the portion of the appraised value allocable thereto
determined pursuant to the 99-C1 Pooling and Servicing Agreement.
"ARD LOAN" means, any Mortgage Loan identified on the Mortgage
Loan Schedule as an ARD loan.
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage
Loan, any assignment of leases, rents and profits or equivalent
instrument, whether contained in the related Mortgage or executed
separately, assigning to the holder or holders of such Mortgage all of the
related Mortgagor's interest in the leases, rents and profits derived from
the ownership, operation, leasing or disposition of all or a portion of
the related Mortgaged Property as security for repayment of such Mortgage
Loan.
7
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage,
notice of transfer or equivalent instrument, in recordable form,
sufficient under the laws of the jurisdiction wherein the related
Mortgaged Property is located to reflect the transfer of the Mortgage to
the Trustee, which assignment, notice of transfer or equivalent instrument
may be in the form of one or more blanket assignments covering the
Mortgage Loans secured by Mortgaged Properties located in the same
jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any
Balloon Mortgage Loan for its Maturity Date (provided that such Mortgage
Loan has not been paid in full, and no Final Recovery Determination or
other sale or liquidation has occurred in respect thereof, on or before
the end of the Collection Period in which such Maturity Date occurs) and
for any subsequent Due Date therefor as of which such Mortgage Loan
remains outstanding and part of the Trust, if no Scheduled Payment (other
than the related delinquent Balloon Payment) is due for such Due Date, the
scheduled monthly payment of principal and interest deemed to be due in
respect thereof on such Due Date equal to the Scheduled Payment that would
have been due in respect of such Mortgage Loan on such Due Date, if it had
been required to continue to accrue interest in accordance with its terms,
and to pay principal in accordance with the amortization schedule in
effect immediately prior to, and without regard to the occurrence of, its
most recent Maturity Date (as such may have been extended in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or
a modification, waiver or amendment of such Mortgage Loan granted or
agreed to by the Servicer or the Special Servicer pursuant to the terms
hereof), and (ii) with respect to any REO Mortgage Loan for any Due Date
therefor as of which the related REO Property remains part of the Trust,
the scheduled monthly payment of principal and interest deemed to be due
in respect thereof on such Due Date equal to the Scheduled Payment (or, in
the case of a Balloon Mortgage Loan described in the preceding clause of
this definition, the Assumed Scheduled Payment) that was due in respect of
the related Mortgage Loan on the last Due Date prior to its becoming an
REO Mortgage Loan.
"AUTHENTICATING AGENT" means any authenticating agent serving
in such capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an
Officer's Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" shall have the
meaning set forth in Section 4.6(a) hereof.
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, an amount equal to the aggregate of (a) all amounts on
deposit in the Distribution Account as of the commencement of business on
such Distribution Date that represent payments and other collections on or
in respect of the Mortgage Loans and any REO Properties that were received
by the Servicer or the Special Servicer through the end of the related
Collection Period exclusive of (i) any such amounts that were deposited in
the Distribution Account in error, (ii) amounts that are payable or
reimbursable to any Person other than the Certificateholders (including
amounts payable to the Servicer in respect of unpaid Servicing Fees, the
Special Servicer in respect of unpaid Special Servicer Compensation, the
Trustee in respect of unpaid Trustee Fees or the
8
Paying Agent in respect of unpaid Paying Agent Fees), (iii) amounts that
constitute Yield Maintenance Charges, and (iv) if such Distribution Date
occurs during January or February of any year, the Interest Reserve
Amounts with respect to Interest Reserve Loans deposited in the Interest
Reserve Sub-account, and (b) if and to the extent not already among the
amounts described in clause (a), (i) the aggregate amount of any P&I
Advances made by the Servicer, the Trustee or the Fiscal Agent for such
Distribution Date pursuant to Section 4.1 and/or Section 4.3, (ii) the
aggregate amount of any Compensating Interest payments made by the
Servicer or the Special Servicer for such Distribution Date pursuant to
the terms hereof, and (iii) if such Distribution Date occurs in March of
any year, commencing March 2001, the aggregate of the Interest Reserve
Amounts then held on deposit in the Interest Reserve Sub-account in
respect of each Interest Reserve Loan.
"BALLOON INTEREST EXCESS": With respect to any Balloon Payment
made 60 or more days after the original related Maturity Date, for any
related Distribution Date and the related Collection Period, if the
Balloon Payment is made after the related Due Date through and including
the last day of such Collection Period, the amount of interest that
accrues on such Balloon Payment from the related Due Date to the date such
payment was made (net of the Servicing Fee or Special Servicing Fee and
the Trustee Fee), to the extent collected.
"BALLOON INTEREST SHORTFALL": With respect to any Balloon
Payment made 60 or more days after the original related Maturity Date, for
any Distribution Date and the related Collection Period, a shortfall in
the collection of a full month's interest on any Balloon Payment made
prior to the related Due Date occurring during such Collection Period. The
amount of any Balloon Interest Shortfall shall equal the excess of (A) the
aggregate amount of interest which would have accrued on such Balloon
Payment for the 30 days ending on the related Due Date if such Balloon
Payment had not been made prior to such Due Date (net of the Servicing Fee
or Special Servicing Fee and the Trustee Fee) over (B) the aggregate
interest that did so accrue on such Balloon Payment through the date such
payment was made.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan which will not
be fully amortized by its original or modified Maturity Date, based on the
fixed monthly Scheduled Payment.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage
Loan, the Scheduled Payment payable on the Maturity Date of such Mortgage
Loan.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under
the United States Bankruptcy Code or any other similar state law or other
proceeding with respect to the Mortgagor of, or Mortgaged Property under,
a Mortgage Loan, including, without limitation, any Deficient Valuation
Amount or losses, if any, resulting from any Debt Service Reduction Amount
for the month in which the related Distribution Date occurs.
"BASE INTEREST FRACTION": With respect to any Principal
Prepayment on any Mortgage Loan that provides for payment of a Yield
Maintenance Charge in connection therewith and with respect to any of the
Class A, Class B, Class C, Class D, Class E and Class F Certificates, a
fraction (A) whose numerator is the greater of (x) zero and (y) the
difference
9
between (i) the Pass-Through Rate on such Class of Offered Certificates
and (ii) the Yield Rate used in calculating the Yield Maintenance Charge
with respect to such Principal Prepayment and (B) whose denominator is the
difference between (i) the Mortgage Rate on the related Mortgage Loan and
(ii) the Yield Rate used in calculating the Yield Maintenance Charge with
respect to such principal prepayment; provided, however, that under no
circumstances shall the Base Interest Fraction be greater than one. If
such Yield Rate is greater than the Mortgage Rate on the related Mortgage
Loan, then the Base Interest Fraction shall equal zero.
"BENEFIT PLAN OPINION" means an Opinion of Counsel
satisfactory to the Trustee and the Servicer to the effect that any
proposed transfer will not (i) cause the assets of any REMIC to be
regarded as plan assets for purposes of the Plan Asset Regulations or (ii)
give rise to any fiduciary duty on the part of the Depositor, the
Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Fiscal Agent.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a
beneficial interest in a Class of Certificates, ownership and transfer of
which shall be made through book entries as described in Section 3.7;
provided, that after the occurrence of a condition whereupon book-entry
registration and transfer are no longer authorized and Definitive
Certificates are to be issued to the Certificate Owners, such certificates
shall no longer be "Book-Entry Certificates."
"BOND LEVEL FILE" means a file in CMSA format (as in effect as
of the date hereof) prepared by the Paying Agent containing substantially
the information specified in the form of "bond level file" produced by the
CMSA. The form of such report is specified by the CMSA and can be accessed
on the CMSA internet website at xxx.xxxx.xxx.
"BSF" has the meaning assigned in the Preliminary Statement hereto.
"BSF LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"BUSINESS DAY" means any day other than (i) a Saturday or a
Sunday, (ii) a legal holiday in New York, New York, Boston, Massachusetts,
Chicago, Illinois, San Francisco, California or the principal cities in
which the Special Servicer, the Trustee, the Paying Agent, or the Servicer
conducts servicing or trust operations, or (iii) a day on which banking
institutions or savings associations in New York, New York, Minneapolis,
Minnesota, Columbia, Maryland, Chicago, Illinois or San Francisco,
California are authorized or obligated by law or executive order to be
closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan
other than a Mortgage Loan with respect to which the related Mortgaged
Property became REO Property, the amount of all Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, Purchase Proceeds and other
payments or recoveries with respect to a Final Recovery Determination. The
Servicer shall maintain records in accordance with the Servicing Standard
(and, in the case of Specially Serviced Mortgage Loans, based on the
written reports with respect to such Cash Liquidation delivered by the
Special Servicer to the Servicer), of each Cash Liquidation.
10
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts
established and maintained by the Servicer (or any Sub-Servicer on behalf
of the Servicer) pursuant to Section 5.1(a), which each account shall be
an Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate
or Interest (other than the Class X Certificates, REMIC I Regular Interest
X-1, REMIC II Regular Interest X-1 and the Residual Certificates) as of
any Distribution Date, the maximum specified dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being
equal to the initial principal amount set forth on the face of such
Certificate (in the case of a Certificate), or as ascribed thereto in the
Preliminary Statement (in the case of an Interest), minus (i) the amount
of all principal distributions previously made with respect to such
Certificate pursuant to Section 6.4(a) or deemed to have been made with
respect to such Interest pursuant to Section 6.2(a) or Section 6.3(a), as
the case may be, (ii) all Realized Losses allocated or deemed to have been
allocated to such Interest or Certificate pursuant to Section 6.5, and
(iii) Expense Losses allocated to such Interest or Certificate pursuant to
Section 6.5. The REMIC I Regular Interest X-1 and the REMIC II Regular
Interest X-1 have no Certificate Balance.
"CERTIFICATE OWNER" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Book-Entry
Certificate, as may be reflected on the books of the Clearing Agency, or
on the books of a Person maintaining an account with such Clearing Agency
(directly or as an indirect participant, in accordance with the rules of
such Clearing Agency).
"CERTIFICATE REGISTER" has the meaning provided in Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant
to Section 3.2 and initially shall be the Paying Agent.
"CERTIFICATEHOLDERS" has the meaning provided in the definition
of "Holder."
"CERTIFICATES" means, collectively, the REMIC III
Certificates, the Class R-I Certificates and the Class R-II Certificates.
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests or REMIC III Certificates, any Class of such Certificates or
Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS X
CERTIFICATES," "CLASS B CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D
CERTIFICATES," "CLASS E CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G
CERTIFICATES," "CLASS H CERTIFICATES," "CLASS I CERTIFICATES," "CLASS J
CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L CERTIFICATES," "CLASS M
CERTIFICATES," "CLASS R-I CERTIFICATES," "CLASS R-II CERTIFICATES" or
"CLASS R-III CERTIFICATES," mean the Certificates designated as "Class
A-1," "Class A-2," "Class X," "Class B," "Class C," "Class D," "Class E,"
"Class F," "Class G," "Class H," "Class I," "Class J," "Class K," "Class
L," "Class
11
M," "Class R-I," "Class R-II" and "Class R-III," respectively, on the face
thereof, in substantially the form attached hereto as Exhibits A-1 through
A-18 hereof.
"CLASS A CERTIFICATES" means the Class A-1 Certificates and
Class A-2 Certificates, collectively.
"CLASS X INTEREST AMOUNT" means, with respect to any
Distribution Date and the related Interest Accrual Period, the sum of (A)
interest equal to the product of (i) one-twelfth of a per annum rate equal
to the weighted average of the Class X Strip Rates for the Class A-1
Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class I
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, and Class M Certificates, weighted on the basis of the
respective Certificate Balances of such Classes of Certificates, and (ii)
the Class X Notional Amount for such Distribution Date and (B) the Class
X-1 Interest Amount for such Distribution Date, but such sum not to exceed
the excess, if any, of (x) the sum of (I) interest equal to the product of
(a) the aggregate Certificate Balance of the Certificates and (b) one
twelfth of a per annum rate equal to the weighted average of the REMIC I
Net Mortgage Rates (taking into account any reductions in the Mortgage
Rates of the Interest Reserve Loans resulting from the modification of
such Mortgage Loans or otherwise following the Cut-Off Date) and (II) the
Class X-1 Interest Amount over (y) the aggregate Accrued Certificate
Interest for such Distribution Date on the Class A-1 Certificates, Class
A-2 Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class I Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, and Class M
Certificates.
"CLASS X-1 INTEREST AMOUNT" means, for each Interest Reserve
Loan, the excess for each twelve month period beginning on March 1 of any
year and ending on the last day of February of the succeeding year of
interest accrued on such Mortgage Loan at the Mortgage Rate (exclusive of
any Excess Interest) minus the Administrative Cost Rate over interest
accrued during such twelve month period on the related REMIC I Regular
Interest at the REMIC I Net Mortgage Rate. Class X-1 Interest shall be
payable in part on the Distribution Dates occurring in the months of
April, June, August, September, November and March and, if the succeeding
February has 29 days, January. Payments to be made on the Distributions
Dates in April, June, August and November (and January, when applicable)
shall consist of 1 day of interest on the Scheduled Principal Balance of
each Interest Reserve Loan as of the end of the preceding calendar month
at the Mortgage Rate (exclusive of any Excess Interest) applicable for
such Distribution Date. The payment to be made on the Distribution Date in
March shall consist of the excess of the Interest Reserve Amount over the
aggregate of 2 days (1 day, if the preceding February was a month
consisting of 29 days) of interest on the Scheduled Principal Balance of
each Interest Reserve Loan as of the end of the preceding calendar month
at the Mortgage Rate (exclusive of any Excess Interest) applicable for
such Distribution Date.
"CLASS X NOTIONAL AMOUNT" means, with respect to any
Distribution Date, the aggregate of the Certificate Balances of the REMIC
Regular Certificates as of the close of business on the related
Distribution Date.
12
"CLASS X STRIP RATE" means, for any Distribution Date, with
respect to any Class of Certificates (other than the Class X Certificates
and the Residual Certificates), the excess, if any, of the Weighted
Average REMIC I Net Mortgage Rate (but for these purposes only, taking
into account reductions in such rates resulting from the modification of
Mortgage Loans or otherwise following the Closing Date) for such
Distribution Date over the Pass-Through Rate for such Class of
Certificates.
"CLEARING AGENCY" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the 1934 Act, which initially
shall be the Depository.
"CLEARSTREAM" means Clearstream Banking, societe anonyme.
"CLOSING DATE" means February 10, 2000.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA REPORT" means the reports in CMSA format (as in effect
on the date hereof) prepared by the Servicer (combining reports prepared
by the Servicer and the Special Servicer) and the Special Servicer (with
respect to Specially Serviced Mortgage Loans and REO Properties)
containing substantially the information specified in the following CMSA
forms: (i) a "comparative financial status report;" (ii) a "delinquent
loan status report;" (iii) a "historical loan modification report;" (iv)
an "historical loss estimate report;" and (v) an "REO status report." The
forms of such reports are specified by the CMSA and can be accessed on the
CMSA internet website at xxx.xxxx.xxx.
"CODE" means the Internal Revenue Code of 1986, as amended,
any successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and
proposed regulations thereunder, to the extent that, by reason of their
proposed effective date, such proposed regulations would apply to the
Trust.
"COLLATERAL SUMMARY FILE" means a file in CMSA format (as in
effect as of the date hereof) prepared by the Paying Agent containing
substantially the information specified in the form of "collateral summary
file" produced by the CMSA. The form of such report is specified by the
CMSA and can be accessed on the CMSA internet website at xxx.xxxx.xxx.
"COLLECTION PERIOD" means, with respect to any Distribution
Date, the period beginning on the day after the Determination Date in the
month preceding the month of such Distribution Date (or in the case of the
first Distribution Date, the Cut-Off Date) and ending on the Determination
Date in the month in which the Distribution Date occurs.
"COMPENSATING INTEREST" means with respect to any Distribution
Date, an amount equal to the excess of (A) Prepayment Interest Shortfalls
resulting from Principal Prepayments during the related Collection Period
over (B) Prepayment Interest Excesses resulting from Principal Prepayments
during the same Collection Period, plus an amount equal to the excess of
(A) Balloon Interest Shortfalls resulting from the voluntary payment prior
to the Due Date during such Collection Period of Balloon Payments 60 or
more days after the original
13
Maturity Dates thereof over (B) Balloon Interest Excesses resulting from
payments during such Collection Period of Balloon Payments that were made
60 or more days after their respective Maturity Dates; it being understood
that the Servicer or the Special Servicer, respectively, will be
responsible for Compensating Interest payments relating to Mortgage Loans
that are being Serviced or Specially Serviced, as the case may be, and
that, in any event (i) Compensating Interest to be paid by the Servicer
hereunder will be limited to the portion of the aggregate Servicing Fee
for the related Collection Period calculated in respect of all the
Mortgage Loans (including REO Mortgage Loans) less the portion payable to
Sub-Servicers as Sub-Servicing Fees and (ii) Compensating Interest to be
paid by the Special Servicer hereunder will be limited to the portion of
the aggregate Special Servicing Fee for the related Collection Period
calculated in respect of all the Specially Serviced Mortgage Loans,
including REO Mortgage Loans.
"CONDEMNATION PROCEEDS" means any awards resulting from the
full or partial condemnation or any eminent domain proceeding or any
conveyance in lieu or in anticipation thereof with respect to a Mortgaged
Property by or to any governmental, quasi-governmental authority or
private entity with condemnation powers other than amounts to be applied
to the restoration, preservation or repair of such Mortgaged Property or
released to the related Mortgagor in accordance with the terms of the
Mortgage Loan and with respect to the Mortgaged Property securing the
Related Trust Fund Mortgage Loan and the Pari Passu Loan, any portion of
such amounts allocable to the Pari Passu Loan.
"CONTROLLING CLASS" means the most subordinate Class of
Certificates outstanding at any time of determination; provided, that, no
Class may be the Controlling Class at any time that the then Certificate
Balance of such Class is less than 25% of the initial Certificate Balance
of such Class. As of the Closing Date, the Controlling Class will be the
Class M Certificates. For purposes of determining the identity of the
Controlling Class, the Certificate Balance of each Class shall not be
deemed to be reduced by the amount of any Appraisal Reductions allocated
to such Class.
"CONTROLLING PERSON" means, with respect to any Person, any
other Person who "controls" such Person within the meaning of the 1933
Act.
"CORPORATE TRUST OFFICE" means, with respect to the
presentment and surrender of Certificates for the final distribution
thereon or the presentment and surrender of Certificates for any other
purpose, the office of the Certificate Registrar and, with respect to
other purposes, the principal corporate trust office of the Trustee. The
principal corporate trust office of the Trustee is presently located at
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Asset-Backed Securities Trust Services Group, Bear Xxxxxxx Series 2000-WF1
and the office of the Certificate Registrar is presently located at
Norwest Center, Sixth and Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000,
Attention: Corporate Trust Services (CMBS)--Bear Xxxxxxx Series 2000-WF1,
or at such other address as the Trustee or the Certificate Registrar, as
the case may be, may designate from time to time by notice to the
Certificateholders, the Depositor, the Servicer, the Paying Agent and the
Special Servicer.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to
each Mortgage Loan, the REMIC I Regular Interest having an initial
Certificate Balance equal to the
14
principal balance of such Mortgage Loan outstanding as of the Cut-Off
Date, after taking into account all principal and interest payments made
or due prior to the Cut-Off Date.
"CORRESPONDING REMIC II REGULAR INTEREST" means with respect
to each Class of Certificates, the REMIC II Regular Interest having the
same letter designation.
"CURRENTLY PAYING CLASS" means any one of the Class of
Interests which is currently receiving distributions of principal pursuant
to Section 6.2 hereof.
"CUSTODIAN" means any Person who is appointed by the Trustee
at any time as custodian pursuant to Section 7.9 and who is unaffiliated
with the Depositor and satisfies the eligibility requirements of the
Trustee as set forth in Section 7.5.
"CUSTOMER" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"CUT-OFF DATE" means the end of business on February 1, 2000.
"CUT-OFF DATE AGGREGATE PRINCIPAL BALANCE" means, with respect
to the Mortgage Loans on the Closing Date, the Aggregate Principal Balance
for all such Mortgage Loans as of the Cut-Off Date, reduced by all
payments of principal due on or before the Cut-Off Date whether or not
paid, and increased by Scheduled Payments of principal due after the
Cut-Off Date but received by the Servicer on or before the Cut-Off Date.
"DCR" means Duff & Xxxxxx Credit Rating Co. or its successor in
interest.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any
Mortgage Loan, as of any date of determination and for any period, the
amount calculated for such date of determination in accordance with the
procedures set forth in Exhibit T.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due
Date and the related Determination Date, the amount of the reduction of
the Scheduled Payment which a Mortgagor is obligated to pay on such Due
Date with respect to a Mortgage Loan as a result of any proceeding under
bankruptcy law or any similar proceeding (other than a Deficient Valuation
Amount); provided, however, that in the case of an amount that is
deferred, but not forgiven, such reduction shall include only the net
present value (calculated at the related Mortgage Rate) of the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan which is in
default under the terms of the applicable Mortgage Loan documentation and
for which any applicable grace period has expired.
"DEFEASANCE COLLATERAL": With respect to any Defeasance Loan,
the United States Treasury obligations required or permitted to be pledged
in lieu of prepayment pursuant to the terms thereof.
15
"DEFEASANCE LOAN": Any Mortgage Loan which requires the
related Mortgagor (or permits the holder of such Mortgage Loan to require
the related Mortgagor) to pledge Defeasance Collateral to such holder in
lieu of prepayment.
"DEFICIENT VALUATION" means, with respect to any Mortgage
Loan, a valuation by a court of competent jurisdiction of the Mortgaged
Property (or with respect to the Mortgaged Property securing the Pari
Passu Loan and the Related Trust Fund Mortgage Loan, the pro rata portion
of the valuation allocable to the Pari Passu Loan) relating to a Mortgage
Loan in an amount less than the then outstanding indebtedness under such
Mortgage Loan, which valuation results from a proceeding initiated under
the United States Bankruptcy Code, as amended from time to time, and that
reduces the amount the Mortgagor is required to pay under such Mortgage
Loan.
"DEFICIENT VALUATION AMOUNT" means the amount by which the
total amount due with respect to a Mortgage Loan (excluding interest not
yet accrued), including the principal balance of a Mortgage Loan plus any
accrued and unpaid interest thereon and any other amounts recoverable from
the Mortgagor with respect thereto pursuant to the terms thereof, is
reduced in connection with a Deficient Valuation.
"DEFINITIVE CERTIFICATES" means Certificates of any Class
issued in definitive, fully registered, certificated form without interest
coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is
repurchased from the Trust pursuant to the terms hereof or as to which one
or more Qualifying Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Bear Xxxxxxx Commercial Mortgage Securities
Inc., a Delaware corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations by
and among the Depositor, the Paying Agent and the Depository.
"DETERMINATION DATE" means, with respect to any Distribution
Date, the 5th Business Day prior to the related Distribution Date,
commencing March 8, 2000.
"DIRECTLY OPERATE" means, with respect to any REO Property,
the furnishing or rendering of services to the tenants thereof, the
management or operation of such REO Property, the holding of such REO
Property primarily for sale to customers (other than a sale of an REO
Property pursuant to and in accordance with Section 9.15 or Section 9.36),
the performance of any construction work thereon or any use of such REO
Property in a trade or business conducted by the Trust, in each case other
than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee
(or the Special Servicer on behalf of the Trustee) establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes
16
and insurance, or makes decisions as to repairs, tenant improvements or
capital expenditures with respect to such REO Property (including, without
limitation, construction activity to effect repairs or in connection with
leasing activity) or undertakes any ministerial action incidental thereto.
"DISQUALIFIED ORGANIZATION" means any of (i) the United
States, any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and,
except for FHLMC, a majority of its board of directors is not selected by
any such governmental unit), (ii) a foreign government, international
organization or any agency or instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives described in
Section 521 of the Code) which is exempt from tax imposed by Chapter 1 of
the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code,
and (v) any other Person so designated by the Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMICs, or any Person
having an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the transfer of an ownership
interest in a Residual Certificate to such Person. The terms "United
States," "State" and "international organization" shall have the meanings
set forth in Section 7701 of the Code or successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to
any Distribution Date and any Class of Certificates (other than the
Residual Certificates) or Interests, the sum of (A) Accrued Certificate
Interest, reduced by (i) any Net Aggregate Prepayment Interest Shortfalls
not offset by Compensating Interest, allocated on such Distribution Date
to such Class or Interest pursuant to Section 6.6, and (ii) Realized
Losses allocated on such Distribution Date to reduce the interest payable
to such Class or Interest pursuant to Section 6.5, plus (B) the Unpaid
Interest.
"DISTRIBUTION ACCOUNT" means the Distribution Account
maintained by the Paying Agent, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means the 15th day of each month or, if
such day is not a Business Day, the next succeeding Business Day,
commencing March 15, 2000.
"DOCUMENT DEFECT" has the meaning set forth in Section 2.3(a).
"DUE DATE" means, with respect to a Mortgage Loan, the date on
which a Scheduled Payment is due.
"ELIGIBLE ACCOUNT" means (i) an account or accounts maintained
with a depository institution or trust company the long-term unsecured
debt obligations of which are rated at least "AA-" or better by Fitch
IBCA, or if not rated by Fitch IBCA then otherwise approved by Fitch IBCA,
and rated "A" by DCR if rated by DCR or if not rated by DCR, then a
comparable rating from at least two nationally recognized statistical
rating organizations or
17
otherwise approved by DCR; or (ii) an account or accounts in which funds
will be held therein for 30 days or less which are maintained with a
depository institution or trust company, the short-term unsecured debt
obligations of which are rated "F-1+" or better by Fitch IBCA, or if not
rated by Fitch IBCA then otherwise approved by Fitch IBCA, and rated "D-1"
or better by DCR if rated by DCR, or if not rated by DCR then a comparable
rating from at least two nationally recognized statistical rating
organizations, in each case at the time of any deposit therein or
otherwise approved by DCR; or (iii) a segregated trust account or accounts
maintained with the corporate trust department of a federally or state
chartered depository institution or trust company acting in its fiduciary
capacity, which may be the Servicer (or any Affiliate of the Servicer),
the Paying Agent, the Fiscal Agent or Trustee, provided any such
institution is subject to regulations regarding fiduciary funds on deposit
substantially similar to 12 C.F.R. Section 9.10(b) and Rating Agency
Confirmation is obtained with respect to the maintenance of such account
in such institution; or (iv) any account which is fully insured by the
United States Government, the Federal Deposit Insurance Corporation
("FDIC") or any other agency or instrumentality of the United States; or
(v) any account, the establishment and maintenance of which is the subject
of a Rating Agency Confirmation; or (vi) an account or accounts maintained
with Xxxxx Fargo Bank, National Association (or Xxxxx Fargo & Company),
provided that the long-term unsecured obligations of Xxxxx Fargo Bank,
National Association (or Xxxxx Fargo & Company) are rated "A" or better by
DCR and Fitch IBCA. Eligible Accounts may bear interest.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property.
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the United
States of America, FNMA, FHLMC or any agency or instrumentality of the
United States of America the obligations of which are backed by the full
faith and credit of the United States of America; provided that any
obligation of, or guarantee by, FNMA or FHLMC, other than an unsecured
senior debt obligation of FNMA or FHLMC, shall be an Eligible Investment
only if Rating Agency Confirmation is obtained with respect to such
investment;
(ii) demand and time deposits in, certificates of
deposit of, or bankers' acceptances issued by, any depository institution
or trust company (including the Trustee, the Fiscal Agent, the Servicer,
the Special Servicer, the Paying Agent or any Affiliate of the Servicer,
the Special Servicer, the Trustee, the Fiscal Agent or the Paying Agent
acting in its commercial capacity) incorporated or organized under the
laws of the United States of America or any State thereof and subject to
supervision and examination by federal or state banking authorities, so
long as the commercial paper or other short-term debt obligations of such
depository institution or trust company are rated "D-1+" or better by DCR,
if rated by DCR or, if not rated by DCR, then a comparable rating from at
least two nationally recognized statistical rating organizations or
otherwise approved by DCR, and "F-1+" or better by Fitch IBCA, or if not
rated by Fitch IBCA then otherwise approved by Fitch IBCA, or are the
subject of a Rating Agency Confirmation, or demand and time deposits of
Xxxxx Fargo Bank, National Association (or Xxxxx Fargo & Company),
provided that the long-term unsecured obligations of Xxxxx Fargo Bank,
National Association (or Xxxxx Fargo & Company) are rated "A" or better by
DCR and Fitch IBCA;
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(iii) repurchase agreements or obligations with respect
to any security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or trust
company (acting as principal) described in clause (ii) above and where
such repurchase obligation will mature prior to the Business Day preceding
the next Distribution Date upon which, as described in the Agreement, such
amounts are required to be withdrawn from the related account and which
meets the minimum rating requirement for such entity described above;
(iv) securities (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities have ratings from Fitch IBCA and DCR that are at
least equal to the highest long-term credit ratings assigned by Fitch IBCA
and DCR, respectively, unless otherwise specified in writing by the Rating
Agency; provided that securities issued by any particular corporation will
not be Eligible Investments to the extent that investment therein will
cause the then outstanding principal amount of securities issued by such
corporation and held in the Certificate Account to exceed 10% of the sum
of the Aggregate Principal Balance and the aggregate principal amount of
all Eligible Investments in the Certificate Account;
(v) commercial paper (including both noninterest-bearing
discount obligations and interest-bearing obligations payable on demand or
on a specified date not more than one year after the date of issuance
thereof) rated "A-1" by Fitch IBCA (if rated by Fitch IBCA, or if not
rated by Fitch IBCA then otherwise approved by Fitch IBCA) and "D-1+" by
DCR, if rated by DCR and, if not rated by DCR, then a comparable rating
from at least two nationally recognized statistical rating organizations
or otherwise approved by DCR), or with respect to which Rating Agency
Confirmation has been obtained;
(vi) units of investment funds (including money market
funds) rated in the highest long-term category by Fitch IBCA, or if not
rated by Fitch IBCA then otherwise approved by Fitch IBCA, and the highest
long-term category by DCR or, if not rated by DCR, then a comparable
rating from at least two nationally recognized statistical rating
organizations or otherwise approved by DCR;
(vii) guaranteed reinvestment agreements maturing 365
days or less issued by any bank, insurance company or other corporation
rated in the highest long term unsecured rating, but in any event, not
less than "AAA" by Fitch IBCA (if rated by Fitch IBCA, or if not rated by
Fitch IBCA then otherwise approved by Fitch IBCA) and by DCR (if rated by
DCR) or, if not rated by DCR, then a comparable rating from at least two
nationally recognized statistical rating organizations or otherwise
approved by DCR;
(viii) any money market fund rated "AAA" by Fitch IBCA
or if not rated by Fitch IBCA, then otherwise approved by Fitch IBCA, and
"AAA" by DCR or, if not rated by DCR, then a comparable rating from at
least two nationally recognized statistical rating organizations or
otherwise approved by DCR, and any other demand, money-market or time
deposit, or any other obligation, security or investment, with respect to
which Rating Agency Confirmation is obtained; and
19
(ix) such other investments bearing interest or sold at
a discount, or earning a return "in the nature of interest" within the
meaning of Treasury Regulation Section 1.860G-2(g)(1) (as evidenced by an
Opinion of Counsel delivered to the Trustee by the Servicer at the
Servicer's expense) that are the subject of a Rating Agency Confirmation
and otherwise treated as "permitted investments" under Code Section
860G(a)(5);
provided (A) such investment is held for a temporary period pursuant to
Section 1.860G-2(g)(1) of the Treasury Regulations and (B) that no such
instrument shall be an Eligible Investment if such instrument evidences
either (X) a right to receive only interest payments or only principal
payments with respect to the obligations underlying such instrument or (Y)
a right to receive both principal and interest payments derived from
obligations underlying such instrument and the principal and interest
payments with respect to such instrument provide a yield to maturity of
greater than 120% of the yield to maturity at par of such underlying
obligations, or (Z) if it may be redeemed at a price below the purchase
price; and provided, further, that interest on any variable rate
instrument shall be tied to a single interest rate index plus a single
fixed spread (if any) and move proportionally with that index (the
foregoing clause shall not apply to investments in units of money market
funds pursuant to clause (vi) or clause (viii) above); and provided,
further, that no amount beneficially owned by any REMIC (including any
amounts collected by the Servicer but not yet deposited in the Certificate
Account) may be invested in investments treated as equity interests for
Federal income tax purposes, unless the Servicer and the Trustee shall
receive an Opinion of Counsel to the effect that such investment will not
adversely affect the status of any such REMIC as a REMIC under the Code or
result in imposition of a tax on any such REMIC. Each Eligible Investment
shall have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change and shall not be subject to
liquidation prior to maturity. No Eligible Investments shall be purchased
at a price in excess of par or have maturities in excess of one year. For
the purpose of this definition, units of investment funds (including money
market funds) shall be deemed to mature daily.
"ENVIRONMENTAL LAWS" means any and all federal, state and
local statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions, now or hereafter in effect, relating to
health or the environment or to emissions, discharges or releases of
chemical substances, including, without limitation, any and all
pollutants, contaminants, petroleum or petroleum products, asbestos or
asbestos-containing materials, polychlorinated biphenyls,
urea-formaldehyde insulation, radon, industrial, toxic or hazardous
substances or wastes, into the environment, including, without limitation,
ambient air, surface water, ground water or land, or otherwise relating to
the manufacture, processing, distribution, use, labeling, registration,
treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation
thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"ESCROW ACCOUNT" means an account established by the Servicer
pursuant to Section 8.3(e).
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"ESCROW AMOUNT" means any amount payable with respect to a
Mortgage Loan for taxes, assessments, water rates, Standard Hazard
Insurance Policy premiums, ground lease payments, reserves for capital
improvements, deferred maintenance, tenant improvements, leasing
commissions, environmental matters and other reserves or comparable items.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.28(b).
"EXCESS INTEREST" means, with respect to any ARD Loan that
does not pay on its Anticipated Repayment Date, the excess, if any of (i)
interest accrued at the rate of interest applicable to such Mortgage Loan
after such Anticipated Repayment Date (plus any interest on such interest
as may be provided for under the Mortgage Loan documents) over (ii)
interest accrued at the rate of interest applicable to such Mortgage Loan
before such Anticipated Repayment Date. Excess Interest is an asset of the
Trust, but shall not be an asset of any REMIC Pool formed hereunder.
"EXCESS INTEREST SUB-ACCOUNT" means an administrative
sub-account of the Distribution Account. The Excess Interest Sub-account
shall not be an asset of any REMIC Pool formed hereunder.
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any
Mortgage Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan
or related REO Property, over (ii) the amount that would have been
received if a Principal Prepayment in full had been made with respect to
such Mortgage Loan on the date such proceeds were received.
"EXCHANGE CERTIFICATION" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a
holder of an interest in a Regulation S Global Certificate or a Rule
144A-IAI Global Certificate, as applicable.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"FHLMC AUDIT PROGRAM" shall have the meaning set forth in Section
8.13.
"FINAL CERTIFICATION" has the meaning set forth in Section 2.2.
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
preliminary statement hereto.
21
"FINAL RATED DISTRIBUTION DATE" means with respect to each
rated Class of Certificates, the date shown on the chart in the
Preliminary Statement.
"FINAL RECOVERY DETERMINATION" means a determination with
respect to any Mortgage Loan or Specially Serviced Mortgage Loan by the
Servicer in consultation with the Special Servicer in respect of any
Defaulted Mortgage Loan (including a Mortgage Loan that became an REO
Property), in each case, in its good faith discretion, consistent with the
Servicing Standard that substantially all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds, Purchase Proceeds and other payments or
recoveries which the Servicer or the Special Servicer, as the case may be,
expects to be finally recoverable on such Mortgage Loan, without regard to
any obligation of the Servicer, the Trustee or the Fiscal Agent, as the
case may be, to make payments from its own funds pursuant to Article IV
hereof, have been recovered. The Special Servicer shall be required to
provide the Servicer with prompt written notice of any Final Recovery
Determination with respect to any Specially Serviced Mortgage Loan upon
making such determination. The Servicer shall notify the Trustee and the
Paying Agent of such determination and the Paying Agent shall deliver a
copy of such notice to each Rating Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of
rated Certificates, the Distribution Date on which such Class will be paid
in full assuming that timely payments will be made on the Mortgage Loans
in accordance with their terms.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking association
organized under the laws of the Netherlands and its permitted successors
and assigns.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in
Section 4.7 hereof.
"FITCH IBCA" means Fitch IBCA Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"HOLDER" means the Person in whose name a Certificate is registered
on the Certificate Register.
"INDEPENDENT" means, when used with respect to any
Accountants, a Person who is "independent" within the meaning of Rule
2-01(B) of the Securities and Exchange Commission's Regulation S-X.
Independent means, when used with respect to any other Person, a Person
who (A) is in fact independent of another specified Person and any
Affiliate of such other Person, (B) does not have any material direct or
indirect financial interest in such other Person or any Affiliate of such
other Person, (C) is not connected with such other Person or any Affiliate
of such other Person as an officer, employee, promoter, underwriter,
trustee, partner,
22
director or Person performing similar functions and (D) is not a member of
the immediate family of a Person defined in clause (B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any
Person designated by the Servicer (other than the Servicer, but which may
be an Affiliate of the Servicer) or, (B) that is a Specially Serviced
Mortgage Loan, any Person designated by the Special Servicer that would be
an "independent contractor" with respect to the applicable REMIC Pool
within the meaning of Section 856(d)(3) of the Code if such REMIC Pool
were a real estate investment trust (except that the ownership test set
forth in such Section shall be considered to be met by any Person that
owns, directly or indirectly, 35% or more of the Aggregate Certificate
Balance or Notional Amount, as the case may be, of any Class of the
Certificates (other than the Class R-III Certificates), a Percentage
Interest of 35% or more in the Class R-III Certificates or such other
interest in any Class of the Certificates or of the applicable REMIC Pool
as is set forth in an Opinion of Counsel, which shall be at no expense to
the Trustee or the Trust) so long as such REMIC Pool does not receive or
derive any income from such Person and provided that the relationship
between such Person and such REMIC Pool is at arm's length all within the
meaning of Treasury Regulation Section 1.856 - 4(b)(5) or (ii) any other
Person (including the Servicer or the Special Servicer) upon receipt by
the Trustee of an Opinion of Counsel, which shall be at the expense of the
Person delivering such opinion to the Trustee, to the effect that the
taking of any action in respect of any REO Property by such Person,
subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such
REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (determined without regard to
the exception applicable for purposes of Section 860D(a) of the Code), or
cause any income realized in respect of such REO Property to fail to
qualify as Rents from Real Property.
"INDIRECT PARTICIPANTS" means entities, such as banks,
brokers, dealers and trust companies, that clear through or maintain a
custodial relationship with a Participant, either directly or indirectly.
"INITIAL CERTIFICATION" has the meaning set forth in Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on
the Mortgage Loans from the Cut-Off Date to and excluding the Closing
Date.
"INSPECTION REPORT" means the report delivered by the Servicer
or the Special Servicer, as the case may be, substantially in the form of
Exhibit L hereto.
"INSTITUTIONAL ACCREDITED INVESTOR" shall mean an
institutional accredited investor qualifying pursuant to Rule 501(a)(1),
(2), (3) or (7) of Regulation D of the 1933 Act.
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, comprehensive general liability
insurance policy, business interruption insurance policy or title
insurance policy relating to the Mortgage Loans or the Mortgaged
Properties in effect as of the Closing Date or thereafter during the term
of this Agreement.
23
"INSURANCE PROCEEDS" means amounts paid by the insurer under
any Insurance Policy, other than amounts required to be paid over to the
Mortgagor pursuant to law, the related Mortgage Loan or the Servicing
Standard and with respect to the Mortgaged Property securing the Related
Trust Fund Mortgage Loan and the Pari Passu Loan, any portion of such
amounts allocable to the Pari Passu Loan.
"INTEREST" means a REMIC I Interest or a REMIC II Interest, as
applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date,
with respect to all Classes of Certificates and Interests (other than the
Residual Certificates), the calendar month preceding such Distribution
Date.
"INTEREST RESERVE SUB-ACCOUNT" means an administrative sub-account
of the Certificate Account.
"INTEREST RESERVE AMOUNT" means all amounts deposited into the
Interest Reserve Sub-account pursuant to Section 5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which bear
interest on an actual/360 day basis.
"INTERESTED PERSON" means, as of any date of determination,
the Servicer, the Special Servicer, the Depositor, with respect to any
Mortgage Loan, the holder of any related Junior Indebtedness, a holder of
50% or more of the Controlling Class, the Operating Adviser, any
Independent Contractor engaged by the Servicer or the Special Servicer
pursuant to this Agreement, or any Person actually known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"INVESTOR" means any purchaser of a Certificate.
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor
that is secured by a lien on the related Mortgaged Property that is junior
in right of payment to the lien of the Mortgage securing the related
Mortgage Note.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan,
all amounts received during any Collection Period, whether as late
payments or as Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds, Purchase Proceeds or otherwise, that represent payments or
collections of Scheduled Payments due but delinquent for a previous
Collection Period and not
previously recovered.
"LATE FEES" shall mean a fee payable to the Servicer or the
Special Servicer, as the case may be, to the extent actually collected
from the Mortgagor as provided in the related Mortgage Loan in connection
with a late payment made by such Mortgagor.
"LIQUIDATION EXPENSES" means reasonable and direct expenses
incurred by the Special Servicer on behalf of the Trust in connection with
the enforcement and liquidation of any Specially Serviced Mortgage Loan or
REO Property acquired in respect thereof including,
24
without limitation, reasonable legal fees and expenses, committee or
referee fees, property manager fees, and, if applicable, brokerage
commissions and conveyance taxes for such Specially Serviced Mortgage
Loan. All Liquidation Expenses relating to enforcement and disposition of
the Specially Serviced Mortgage Loan shall be paid (i) out of income from
the related REO Property, to the extent available or (ii) advanced by the
Servicer, subject to Section 4.4 hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0%
and (y) the Liquidation Proceeds received in connection with a Specially
Serviced Mortgage Loan or REO Property (other than Liquidation Proceeds
received in connection with the Pari Passu Loan).
"LIQUIDATION PROCEEDS" means proceeds from the sale or
liquidation of a Mortgage Loan or related REO Property (including any
Recoveries), net of Liquidation Expenses and any related Advances and
interest thereon and with respect to the sale or liquidation of any REO
Property related to the Related Trust Fund Mortgage Loan and the Pari
Passu Loan, any portion of such amounts allocable to the Pari Passu Loan.
"LIQUIDATION REALIZED LOSS" means, with respect to each
Mortgage Loan or REO Property, as the case may be, as to which a Cash
Liquidation or REO Disposition has occurred, an amount equal to the sum,
without duplication, of (A) the Principal Balance of the Mortgage Loan (or
deemed Principal Balance, in the case of an REO Mortgage Loan) as of the
date of the Cash Liquidation or REO Disposition, plus (B) unpaid interest
and interest accrued thereon at the applicable Mortgage Rate, plus (C) any
expenses incurred in connection with such Mortgage Loan that are
reimbursable to any Person, other than amounts previously treated as
Expense Losses or included in the definition of Liquidation Expenses minus
the sum of (i) REO Income applied as recoveries of principal or interest
on the related Mortgage Loan or REO Property, and (ii) Liquidation
Proceeds received during the Collection Period in which such Cash
Liquidation or REO Disposition occurred. REO Income and Liquidation
Proceeds shall be applied first against any Expense Losses (to the extent
not included in the definition of Liquidation Expenses) for such Mortgage
Loan, the unpaid interest on the Mortgage Loan, calculated as described in
clause (B) above, and then against the principal balance of such Mortgage
Loan, calculated as described in clause (A) above.
"LOAN PERIODIC UPDATE FILE" means a file prepared by the
Servicer or, with respect to Specially Serviced Loans, the Special
Servicer containing substantially the information specified in the form of
"loan periodic update file" produced by the CMSA. The form of such report
is specified by the CMSA and can be accessed on the CMSA internet website
at xxx.xxxx.xxx.
"LOAN SETUP FILE" means a file prepared by the Servicer
containing substantially the information specified in the form of "loan
setup file" produced by the CMSA. The form of such report is specified by
the CMSA and can be accessed on the CMSA internet website at xxx.xxxx.xxx.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a
Mortgage Loan, the fraction, expressed as a percentage, the numerator of
which is the principal balance of such
25
Mortgage Loan at the date of determination and the denominator of which is
the value of the Mortgaged Property as shown on the most recent Appraisal
or valuation of the Mortgaged Property which is available as of such date.
"LOCK-BOX ACCOUNT" shall have the meaning set forth in Section
8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan,
any lock-box agreement relating to such Mortgage Loan among the related
Mortgagor, a depositary institution and the Servicer pursuant to which a
Lock-Box Account is created.
"LOSSES" has the meaning set forth in Section 12.4.
"MATURITY DATE" means, with respect to any Mortgage Loan as of
any date of determination, the date on which the last payment of principal
is due and payable under the related Mortgage Note, after taking into
account all Principal Prepayments received and any Deficient Valuation,
Debt Service Reduction Amount or modification of the Mortgage Loan
occurring prior to such date of determination, but without giving effect
to (i) any acceleration of the principal of such Mortgage Loan or (ii) any
grace period permitted by the related Mortgage Note.
"MODIFICATION FEE" means a fee, if any, collected from a
Mortgagor by the Servicer in connection with a modification of any
Mortgage Loan other than a Specially Serviced Mortgage Loan or collected
by the Special Servicer in connection with the modification of a Specially
Serviced Mortgage Loan.
"MODIFICATION LOSS" means (i) a decrease in the principal
balance of a Mortgage Loan as a result of a modification thereof in
accordance with the terms hereof, (ii) any expenses connected with such
modification, to the extent (x) reimbursable to the Trustee, the Special
Servicer or the Servicer and (y) not recovered from the Mortgagor or (iii)
in the case of a modification of a Mortgage Loan that reduces the Mortgage
Rate thereof, the excess, on each Due Date, of the amount of interest that
would have accrued at a rate equal to the original Mortgage Rate, over
interest that actually accrued on such Mortgage Loan during the preceding
Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan, the
Maturity Date, Mortgage Rate, principal balance, amortization term or
payment frequency thereof or any provision thereof requiring the payment
of a Yield Maintenance Charge in connection with a principal prepayment
(and shall not include late fees or default interest provisions).
"MONTHLY CERTIFICATEHOLDER REPORT" means a report provided
pursuant to Section 5.4 by the Paying Agent monthly as of the related
Determination Date generally in the form and substance of Exhibit M, which
sets forth, to the extent applicable: (i) the amount, if any, of such
distributions to the holders of each Class of Principal Balance
Certificates applied to reduce the respective Certificate Balances
thereof; (ii) the amount of such distribution to holders of each Class of
Certificates allocable to (A) interest accrued at the respective
Pass-Through Rates, less any Net Aggregate Prepayment Interest Shortfalls
and (B) Yield Maintenance
26
Charges; (iii) the number of outstanding Mortgage Loans and the aggregate
Principal Balance and Scheduled Principal Balance of the Mortgage Loans at
the close of business on such Distribution Date; (iv) the number and
aggregate Scheduled Principal Balance of Mortgage Loans (A) delinquent
30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, (D)
as to which foreclosure proceedings have been commenced, or (E) as to
which bankruptcy proceedings have been commenced; (v) with respect to any
REO Property included in the Trust, the Principal Balance of the related
Mortgage Loan as of the date of acquisition of the REO Property and the
Scheduled Principal Balance thereof; (vi) as of the related Determination
Date (A) as to any REO Property sold during the related Collection Period,
the date of the related determination by the Special Servicer or Servicer,
as the case may be, that it has recovered all payments which it expects to
be finally recoverable and the amount of the proceeds of such sale
deposited into the Certificate Account, and (B) the aggregate amount of
other revenues collected by the Special Servicer with respect to each REO
Property during the related Collection Period and credited to the
Certificate Account, in each case identifying such REO Property by the
loan number of the related Mortgage Loan; (vii) the aggregate Certificate
Balance or Notional Amount, as the case may be, of each Class of
Certificates before and after giving effect to the distribution made on
such Distribution Date; (viii) the aggregate amount of Principal
Prepayments made during the related Collection Period; (ix) the
Pass-Through Rate applicable to each Class of Certificates for such
Distribution Date; (x) the aggregate amount of servicing fees paid to the
Servicer and the Special Servicer; (xi) the amount of Unpaid Interest,
Realized Losses or Expense Losses, if any, incurred with respect to the
Mortgage Loans, including an itemization of any Additional Trust Expenses
and other reimbursements to the Servicer or Special Servicer; (xii) the
aggregate amount of Servicing Advances and P&I Advances outstanding that
have been made by the Servicer, the Trustee and the Fiscal Agent,
separately stated, and the aggregate amount of Servicing Advances and P&I
Advances made by the 99-C1 Servicer; and (xiii) the amount of any
Appraisal Reductions effected during the related Collection Period on a
loan-by-loan basis and the total Appraisal Reductions in effect as of such
Distribution Date. In the case of information furnished pursuant to
subclauses (i), (ii) and (xi) above, the amounts shall be expressed in the
aggregate and as a dollar amount per $1,000 of original principal amount
of the Certificates for all Certificates of each applicable Class.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) each 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 Seller, and further endorsed (at the direction of the
Depositor given pursuant to the Mortgage Loan Purchase Agreement), on its
face or by allonge attached thereto, without recourse, to the order of the
Trustee in substantially the following form: "Pay to the order of LaSalle
Bank National Association, as Trustee for the registered Holders of Bear
Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates, Series 2000-WF1, without recourse,
representation or warranty, express or implied" or if the original
Mortgage Note is not included therein, then a lost note
27
affidavit containing a customary indemnification provision with a copy of
the Mortgage Note attached thereto;
(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 Seller, in each case with evidence of recording indicated
thereon; or certified by a title insurance company or escrow company to be
a true copy thereof; provided that if such original Mortgage cannot be
delivered prior to the Closing Date because of a delay caused by the
public recording office where such original Mortgage has been delivered
for recordation or because the original Mortgage has been lost, the Seller
is obligated pursuant to the applicable Mortgage Loan Purchase Agreement
to deliver or cause to be delivered to the Trustee a true and correct copy
of such Mortgage together with, in the case of a delay caused by a public
recording office, an Officer's Certificate of the Seller stating that such
original Mortgage has been sent to the appropriate public recording
official for recordation, or, in the case of an original Mortgage having
been lost after recordation, a copy of such Mortgage certified by the
appropriate public recording office where such Mortgage is recorded to be
a true and complete copy of such original Mortgage, or in the case of an
original blanket intervening Assignment retained by the Seller, a copy
thereof certified by the Seller or, if any original intervening Assignment
has not been returned from the applicable public recording office or has
been lost, the Seller is obligated pursuant to the applicable Mortgage
Loan Purchase Agreement to deliver to the Trustee a true and correct copy
of such Assignment together with, in the case of a delay caused by a
public recording office, an Officer's Certificate of the Seller stating
that such original Assignment has been sent to the appropriate public
recording official for recordation, or, in the case of an original
Assignment having been lost after recordation, a copy of such Assignment
certified by the appropriate public recording office where such Assignment
is recorded to be a true and complete copy of such original Assignment;
(iii) an original assignment of the Mortgage, in recordable
form, to "LaSalle Bank National Association, as Trustee for the registered
Holders of Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 2000-WF1";
(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 Seller, in
each case with evidence of recording thereon; or, if any original
Assignment of Leases has not been returned from the applicable public
recording office or has been lost, the Seller is obligated pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver or cause to be
delivered to the Trustee a true and correct copy of such Assignment of
Leases together with, in the case of a delay caused by a public recording
office, an Officer's Certificate of the Seller stating that such original
Assignment of Leases has been sent to the appropriate public recording
official for recordation, or, in the case of an original Assignment of
Leases having been lost after recordation, a copy of such Assignment of
Leases certified by the appropriate public recording office where such
Assignment of Leases is recorded to be a true and complete copy of such
original Assignment of Leases;
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(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), in recordable
form, to "LaSalle Bank National Association, as Trustee for the registered
Holders of Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 2000-WF1";
(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 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, to "LaSalle Bank National Association, as Trustee for the registered
Holders of Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 2000-WF1";
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, and all Money
Term or otherwise material modifications, 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 effective as of the date of the recordation of 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 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 pro forma title insurance
policy, dated as of the date on which the related Mortgage Loan was
funded, with the original title insurance policy to follow within 180 days
of the Closing Date or a preliminary title report with an original title
insurance policy to follow within 180 days of the Closing Date;
(x) the original or a copy of any guaranty of the obligations
of the Mortgagor under the Mortgage Loan;
(xi) all UCC Financing Statements, assignments thereof and
continuation statements, or copies thereof, 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,
any Mortgage Note or other document or instrument referred to above was
not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loan with Junior
Indebtedness, a subordination agreement, pursuant to which such Junior
Indebtedness is
29
subordinated to such Mortgage Loan and with respect to the Pari Passu
Loan, a copy of the Pari Passu Intercreditor Agreement and a copy of the
99-C1 Pooling and Servicing Agreement;
(xiv) copies of ground leases related to any Mortgage Loan
where the Mortgagor is the lessee under such lease and there is a lien in
favor of the mortgagee in such lease;
(xv) a survey of the related Mortgaged Property;
(xvi) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xvii) an original or copy of any lock-box agreements,
intercreditor agreements and management agreements related to any Mortgage
Loan;
(xviii) an original or copy of any environmental reports and
environmental indemnification agreements related to any Mortgage Loan; and
(xix) an original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, together with
the original supporting documentation evidencing a beneficial transfer, in
favor of "LaSalle Bank National Association, as Trustee for the registered
Holders of Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 2000-WF1";
provided that whenever the term "Mortgage File" is used to refer to
documents actually received by the Trustee or a Custodian on its behalf,
such terms shall not be deemed to include such documents required to be
included therein unless they are actually so received.
With respect to the Pari Passu Loan, the preceding document
delivery requirements will be met by the delivery by the Depositor of
copies of the documents specified above (other than the Mortgage Notes
evidencing the Pari Passu Loan, with respect to each of which the original
shall be required), including a copy of the Pari Passu Mortgage.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage,
and all amendments and modifications thereof, identified on the Mortgage
Loan Schedule, as amended from time to time, and conveyed, transferred,
sold, assigned to or deposited with the Trustee pursuant to Section 2.1 or
Section 2.3, and Mortgage Loan shall also include any Defeasance Loan and
the Pari Passu Loan but shall not include the Related Trust Fund Mortgage
Loan.
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan
Purchase Agreement I, the Mortgage Loan Purchase Agreement II or the
Mortgage Loan Purchase Agreement III, as the case may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain
Mortgage Loan Purchase Agreement dated as of February 1, 2000 between BSF
and the Depositor with respect to the BSF Loans.
30
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain
Mortgage Loan Purchase Agreement between Xxxxx Fargo and the Depositor
dated as of February 1, 2000 with respect to the Xxxxx Fargo Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT III" means that certain
Mortgage Loan Purchase Agreement dated as of February 1, 2000 between MSMC
and the Depositor with respect to the MSMC Loans.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively
the schedule attached hereto as Schedule I, which identifies each BSF
Loan, and the schedule attached hereto as Schedule II, which identifies
each Xxxxx Fargo Loan, and the schedule attached hereto as Schedule III,
which identifies each MSMC Loan, as such schedules may be amended from
time to time pursuant to Section 2.3.
The following items of information (to the extent applicable)
will be provided in the Mortgage Loan Schedule with respect to each
Mortgage Loan: loan number; loan name; property address; original balance,
cut-off date balance; mortgage rate; interest accrual method;
Administrative Cost Rate; Net Mortgage Rate; stated original term to
maturity; remaining term to maturity; interest only period (months); first
payment date; Maturity Date; monthly scheduled principal and interest
payments; debt service coverage ratio; appraised value; cut-off date
loan-to-value ratio; effective lockout period; expected lockout end date;
call protection; call protection end date; fee or leasehold interest; lien
position; Anticipated Repayment Date (if applicable); and Mortgage Rate
following Anticipated Repayment Date (if applicable).
"MORTGAGE NOTE" means the note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage
Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan, the per
annum rate stated in the Mortgage Loan documents at which interest accrues
on such Mortgage Loan (regardless of the method of accrual of interest).
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any date
of determination, the holder of the related Mortgage Note as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"MSMC" has the meaning assigned in the Preliminary Statement hereto.
"MSMC LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to Mortgage Loan Purchase Agreement III and shown
on Schedule III hereto.
"NET AGGREGATE BALLOON INTEREST SHORTFALL" means for any
Distribution Date, the excess, if any, of aggregate Balloon Interest
Shortfalls over the aggregate Balloon Interest Excesses for the related
Collection Period.
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"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, (i) with respect to all Mortgage Loans which are not
Specially Serviced Mortgage Loans, the excess, if any, of aggregate
Prepayment Interest Shortfalls for such Mortgage Loans over the sum of (A)
the portion of the aggregate Servicing Fee for the related Collection
Period calculated in respect of all such Mortgage Loans (including REO
Mortgage Loans) less the portion thereof payable to the Sub-Servicers as
Sub-Servicing Fees and (B) the aggregate Prepayment Interest Excesses for
such Collection Period for all Mortgage Loans which are not Specially
Serviced Mortgage Loans, and (ii) with respect to all Specially Serviced
Mortgage Loans on which there have been voluntary Principal Prepayments
(not from Liquidation Proceeds or from modifications to Specially Serviced
Mortgage Loans), the excess, if any, of aggregate Prepayment Interest
Shortfalls for such Mortgage Loans over the sum of (A) the portion of the
aggregate Special Servicing Fee for the related Collection Period
calculated in respect of all Specially Serviced Mortgage Loans (including
REO Mortgage Loans) and (B) the aggregate Prepayment Interest Excesses for
such Collection Period for all Specially Serviced Mortgage Loans
(including REO Mortgage Loans).
"NEW LEASE" means any lease of any REO Property entered into
on behalf of the Trust, including any lease renewed or extended on behalf
of the Trust if the Trust has the right to renegotiate the terms of such
lease.
"NEW YORK PRESENTING OFFICE" means an office, if any, of an
agent of the Trustee, the Certificate Registrar or the Paying Agent, as
the Trustee, the Certificate Registrar or the Paying Agent may designate
from time to time by written notice to the Depositor and the
Certificateholders.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"99-C1 POOLING AND SERVICING AGREEMENT" means the pooling and
servicing agreement dated as of February 1, 1999 by and among the
Depositor, the 99-C1 Fiscal Agent, the 99-C1 Servicer, the 99-C1 Special
Servicer, and the 99-C1 Trustee, pursuant to which the Depositor issued
its Commercial Mortgage Pass-Through Certificates, Series 1999-C1.
"99-C1 FISCAL AGENT" means the "fiscal agent" under the 99-C1
Pooling and Servicing Agreement, which as of the date hereof is ABN AMRO
Bank N.V.
"99-C1 SERVICER" means the "servicer" under the 99-C1 Pooling
and Servicing Agreement, which as of the date hereof is GE Capital Loan
Services, Inc.
"99-C1 SPECIAL SERVICER" means the "special servicer" under
the 99-C1 Pooling and Servicing Agreement, which as of the date hereof is
GE Capital Realty Group, Inc.
"99-C1 TRUSTEE" means the "trustee" under the 99-C1 Pooling
and Servicing Agreement, which as of the date hereof is LaSalle Bank
National Association (formerly known as LaSalle National Bank).
32
"NONDISQUALIFICATION OPINION" means a written Opinion of
Counsel to the effect that a contemplated action will neither cause any
REMIC Pool to fail to qualify as a REMIC at any time that any Certificates
are outstanding nor cause a "prohibited transaction," "prohibited
contribution" or any other tax to be imposed on any REMIC Pool or the
Trust.
"NONRECOVERABLE ADVANCE" means any of the following: (i) Pari
Passu Loan Nonrecoverable P&I Advances (including interest accrued thereon
at the Advance Rate); (ii) Pari Passu Loan Nonrecoverable Servicing
Advances (including interest accrued thereon at the Advance Rate); and
(iii) the portion of any Advance (including interest accrued thereon at
the Advance Rate) previously made or proposed to be made by the Servicer,
the Trustee or the Fiscal Agent that, in its sole discretion, exercised in
good faith and, with respect to the Servicer, in accordance with the
Servicing Standard, that will not or, in the case of a current
delinquency, would not be, ultimately recoverable, from Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase Proceeds
from any collections with respect to the related Mortgage Loan or REO
Property, as evidenced by an Officer's Certificate delivered pursuant to
Section 4.4. Such Officer's Certificate shall be delivered to the Trustee
(upon which the Trustee may conclusively rely) or to the Depositor (if the
Trustee or the Fiscal Agent is delivering such Officer's Certificate) and
(in either case) to the Special Servicer and the Paying Agent in the time
periods as specified in Section 4.4 and shall include the information and
reports set forth in Section 4.4. In determining whether an Advance with
respect to any Mortgage Loan will be recoverable, the Servicer, the
Trustee or the Fiscal Agent, as applicable, shall take into account
amounts that may be realized on the related Mortgaged Property in its "as
is" or then current condition and occupancy. Absent bad faith or breach of
the Servicing Standard, the Servicer's determination as to the
recoverability of any Advance shall be conclusive and binding on the
Certificateholders and may, in all cases, be relied on by the Trustee and
the Fiscal Agent. Absent bad faith or breach of the servicing standard
under the 99-C1 Pooling and Servicing Agreement, the 99-C1 Servicer's
determination as to the recoverability of any advance made with respect to
the Pari Passu Loan pursuant to the 99-C1 Pooling and Servicing Agreement
shall be conclusive and binding on the Certificateholders and may, in all
cases, be relied on but not binding upon the Trustee, the Fiscal Agent and
the Servicer.
"NON-REGISTERED CERTIFICATE" means unless and until registered
under the Securities Act, any Class G, Class H, Class I, Class J, Class K,
Class L, Class M or Residual Certificate.
"NOTIONAL AMOUNT" means, as of any date of determination: (i)
with respect to all of the Class X Certificates as a Class, the Class X
Notional Amount as of such date of determination; and (ii) with respect to
any Class X Certificate, the product of the Percentage Interest evidenced
by such Certificate and the Class X Notional Amount as of such date of
determination.
"OFFICER'S CERTIFICATE" means (w) in the case of the
Depositor, a certificate signed by one or more of the Chairman of the
Board, any Vice Chairman, the President, or any Senior Vice President,
Vice President or Assistant Vice President, and by one or more of the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Depositor, or (x) in the case of the Servicer and the
Special Servicer, any of the officers referred to above or an
33
employee thereof designated as a Servicing Officer or Special Servicing
Officer pursuant to this Agreement, (y) in the case of the Trustee or the
Fiscal Agent, a certificate signed by a Responsible Officer and (z) in the
case of the Paying Agent, a certificate signed by any officer assigned to
the Corporate Trust Services Group of the Paying Agent, each with specific
responsibilities for the matters contemplated by this Agreement.
"OPERATING ADVISER" shall have the meaning specified in Section
9.37(a).
"OPERATING ADVISER VOTES" shall mean the votes cast at a duly
called meeting by the Holders of the Controlling Class to elect an
Operating Adviser.
"OPERATING STATEMENT ANALYSIS REPORT" means a report prepared
by the Servicer containing substantially the information specified in the
form of "operating statement analysis report" produced by the CMSA (in
CMSA format as in effect as of the date hereof).
"OPINION OF COUNSEL" means a written opinion of counsel
addressed to the Trustee (and/or other addressee, as the case may be),
reasonably acceptable in form and substance to the Trustee (and/or other
addressee, as the case may be), and who may be in-house or outside counsel
to the party required to deliver such opinion but who, in the good faith
judgment of the Trustee, is Independent outside counsel knowledgeable of
the issues occurring in the practice of securitization with respect to any
such opinion of counsel concerning the taxation, or status as a REMIC for
tax purposes, of the Trust or any REMIC Pool.
"OWNERSHIP INTEREST" means, as to any Certificate, any
ownership or security interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or
beneficial, as owner or as pledgee.
"P&I ADVANCE" shall mean, (i) with respect to any Mortgage
Loan or Specially Serviced Mortgage Loan as to which all or a portion of
the Scheduled Payment (other than a Balloon Payment) due during the
related Collection Period was not received by the Servicer as of the
related Determination Date, the portion of such Scheduled Payment not
received; (ii) with respect to any Balloon Mortgage Loan (including any
REO Property as to which the related Mortgage Loan provided for a Balloon
Payment) as to which a Balloon Payment was due during or prior to the
related Collection Period but was delinquent, in whole or in part, as of
the related Determination Date, an amount equal to the excess, if any, of
the Assumed Scheduled Payment for such Balloon Mortgage Loan for the
related Collection Period, over any Late Collections received in respect
of such Balloon Payment during such Collection Period; and (iii) with
respect to each REO Property, an amount equal to the excess, if any, of
the Assumed Scheduled Payment for the Mortgage Loan related to such REO
Property during the related Collection Period, over remittances of REO
Income to the Servicer by the Special Servicer, reduced by any amounts
required to be paid as taxes on such REO Income (including taxes imposed
pursuant to Section 860G(c) of the Code); provided, however, that the
interest portion of any Scheduled Payment or Assumed Scheduled Payment
shall be advanced at a per annum rate equal to the sum of the REMIC I Net
Mortgage Rate relating to such Mortgage Loan or Mortgage Loan relating to
such REO Property and the Trustee Fee Rate, such that the Scheduled
Payment or Assumed Scheduled Payment to be advanced as a P&I Advance shall
be net of the Servicing Fee; and provided,
34
further, that the Scheduled Payment or Assumed Scheduled Payment for any
Mortgage Loan which has been modified shall be calculated based on its
terms as modified and provided, further, that the amount of any P&I
Advance with respect to a Mortgage Loan as to which there has been an
Appraisal Reduction will be an amount equal to the product of (i) the
amount required to be advanced without giving effect to this proviso and
(ii) a fraction, the numerator of which is the Principal Balance of such
Mortgage Loan as of the immediately preceding Determination Date less any
Appraisal Reduction and the denominator of which is the Principal Balance
of the Mortgage Loan as of such Determination Date. All P&I Advances for
any Mortgage Loans that have been modified shall be calculated on the
basis of their terms as modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan
or REO Property, the amount of the P&I Advance for each Mortgage Loan
computed for any Distribution Date.
"PARI PASSU INTERCREDITOR AGREEMENT" means that certain
intercreditor agreement dated August 7, 1998 by and between BSF and the
initial holder of the Related Trust Fund Mortgage Loan relating to the
relative rights of the holder of the Pari Passu Loan and the holder of
such Related Trust Fund Mortgage Loan, as amended by Amendment No. 1
thereto dated as of January 28, 1999, as the same may be further amended
from time to time.
"PARI PASSU LOAN" means the Mortgage Loan designated as 25138
on the Mortgage Loan Schedule and which is secured on a pari passu basis
with the Related Trust Fund Mortgage Loan pursuant to the Pari Passu
Mortgage.
"PARI PASSU LOAN SERVICING FEE RATE" means the "Servicing Fee
Rate" applicable to the Pari Passu Loan as defined in the 99-C1 Pooling
and Servicing Agreement.
"PARI PASSU LOAN NONRECOVERABLE P&I ADVANCE" means any
"Nonrecoverable P&I Advance" (as defined in the 99-C1 Pooling and
Servicing Agreement) made with respect to the Pari Passu Loan pursuant to
and in accordance with the 99-C1 Pooling and Servicing Agreement.
"PARI PASSU LOAN NONRECOVERABLE SERVICING ADVANCE" means any
"Nonrecoverable Servicing Advance" (as defined in the 99-C1 Pooling and
Servicing Agreement) made with respect to the Pari Passu Loan pursuant to
and in accordance with the 99-C1 Pooling and Servicing Agreement; provided
that if the 99-C1 Servicer shall have made a "Servicing Advance" (as
defined in the 99-C1 Pooling and Servicing Agreement) in the nature of an
expenditure benefiting the related Mortgaged Property generally, the
portion thereof attributable to the Pari Passu Loan shall be determined
based on the outstanding balances of the Pari Passu Loan and the Related
Trust Fund Mortgage Loan on the date such advance was made.
"PARI PASSU MORTGAGE" means the Mortgage securing the Related
Trust Fund Mortgage Loan and the Pari Passu Loan.
"PASS-THROUGH ENTITY" means any of (A) a regulated investment
company described in Section 851 of the Code, a real estate investment
trust described in Section 856 of
35
the Code, a common trust fund or an organization described in Section
1381(a) of the Code, (B) any partnership, trust or estate as such terms
are defined in the Code or (C) any person holding a Class R-I, Class R-II
or Class R-III Certificate as nominee for another person.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" with respect to
any Class of REMIC I Regular Interests, REMIC II Regular Interests or
REMIC Regular Certificates, other than the X Certificates, and the first
Distribution Date, the rate set forth in the Preliminary Statement hereto.
For any Distribution Date occurring thereafter, the Pass-Through Rates for
(i) the REMIC I Regular Interests (other than the REMIC I Regular Interest
X-1) shall equal the REMIC I Net Mortgage Rate on the related Mortgage
Loan for such Distribution Date, (ii) the REMIC II Regular Interests
(other than the REMIC II Regular Interest X-1) shall equal the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (iii) with
respect to the Class X-0, Xxxxx X-0, Class G, Class H, Class I, Class J,
Class K, Class L and Class M Certificates, the lesser of (A) the fixed
rate corresponding to such Class set forth in the Preliminary Statement
hereto and (B) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (iv) the Class X Certificates, the per annum rate equal
to the quotient of the Accrued Certificate Interest thereon for such
Distribution Date and the Class X Notional Amount, (v) the Class B
Certificates, the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date minus 0.130%, (vi) the Class C Certificates, the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date
minus 0.010%, (vii) the Class D, Class E and Class F Certificates, the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date.
"PAYING AGENT" means Norwest Bank Minnesota, National
Association and its successors and assigns.
"PAYING AGENT FEE" means the portion of the Trustee Fee
payable to the Paying Agent, which equals for each calendar month, as to
each Mortgage Loan (including REO Mortgage Loans and Defeasance Loans),
the portion of the Paying Agent Fee Rate applicable to such month
(determined using the same methodology that is applied with respect to the
Mortgage Rate for such Mortgage Loan for such month) multiplied by the
Scheduled Principal Balance of such Mortgage Loan immediately before the
Due Date occurring in such month.
"PAYING AGENT FEE RATE" means 0.0020% per annum.
"PERCENTAGE INTEREST" means with respect to each Class of
Certificates other than the Residual Certificates, the fraction of such
Class evidenced by such Certificate, expressed as a percentage (carried to
four decimal places and rounded, if necessary), the numerator of which is
the Certificate Balance or Notional Amount, as applicable, represented by
such Certificate determined as of the Closing Date (as stated on the face
of such Certificate) and the denominator of which is the aggregate
Certificate Balance or Notional Amount, as applicable, of all of the
Certificates of such Class determined as of the Closing Date. With respect
to each Residual Certificate, the percentage interest in distributions (if
any) to be made with respect to the relevant Class, as stated on the face
of such Certificate.
36
"PERMITTED TRANSFEREE" means any Transferee other than a
Disqualified Organization.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"PHASE I ENVIRONMENTAL REPORT" means a report prepared at the
expense of the Person desiring to contribute such property, by an
Independent Person who regularly conducts environmental site assessments
in accordance with then current standards imposed by institutional
commercial mortgage lenders and who has had not less than five years
experience in such matters which indicates whether such property is in
compliance with applicable Environmental Laws and whether there are any
circumstances present at such property relating to the use, management or
disposal of any hazardous substances, hazardous materials, hazardous
wastes or petroleum based materials for which investigation, testing,
monitoring, containment, clean up or remediation could be required under
any Federal, state or local law or regulation.
"PLACEMENT AGENT" means Bear, Xxxxxxx & Co. Inc.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor regulations
set forth in 29 C.F.R. ss. 2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in
the preliminary statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date
and the related Collection Period, during which a full or partial
Principal Prepayment (or Balloon Payment, if such Balloon Payment is made
not more than 60 days after its original Maturity Date) is made after the
Due Date for such Mortgage Loan through and including the last day of the
Collection Period, the amount of interest that accrues on the Mortgage
Loan from such Due Date to the date such payment was made (net of the
Servicing Fee or Special Servicing Fee and the Trustee Fee), to the extent
collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's
interest on any Mortgage Loan, by reason of a full or partial Principal
Prepayment (including payment of a Balloon Payment not more than 60 days
after its original Maturity Date) made during any Collection Period prior
to the Due Date for such Mortgage Loan in such Collection Period. The
amount of any Prepayment Interest Shortfall shall equal the excess of (A)
the aggregate amount of interest which would have accrued on the Scheduled
Principal Balance of such Mortgage Loan or on such Balloon Payment for the
30 days ending on such Due Date if such Principal Prepayment or Balloon
Payment had not been made (net of the Servicing Fee or Special Servicing
Fee and the Trustee Fee) over (B) the aggregate interest that did so
accrue through the date such payment was made.
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"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan
or REO Mortgage Loan, for purposes of performing calculations with respect
to any Distribution Date, the principal balance of such Mortgage Loan or
the related REO Mortgage Loan outstanding as of the Cut-off Date after
taking into account all principal and interest payments made or due prior
to the Cut-Off Date, reduced (to not less than zero) by (i) any payments
or other collections of amounts allocable to principal on such Mortgage
Loan that have been collected or received during any preceding Collection
Period (excluding amounts due prior to the Cut-Off Date), other than any
Scheduled Payments due in any subsequent Collection Period, and (ii) the
principal portion of any Realized Loss incurred in respect of such
Mortgage Loan during any related Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the
Class A-1, Class A-2, Class 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.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution
Date, the sum of the following amounts: (i) the principal portion of all
Scheduled Payments (other than the principal portion of Balloon Payments)
and any Assumed Scheduled Payments due or deemed due, as the case may be,
in respect of the Mortgage Loans and any REO Mortgage Loans for their
respective Due Dates occurring during the related Collection Period; (ii)
all payments (including Principal Prepayments and the principal portion of
Balloon Payments) and any other collections (including Liquidation
Proceeds (other than the portion thereof, if any, constituting Excess
Liquidation Proceeds), Condemnation Proceeds, Insurance Proceeds, Purchase
Proceeds and REO Income) received on or in respect of the Mortgage Loans
during the related Collection Period and that were identified and applied
by the Servicer as principal thereof, in each case net of any portion of
such payment or other collection that represents a recovery of the
principal portion of any Scheduled Payment (other than a Balloon Payment)
due, or of the principal portion of any Assumed Scheduled Payment deemed
due, in respect of the related Mortgage Loan on a Due Date during or prior
to the related Collection Period and not previously recovered.
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary
payment or collection of principal on a Mortgage Loan which is received or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in advance of its scheduled Due
Date or, in connection with a Balloon Payment, received within 60 days of
the original Maturity Date in connection with such Balloon Payment,
including, without limitation, all proceeds, to the extent allocable to
principal, received from the payment of cash in connection with a
substitution shortfall pursuant to Section 2.3; provided, that the pledge
by a Mortgagor of Defeasance Collateral with respect to a Defeasance Loan
shall not be deemed to be a Principal Prepayment.
"PRIVATE PLACEMENT MEMORANDUM" has the meaning set forth in the
preliminary statement hereto.
"PRIVILEGED PERSON" means (i) any Certificateholder, (ii) each
of the parties hereto, (iii) each of the Rating Agencies, (iv) each of the
Underwriters, (v) any Person identified to the Paying Agent as a
Certificate Owner or prospective purchaser of a Certificate that delivers
38
to the Paying Agent an investor certification (which may be in electronic
form), the form of which is attached hereto as Exhibit K and (vi) any
other Person designated by the Depositor. The Paying Agent shall provide
all Privileged Persons with access to restricted information on the Paying
Agent's Website.
"PROPERTY FILE" means a file in CMSA format (as in effect as
of the date hereof) prepared by the Servicer containing substantially the
information specified in the form of the "property file" produced by the
CMSA. The form of such report is specified by the CMSA and can be accessed
on the CMSA internet website at xxx.xxxx.xxx.
"PROSPECTUS" has the meaning set forth in the preliminary statement
hereto.
"PURCHASE PRICE" means, with respect to the repurchase of a
Mortgage Loan or REO Property pursuant to Article II of this Agreement, a
price equal to the sum of (A) 100% of the unpaid principal balance of such
Mortgage Loan (or deemed principal balance, in the case of an REO
Property), plus (B) accrued but unpaid interest thereon calculated at the
Mortgage Rate to, but not including, the Due Date in the Collection Period
in which such purchase occurs, plus (C) the amount of any expenses related
to such Mortgage Loan or REO Property (including any Servicing Advances,
Advance Interest related to such Mortgage Loan and any Special Servicer
Fees and Liquidation Fees) that are reimbursable to the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent or the 99-C1 Servicer.
"PURCHASE PROCEEDS" means any cash amounts received by the
Servicer in connection with: (i) the repurchase of a Mortgage Loan by a
Seller pursuant to Section 2.3 or (ii) the purchase of the Mortgage Loans
and REO Properties by the Depositor, the Servicer, the Special Servicer or
the holders of the Class R-I Certificates pursuant to Section 10.1(b).
"QIB" means a "qualified institutional buyer," as defined in Rule
144A.
"QUALIFIED BIDDER" means any Person qualified to act as
successor Servicer hereunder pursuant to Section 8.22(b) (including the
requirement set forth in Section 8.22(b) that Rating Agency Confirmation
shall have been obtained from each Rating Agency with respect to such
Person).
"QUALIFIED INSURER" means, (i) with respect to any Mortgage
Loan, an insurance company duly qualified as such under the laws of the
state in which the related Mortgaged Property is located, duly authorized
and licensed in such state to transact the applicable insurance business
and to write the insurance provided, and that has a claim paying ability
rating no lower than two ratings categories (without regard to pluses or
minuses or numerical qualifiers) lower than the highest rating of any
outstanding Class of Certificates from time to time, but in no event lower
than "A" by Fitch IBCA, if rated by Fitch IBCA or if not rated by Fitch
IBCA, then otherwise approved by Fitch IBCA, and "A" by DCR if rated by
DCR or if not rated by DCR, then having a comparable rating from at least
two other nationally recognized statistical rating organizations or
otherwise approved by DCR, and (ii) with respect to an Errors and
Omissions Insurance Policy or Fidelity Bond an insurance company that has
a claim paying ability a rating of no lower than two ratings categories
(without regard to pluses or minuses or numerical
39
qualifiers) lower than the highest rating of any outstanding Class of
Certificates from time to time, but in no event lower than "A" by Fitch
IBCA, if rated by Fitch IBCA or if not rated by Fitch IBCA, then otherwise
approved by Fitch IBCA, and "A" by DCR if rated by DCR or if not rated by
DCR, then having a comparable rating from at least two other nationally
recognized statistical rating organizations or otherwise approved by DCR,
or (iii) in either case, a company not satisfying clause (i) or (ii) but
with respect to which Rating Agency Confirmation is obtained.
"QUALIFIED MORTGAGE" means a Mortgage Loan that is a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code
(but without regard to the rule in Treasury Regulation Section
1.860G-2(f)(2) that treats a defective obligation as a qualified mortgage,
or any substantially similar successor provision) and applicable Treasury
Regulations promulgated pursuant thereto.
"QUALIFYING LEASEHOLD" means a leasehold interest in real
property extending or renewable automatically for a period of at least 10
years beyond the Maturity Date of the related Mortgage Loan.
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan
which, on the date of substitution, (i) has a principal balance, after
deduction of the principal portion of the Scheduled Payment due in the
month of substitution, not in excess of the principal balance of the
Deleted Mortgage Loan; provided, however, that, to the extent that the
principal balance of such Mortgage Loan is less than the principal balance
of the Deleted Mortgage Loan, then such differential in principal amount,
together with interest thereon at the Mortgage Rate on the related
Mortgage Loan from the date as to which interest was last paid through the
last day of the month in which such substitution occurs, shall be paid by
the party effecting such substitution to the Servicer for deposit into the
Certificate Account, and shall be treated as a Principal Prepayment
hereunder; (ii) is accruing interest at a rate of interest at least equal
to that of the Deleted Mortgage Loan; (iii) has a remaining term to stated
maturity not greater than, and not more than two years less than, that of
the Deleted Mortgage Loan; (iv) has an original loan-to-value ratio not
higher than that of the Deleted Mortgage Loan and a current loan-to-value
ratio (equal to the principal balance on the date of substitution divided
by its current Appraised Value) not higher than the current loan-to-value
ratio of the Deleted Mortgage Loan; (v) will comply with all of the
representations and warranties relating to Mortgage Loans set forth
herein, as of the date of substitution; (vi) has a Phase I Environmental
Report relating to the related Mortgaged Property in its Mortgage Files
and such Phase I Environmental Report does not, in the good faith
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard raise material issues that have not been adequately addressed;
(vii) as to which the Trustee has received an Opinion of Counsel, at the
related Seller's expense, that such Mortgage Loan is a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; and (viii) has a Debt Service Coverage Ratio not lower than that of
the Deleted Mortgage Loan as of the Cut-Off Date unless otherwise approved
by the Special Servicer; provided that no Mortgage Loan may have a
Maturity Date after the date three years prior to the Final Rated
Distribution Date, and provided, further, that no such Mortgage Loan shall
be substituted for a Deleted Mortgage Loan unless Rating Agency
Confirmation is obtained. In the event that either one mortgage loan is
substituted for more than one Deleted Mortgage Loan or more than one
40
mortgage loan is substituted for one or more Deleted Mortgage Loans, then
(A) the principal balance referred to in clause (i) above shall be
determined on the basis of aggregate principal balances and (B) the rates
referred to in clauses (ii) above and the remaining term to stated
maturity referred to in clause (iii) above shall be determined on a
weighted average basis. Whenever a Qualifying Substitute Mortgage Loan is
substituted for a Deleted Mortgage Loan pursuant to this Agreement, the
party effecting such substitution shall certify that such Mortgage Loan
meets all of the requirements of this definition and shall send such
certification to the Trustee, which shall deliver a copy of such
certification to the Special Servicer promptly, and in any event within
five Business Days following the Trustee's receipt of such certification.
"RATING AGENCIES" means DCR and Fitch IBCA.
"RATING AGENCY CONFIRMATION" means, with respect to any
matter, confirmation in writing by each Rating Agency that a proposed
action, failure to act, or other event specified herein will not in and of
itself result in the withdrawal, downgrade, or qualification (including
the placement of any rated Certificate on "credit watch" or the
equivalent), as applicable, of the rating assigned by such Rating Agency
to any Class of Certificates then rated by such Rating Agency.
"REALIZED INTEREST LOSS" means (i) in the case of a
Liquidation Realized Loss, the portion of any Liquidation Realized Loss
that exceeds the Realized Principal Loss on the related Mortgage Loan,
(ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in
the case of an Expense Loss, an Expense Loss resulting in any period from
the payment of the Special Servicing Fee and any Expense Losses set forth
in the last sentence of the definition of "Realized Principal Loss" or
(iv) in the case of a Modification Loss, a Modification Loss described in
clause (iii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a
Modification Loss, a Bankruptcy Loss or an Expense Loss. Realized Losses
on a Mortgage Loan are allocated first to the principal balance of, and
then to interest on such Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means (i) in the case of a
Liquidation Realized Loss, the amount of such Realized Loss, to the extent
that it does not exceed the principal balance of the Mortgage Loan (or
deemed principal balance, in the case of REO Property), (ii) in the case
of a Modification Loss, the amount of such Modification Loss described in
clause (i) and (ii) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to the
reduction in the principal balance of the related Mortgage Loan, and (iv)
in the case of an Expense Loss, the portion thereof not treated as a
Realized Interest Loss. Notwithstanding clause (iv) of the preceding
sentence, to the extent that Expense Losses (exclusive of Expense Losses
resulting from payment of the Special Servicing Fee) exceed amounts
received with respect to the Mortgage Loans that were identified as
allocable to principal, such excess shall be treated as a Realized
Interest Loss.
41
"RECORD DATE" means, for each Distribution Date and each Class
of Certificates, the close of business on the last Business Day of the
month immediately preceding the month in which such Distribution Date
occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan or REO Property following the
period in which a Final Recovery Determination occurs.
"REGISTERED CERTIFICATES" means, collectively, the Class X,
Class X-0, Xxxxx X-0, Class B, Class C, Class D, Class E and Class F
Certificates.
"REGULATION S" means Regulation S under the 1933 Act.
"REGULATION S CERTIFICATE" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global
Certificate is not a U.S. Person (as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S
Permanent Global Certificates together with the Regulation S Temporary
Global Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with
respect to any Class of Certificates offered and sold outside of the
United States in reliance on Regulation S, a single temporary global
Certificate, in definitive, fully registered form without interest
coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced
Mortgage Loan with respect to which (i) three consecutive Scheduled
Payments have been made (in the case of any such Mortgage Loan that was
modified, based on the modified terms), (ii) no other Servicing Transfer
Event has occurred and is continuing (or with respect to determining
whether a Required Appraisal Loan is a Rehabilitated Mortgage Loan for
applying Appraisal Reductions, no other Appraisal Event has occurred and
is continuing) and (iii) the Trust has been reimbursed for all costs
incurred as a result of the occurrence of a Servicing Transfer Event or
such amounts have been forgiven.
"RELATED TRUST FUND MORTGAGE LOAN" means the mortgage loan
secured by the Pari Passu Mortgage on a pari passu basis with the Pari
Passu Loan. The Related Trust Fund Mortgage Loan is not a Mortgage Loan.
The Related Trust Fund Mortgage Loan is included in a trust fund created
in connection with issuance of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 1999-C1.
"RELEASE DATE" means the date 40 days after the later of (i)
the commencement of the offering of the Certificates and (ii) the Closing
Date.
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"REMIC" means a real estate mortgage investment conduit within
the meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of
the Mortgage Loans (other than any Excess Interest payable thereon), such
amounts as shall from time to time be held in the Certificate Account and
the Distribution Account (other than the portion thereof constituting the
Excess Interest Sub-account), the Insurance Policies and any REO
Properties, for which a REMIC election has been made pursuant to Section
12.1(a) hereof. Excess Interest and the Excess Interest Sub-account shall
constitute assets of the Trust but shall not be a part of any REMIC Pool
formed hereunder.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular
Interests and the Class R-I Certificates.
"REMIC I NET MORTGAGE RATE" means, as to any REMIC I Regular
Interest, a rate per annum equal to the Mortgage Rate (exclusive of any
increase in the Mortgage Rate of an ARD Loan resulting from its failure to
repay on its Anticipated Repayment Date) for the related Mortgage Loan as
of the Cut-Off Date (and, other than for purposes of calculating the Class
X Strip Rate and the Class X Interest Amount, without regard to any
modification, waiver or amendment of the terms thereof following the
Cut-Off Date) minus the Administrative Cost Rate, in each case applied on
the basis of a 360 day year containing twelve thirty day months regardless
of whether such Mortgage Rate when applied to calculate the actual
interest accruing on the related Mortgage Loan is applied on such basis.
"REMIC I REGULAR INTERESTS" means, collectively, the
uncertificated interests designated as "regular interests" in REMIC I,
which shall consist of, with respect to each Mortgage Loan, (i) an
interest having an initial Certificate Balance equal to the Cut-Off Date
Scheduled Principal Balance of such Mortgage Loan, and which has a
Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such Mortgage
Loan; provided, however, that for purposes of this definition only the
REMIC I Net Mortgage Rate of such Mortgage Loan shall exclude the portion
of interest consisting of Excess Interest, if any, relating thereto, and
(ii) the REMIC I Regular Interest X-1.
"REMIC I REGULAR INTEREST X-1" is a regular interest in REMIC
I which is entitled to payment of the Class X-1 Interest Amount.
"REMIC II" means the segregated pool of assets consisting of
the REMIC I Regular Interests for which a REMIC election has been made
pursuant to Section 12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class A-1 Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
43
"REMIC II REGULAR INTEREST A-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having an initial Certificate Balance equal to the
aggregate Certificate Balance of the Class A-2 Certificates, and which has
a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST B" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class B Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class C Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class D Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class E Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class F Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class G Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class H Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST I" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class I Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
44
"REMIC II REGULAR INTEREST J" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class J Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class K Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class L Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall
consist of an interest having a Certificate Balance equal to the aggregate
Certificate Balance of the Class M Certificates, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST X-1" is a regular interest in REMIC
II which is entitled to payments made on the REMIC I Regular Interest X-1.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II
Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular
Interest B, REMIC II Regular Interest C, REMIC II Regular Interest D,
REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II Regular
Interest G, REMIC II Regular Interest H, REMIC II Regular Interest I,
REMIC II Regular Interest J, REMIC II Regular Interest K and REMIC II
Regular Interest L, REMIC II Regular Interest M and the REMIC II Regular
Interest X-1.
"REMIC III CERTIFICATES" has the meaning set forth in the
final paragraph of the Preliminary Statement hereto.
"REMIC III CLASS M REGULAR INTEREST" shall mean the
uncertificated interest designated as a "regular interest" in REMIC III,
which shall be entitled to the principal and interest paid on the Class M
Certificates as set forth in the table under REMIC III in the Preliminary
Statement herein.
"REMIC III REGULAR INTERESTS" means, collectively, the Class
A-1 Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class I
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class X Certificates and the REMIC III Class M Regular
Interest.
"REMIC POOL" means each of the three segregated pools of
assets designated as a REMIC pursuant to Section 12.1(a) hereof.
45
"REMIC PROVISIONS" means the provisions of the federal income
tax law relating to real estate mortgage investment conduits, which appear
at Sections 860A through 860G of Subchapter M of Chapter 1 of the Code,
and related provisions, and regulations and rulings promulgated
thereunder, as the foregoing may be in effect from time to time and taking
account, as appropriate, of any proposed legislation which, as proposed,
would have an effective date prior to enactment thereof and any proposed
regulations.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class I, Class J, Class K, Class L and Class M Certificates.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO
Property, income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO DISPOSITION" means the receipt by the Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of
REO Property.
"REO INCOME" means, with respect to any REO Property for any
Collection Period, all income received in connection with such REO
Property during such period less any operating expenses, utilities, real
estate taxes, management fees, insurance premiums, expenses for
maintenance and repairs and any other capital expenses directly related to
such REO Property paid during such period and with respect to the Pari
Passu Loan (if the 99-C1 Special Servicer has foreclosed upon the
Mortgaged Property secured by the Pari Passu Mortgage), the portion
thereof allocable to the Pari Passu Loan.
"REO MORTGAGE LOAN" means a Mortgage Loan as to which the
related Mortgaged Property is an REO Property.
"REO PROPERTY" means a Mortgaged Property (or an interest
therein, in the case of the Mortgaged Property securing the Pari Passu
Loan and the Related Trust Fund Mortgage Loan) acquired by the Trust
through foreclosure, deed-in-lieu of foreclosure, abandonment or
reclamation from bankruptcy in connection with a Defaulted Mortgage Loan
or otherwise treated as foreclosure property under the REMIC Provisions.
"REPORT CERTIFICATION" means a certification to be delivered
by the Operating Adviser or any Certificateholder or Certificate Owner in
connection with such Person's request for any report or notice pursuant to
Section 9.39(b), substantially in the form of Exhibit K hereto,
establishing the status of such person as a Certificateholder or
Certificate Owner and certifying that such person will agree to keep the
information contained in such notice or report confidential
46
and will not use such information to buy or sell securities in violation
of the Securities Act of 1933, as amended.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"REQUEST FOR RELEASE" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached
hereto as Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan as to which
an Appraisal Event has occurred. A Mortgage Loan will cease to be a
Required Appraisal Loan at such time as it is a Rehabilitated Mortgage
Loan.
"RESERVE ACCOUNT" shall mean the Reserve Account maintained
by the Paying Agent in accordance with the provisions of Section 5.3,
which shall be an Eligible Account.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the
Class R-I Certificates, with respect to REMIC II, the Class R-II
Certificates and with respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the
initial Trustee or the Fiscal Agent, any officer assigned to the
Asset-Backed Securities Trust Services Group, or with respect to the
Paying Agent, any officer assigned to the Corporate Trust Services Group,
each with specific responsibilities for the matters contemplated by this
Agreement and when used with respect to any successor Trustee, Fiscal
Agent or Paying Agent, any Vice President, Assistant Vice President,
corporate trust officer or any assistant corporate trust officer.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class M,
Class L, Class K, Class J, Class I, Class H, Class G, Class F, Class E,
Class D, Class C, Class B and Class A Certificates.
"REVIEW THRESHOLD" means, with respect to any Mortgage Loan,
that the Principal Balance of such Mortgage Loan at such time equals or
exceeds 5% of the Aggregate Certificate Balance, but, in any case, at
least $2.5 million.
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any
Class of Certificates offered and sold in reliance on Rule 144A or to
certain institutional "accredited investors" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act, a single,
permanent global Certificate, in definitive, fully registered form without
interest coupons.
"SCHEDULED PAYMENT" means each scheduled payment of principal
of, and interest on, a Mortgage Loan required to be paid on its Due Date
by the Mortgagor in accordance with the terms of the related Mortgage Note
(excluding all amounts of principal and interest which were due on or
before the Cut-Off Date, whenever received, and taking account of any
47
modifications thereof and the effects of any Debt Service Reduction
Amounts and Deficient Valuation Amounts).
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any
Mortgage Loan or REO Mortgage Loan, for purposes of performing
calculations with respect to any Distribution Date, the Principal Balance
thereof minus the aggregate amount of any P&I Advances of principal
previously made with respect to such Mortgage Loan or REO Mortgage Loan.
"SELLER" means BSF, MSMC or Xxxxx Fargo, as the case may be.
"SENIOR CERTIFICATES" means the Class A and Class X Certificates.
"SERVICER" means Xxxxx Fargo Bank, National Association and
its permitted successors or assigns.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS
AND OMISSIONS INSURANCE POLICY" means an errors and omissions insurance
policy maintained by the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, in accordance with
Section 8.2, Section 9.2 and Section 7.17, respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or
insurance policy under which the insurer agrees to indemnify the Servicer,
the Special Servicer, the Trustee, the Fiscal Agent or the Paying Agent,
as the case may be, (subject to standard exclusions) for all losses (less
any deductible) sustained as a result of any theft, embezzlement, fraud or
other dishonest act on the part of the Servicer's, Special Servicer's, the
Trustee's, the Fiscal Agent's or the Paying Agent's, as the case may be,
directors, officers or employees and is maintained in accordance with
Section 8.2, Section 9.2 and Section 7.17, respectively.
"SERVICER REMITTANCE DATE" means for each Distribution Date
the Business Day immediately preceding such Distribution Date.
"SERVICER REMITTANCE REPORT" means a report prepared by the
Servicer (in CMSA format (as in effect as of the date hereof) and in such
media as may be agreed upon by the Servicer and the Paying Agent
containing such information regarding the Mortgage Loans as will permit
the Paying Agent to calculate the amounts to be distributed to the
Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report to Certificateholders required to be delivered
hereunder and containing such additional information as the Servicer, the
Paying Agent and the Depositor may from time to time mutually agree.
"SERVICER WATCH LIST" means a report in CMSA format (in effect
as of the date hereof) prepared by the Servicer containing substantially
the information specified in the form of "servicer watch list" produced by
the CMSA. The form of such report is specified by the CMSA and can be
accessed on the CMSA internet website at xxx.xxxx.xxx.
"SERVICER'S MORTGAGE FILE" means copies of mortgage documents
listed in the definition of Mortgage File relating to a Mortgage Loan in
the possession of the Servicer or
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originals of any of such documents released to the Servicer from time to
time pursuant to the terms of this Agreement.
"SERVICING ADVANCE" means any cost or expense of the Servicer,
the Trustee or the Fiscal Agent, as the case may be, designated as a
Servicing Advance pursuant to this Agreement and any other costs and
expenses incurred by the Servicer, the Trustee or the Fiscal Agent, as the
case may be, to protect and preserve the security for such Mortgage Loan.
"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.
"SERVICING FEE" means for each calendar month, as to each
Mortgage Loan (including REO Mortgage Loans, Defeasance Loans and the Pari
Passu Loan), the portion of the Servicing Fee Rate applicable to such
month (determined in the same manner as the applicable Mortgage Rate is
determined for such Mortgage Loan for such month) multiplied by the
Scheduled Principal Balance of each Mortgage Loan immediately before the
Due Date occurring in such month, subject to reduction in respect of
Compensating Interest, as set forth in Section 8.10(c).
"SERVICING FEE RATE" means, with respect to each Mortgage Loan
other than the Pari Passu Loan (including any Mortgage Loan relating to an
REO Property), 0.05% per annum (including any rate of Sub-Servicing Fee)
and with respect to the Pari Passu Loan, 0.01% per annum.
"SERVICING OFFICER" means any officer or employee of the
Servicer involved in, or responsible for, the administration and servicing
of the Mortgage Loans whose name and specimen signature appear on a list
of servicing officers or employees furnished to the Trustee by the
Servicer and signed by an officer of the Servicer, as such list may from
time to time be amended.
"SERVICING STANDARD" means, with respect to the Servicer and
the Special Servicer the higher of the following standards of care:
(a) in the same manner in which and with the same care, skill,
prudence and diligence with which the Servicer or the Special Servicer, as
the case may be, services and administers similar mortgage loans for other
third-party portfolios, giving due consideration to customary and usual
standards of practice of prudent institutional commercial mortgage lenders
servicing their own mortgage loans and to the maximization of the net
present value of the mortgage loans; or
(b) the care, skill, prudence and diligence the Servicer or
the Special Servicer, as the case may be, uses for loans which it owns and
which are substantially the same as the Mortgage Loans, giving due
consideration to the maximization of the net present value of the mortgage
loans;
49
but without regard to: any relationship that the Servicer or Special
Servicer or any Affiliate of the Servicer or Special Servicer may have
with the related Mortgagor; the ownership of any Certificate by the
Servicer or Special Servicer or any Affiliate; the ownership of any Junior
Indebtedness by the Servicer or Special Servicer or any Affiliate with
respect to the Mortgaged Property securing any Mortgage Loan; the Servicer
or Special Servicer's right to receive compensation for its services
hereunder or with respect to any particular transaction; the servicing of
the Mortgage Loans that are not Specially Serviced Mortgage Loans by the
Servicer; and the Servicer's obligation to make Advances and Servicing
Advances as specified herein or the Servicer's obligation to repurchase
any Mortgage Loan under the Mortgage Loan Purchase Agreement I.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) any Mortgage Loan as to which a Balloon Payment is
past due, and the Servicer has determined, in its good faith reasonable
judgment, that payment is unlikely to be made on or before the 60th day
succeeding the date the Balloon Payment was due, or any other payment is
more than 60 days past due or has not been made on or before the second
Due Date following the due date such payment was due; (ii) any Mortgage
Loan as to which, to the Servicer's knowledge, the borrower has consented
to the appointment of a receiver or conservator in any insolvency or
similar proceeding of, or relating to, such borrower or to all or
substantially all of its property, or the borrower has become the subject
of a decree or order issued under a bankruptcy, insolvency or similar law
and such decree or order shall have remained undischarged or unstayed for
a period of 60 days; (iii) any Mortgage Loan as to which the Servicer
shall have received notice of the foreclosure or proposed foreclosure of
any other lien on the Mortgaged Property; (iv) any Mortgage Loan as to
which the Servicer has knowledge of a default (other than a failure by the
related borrower to pay principal or interest) which in the good faith
reasonable judgment of the Servicer materially and adversely affects the
interests of the Certificateholders and which has occurred and remains
unremedied for the applicable grace period specified in such Mortgage Loan
(or, if no grace period is specified, 60 days); (v) any Mortgage Loan as
to which the borrower admits in writing its inability to pay its debts
generally as they become due, files a petition to take advantage of any
applicable insolvency or reorganization statute, makes an assignment for
the benefit of its creditors or voluntarily suspends payment of its
obligations; and (vi) any Mortgage Loan as to which, in the good faith
reasonable judgment of the Servicer, a default has occurred or in the
judgment of the Servicer is imminent or is likely to occur within 60 days.
"SINGLE-PURPOSE ENTITY" means a Person, other than an
individual, whose organizational documents provide that it is formed
solely for the purpose of owning and operating Defeasance Collateral for
the benefit of the Trust and which (i) does not engage in any business
unrelated thereto and the financing thereof; (ii) does not have any assets
other than those related to its interest in Defeasance Collateral; (iii)
maintains its own books, records and accounts, in each case which are
separate and apart from the books, records and accounts of any other
Person; (iv) conducts business in its own name and uses separate
stationery, invoices and checks; (v) does not guarantee or assume the
debts or obligations of any other Person; (vi) does not commingle its
assets or funds with those of any other Person; (vii) transacts business
with affiliates on an arm's length basis pursuant to written agreements;
and (viii) holds itself out as being a legal entity, separate and apart
from any other Person. The entity's organizational
50
documents also provide that any dissolution and winding up or insolvency
filing for such entity requires the unanimous consent of all partners or
members, as applicable, and that such documents may not be amended with
respect to the Single-Purpose Entity requirements.
"SPECIAL SERVICER" means GMAC Commercial Mortgage Corporation
or any successor Special Servicer as herein provided.
"SPECIAL SERVICER COMPENSATION" means, with respect to any
applicable period, the sum of the Special Servicing Fees, the Liquidation
Fees and Work-Out Fees and any other amounts to be paid to the Special
Servicer pursuant to the terms of this Agreement, including without
limitation, assumption fees as provided under Section 9.5 and 9.11 herein.
"SPECIAL SERVICER MONTHLY REPORTS" mean the reports
substantially in the form of Exhibit O attached hereto.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day
preceding each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to
each Mortgage Loan (other than the Pari Passu Loan) which is a Specially
Serviced Mortgage Loan, the fraction or portion of the Special Servicing
Fee Rate applicable to such month (determined using the same interest
accrual methodology that is applied with respect to the Mortgage Rate for
such Mortgage Loan for such month) multiplied by the Scheduled Principal
Balance of such Specially Serviced Mortgage Loan immediately before the
Due Date occurring in such month, subject to reduction in respect of
Compensating Interest as set forth in Section 9.11.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of
the Special Servicer involved in, or responsible for, the administration
and servicing of the Specially Serviced Mortgage Loans whose name and
specimen signature appear on a list of servicing officers or employees
furnished to the Trustee, the Paying Agent and the Servicer by the Special
Servicer signed by an officer of the Special Servicer, as such list may
from time to time be amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan (other than the Pari Passu Loan) with
respect to which the Servicer has notified the Special Servicer, the
Paying Agent and the Trustee that a Servicing Transfer Event has occurred
(which notice shall be effective upon receipt) and the Special Servicer
has received all information, documents and records relating to such
Mortgage Loan as reasonably requested by the Special Servicer to enable it
to assume its duties with respect to such Mortgage Loan. A Specially
Serviced Mortgage Loan shall cease to be a Specially Serviced Mortgage
Loan from and after the date on which the Special Servicer notifies the
Servicer, the Paying Agent and the Trustee, in accordance with Section
8.1(b), that such Mortgage Loan has become a Rehabilitated Mortgage Loan
with respect to such Servicing Transfer Event, unless and until the
Servicer
51
notifies the Special Servicer, the Paying Agent and the Trustee, in
accordance with Section 8.1(b) that another Servicing Transfer Event with
respect to such Mortgage Loan exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage
as required by this Agreement.
"SUB-SERVICER" shall have the meaning set forth in Section 8.4.
"SUB-SERVICING FEE" means with respect to each Mortgage Loan
(including Mortgage Loans relating to REO Properties) the monthly fee
payable to the applicable Sub-Servicer based on the per annum rate
specified on the Mortgage Loan Schedule.
"SUBORDINATE CERTIFICATES" means, collectively, the 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.
"TAX MATTERS PERSON" means the person designated as the "tax
matters person" of the REMIC Pool pursuant to Treasury Regulation Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" shall have the meaning set forth in Section
10.1(b) herein.
"TITLE INSURANCE POLICY" means a title insurance policy
maintained with respect to a Mortgage Loan issued on the date of
origination of the related Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale,
pledge, hypothecation, or other form of assignment of any Ownership
Interest in a Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement,
the assets which consist of all the assets of REMIC I (including the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account, the Distribution Account, the Insurance Policies, any
REO Properties and other items referred to in Section 2.1(a) hereof),
REMIC II and REMIC III and the Excess Interest Sub-account and any Excess
Interest.
"TRUSTEE" means LaSalle Bank National Association, as Trustee,
or its successor-in-interest, or if any successor trustee, or any
co-trustee shall be appointed as herein provided, then Trustee shall also
mean such successor trustee (subject to Section 7.7 hereof) and such
co-trustee (subject to Section 7.9 hereof), as the case may be.
"TRUSTEE FEE" means for each calendar month, as to each
Mortgage Loan (including REO Mortgage Loans, Defeasance Loans and the Pari
Passu Loan), the portion of the Trustee Fee Rate applicable to such month
(determined using the same interest accrual
52
methodology that is applied with respect to the Mortgage Rate for such
Mortgage Loan for such month) multiplied by the Scheduled Principal
Balance of each Mortgage Loan immediately before the Due Date occurring in
such month, provided that a portion of the Trustee Fee shall be applied to
pay the Paying Agent Fee.
"TRUSTEE FEE RATE" means with respect to all Mortgage Loans,
0.0032% per annum (of which 0.0020% per annum constitutes the Paying Agent
Fee Rate).
"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in
the definition of Mortgage File hereof pertaining to a particular Mortgage
Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement; provided that whenever the term "Trustee
Mortgage File" is used to refer to documents actually received by the
Trustee or a Custodian on behalf of the Trust, such terms shall not be
deemed to include such documents required to be included therein unless
they are actually so received.
"UNDERWRITER" means each of Bear, Xxxxxxx & Co. Inc., Xxxxxx
Xxxxxxx & Co. Incorporated and Norwest Investment Services, Inc. or their
respective successors in interest.
"UNITED STATES PERSON" means (i) any natural person resident
in the United States, (ii) any partnership or corporation organized or
incorporated under the laws of the United States or any state thereof or
the District of Columbia, (iii) any estate of which an executor or
administrator is a U.S. Person (other than an estate governed by foreign
law and of which at least one executor or administrator is a non-U.S.
Person who has sole or shared investment discretion with respect to its
assets), (iv) any trust of which any trustee is a U.S. Person (other than
a trust of which at least one trustee is a non-U.S. Person and has sole or
shared investment discretion with respect to its assets), (v) any agency
or branch of a foreign entity located in the United States, (vi) any
non-discretionary or similar account (other than an estate or trust) held
by a dealer or other fiduciary for the benefit or account of a U.S.
Person, (vii) any discretionary or similar account (other than an estate
or trust) held by a dealer or other fiduciary organized, incorporated or
(if an individual) resident in the United States (other than such an
account held for the benefit or account of a non-U.S. Person), (viii) any
partnership or corporation organized or incorporated under the laws of a
foreign jurisdiction and formed by a U.S. Person principally for the
purpose of investing in securities not registered under the 1933 Act
(unless it is organized or incorporated, and owned, by accredited
investors within the meaning of Rule 501(A) under the 1933 Act who are not
natural persons, estates or trusts); provided, however, that the term
"U.S. Person" shall not include (A) a branch or agency of a U.S. Person
that is located and operating outside the United States for valid business
purposes as a locally regulated branch or agency engaged in the banking or
insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and
documentation of a foreign country and (C) the international organizations
set forth in Section 902(o)(7) of Regulation S under the 1933 Act and any
other similar international organizations, and their agencies, affiliates
and pension plans.
"UNPAID INTEREST" means, on any Distribution Date with respect
to any Class of Interests or Certificates (other than the Residual
Certificates), the portion of Distributable Certificate Interest for such
Class remaining unpaid as of the close of business on the preceding
53
Distribution Date, plus one month's interest thereon at the applicable
Pass-Through Rate other than unpaid interest relating to Net Aggregate
Prepayment Interest Shortfalls.
"USAP" shall have the meaning set forth in Section 8.13.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with
respect to any Distribution Date, the weighted average of the REMIC I Net
Mortgage Rates for the REMIC I Regular Interests, weighted on the basis of
their respective Certificate Balances as of the close of business on the
preceding Distribution Date.
"XXXXX FARGO" has the meaning assigned in the Preliminary
Statement hereof.
"XXXXX FARGO LOANS" means, collectively those Mortgage Loans
sold to the Depositor pursuant to Mortgage Loan Purchase Agreement II and
shown on Schedule II hereto.
"WORK-OUT FEE" means a fee payable with respect to any
Rehabilitated Mortgage Loan (other than the Pari Passu Loan), equal to the
product of (x) 1.0% and (y) the amount of each collection of interest
(other than default interest and Excess Interest) and principal received
on such Mortgage Loan for so long as it remains a Rehabilitated Mortgage
Loan.
"YIELD MAINTENANCE CHARGE": With respect to any Mortgage Loan,
the yield maintenance charge calculated pursuant to a formula set forth in
the related Mortgage Note intended to result in a payment to the lender of
an amount which is generally equal to the present value of the remaining
interest payments that would have become due had such prepayment not
occurred to the extent such interest payments would have accrued at a rate
in excess of the specified Yield Rate.
"YIELD RATE": With respect to any Mortgage Loan that provides
for the payment of a Yield Maintenance Charge in connection with a
Principal Prepayment, a discount rate specified in the related Mortgage
Note used to determine such Yield Maintenance Charge generally equal to
the rate which, when compounded monthly, is equal to the semi-annual yield
calculated by the linear interpolation of the yields, as reported in
Federal Reserve Statistical Release H.15--Selected Interest Rates under
the heading "U.S. government securities/Treasury constant maturities" for
the week ending prior to the date of the relevant principal prepayment, of
U.S. Treasury securities with constant maturities whose maturity dates
(one longer and one shorter) most nearly approximate the Maturity Date of
such Mortgage Loan. If Release H.15 is no longer published, the Servicer
will select a comparable publication to determine the Yield Rate.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS.
Calculations required to be made by the Paying Agent pursuant to this
Agreement with respect to any Mortgage Loan shall be made based upon
current information as to the terms of the Mortgage Loans and reports of
payments received from the Servicer on such Mortgage Loans and payments to
be made to the Paying Agent as supplied to the Paying Agent by the
Servicer. The Paying Agent shall not be required to recompute, verify or
recalculate the information supplied to it by the Servicer and may
conclusively rely upon such information in making such calculations. If,
however, a
54
Responsible Officer of the Paying Agent has actual knowledge of an error
in the calculations, the Paying Agent shall inform the Servicer of such
error.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued
interest on any Certificate shall be calculated based upon a 360-day year
consisting of twelve 30-day months and Pass-Through Rates shall be carried
out to eight decimal places, rounded if necessary. All dollar amounts
calculated hereunder shall be rounded to the nearest xxxxx.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Monthly Certificateholder Report, Special Servicer
Remittance Date, Servicer Remittance Date or Determination Date, such
reference shall be to the Collection Period, Interest Accrual Period,
Record Date, Due Date, Report Date, Special Servicer Remittance Date,
Servicer Remittance Date or Determination Date, as applicable, immediately
preceding such Distribution Date.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined
in Section 1.1 shall have the respective meanings given to them under
generally accepted accounting principles or regulatory accounting
principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement, shall refer to this agreement
as a whole and not to any particular provision of this Agreement, and
references to Sections, Schedules and Exhibits contained in this Agreement
are references to Sections, Schedules and Exhibits in or to this Agreement
unless otherwise specified.
(d) Whenever a term is defined herein, the definition ascribed
to such term shall be equally applicable to both the singular and plural
forms of such term and to masculine, feminine and neuter genders of such
term.
(e) This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its
counsel. Each party agrees that any ambiguity in this Agreement shall not
be interpreted against the party drafting the particular clause which is
in question.
(f) The word "including" when used in this Agreement shall
mean, "including, without limitation."
SECTION 1.5 ARD LOANS. Notwithstanding any provision of this
Agreement;
(a) For each ARD Loan, the Excess Interest accruing as a
result of the step-up in the Mortgage Rate upon failure of the related
Mortgagor to pay the principal on the Anticipated Repayment Date as
specifically provided for in the related Mortgage Note shall not be taken
into account for purposes of the definitions of "Appraisal Reduction
Amount," "Assumed Scheduled Payment," "Mortgage Rate," "Purchase Price"
and "Realized Loss."
55
(b) Excess Interest shall constitute an asset of the Trust.
(c) Neither the Servicer nor the Special Servicer shall take
any enforcement action with respect to the payment of Excess Interest
unless the taking of such action is consistent with the Servicing Standard
and all other amounts due under such Mortgage Loan have been paid, and, in
the good faith and reasonable judgment of the Servicer and the Special
Servicer, as the case may be, the Liquidation Proceeds expected to be
recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any
associated Excess Interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on
Excess Interest.
(e) With respect to such ARD Loan after its Anticipated
Repayment Date, the Servicer or the Special Servicer, as the case may be,
shall be permitted, in its discretion, to waive in accordance with Section
8.18 and Section 9.5 hereof all or any accrued Excess Interest if, prior
to the related Maturity Date, the related Mortgagor has requested the
right to prepay the Mortgage Loan in full together with all payments
required by the Mortgage Loan in connection with such prepayment except
for all or a portion of accrued Excess Interest, provided that the
Servicer's or the Special Servicer's determination to waive the right to
such accrued Excess Interest is in accordance with the Servicing Standard
and with Section 8.18 and Section 9.5 hereof. The Servicer or the Special
Servicer, as the case may be, will have no liability to the Trust, the
Certificateholders or any other person so long as such determination is
based on such criteria.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby assign to the Trustee, without recourse, in
trust for the benefit of the Certificateholders all the right, title and
interest of the Depositor, in, to and under (i) the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the Depositor's rights
under each Mortgage Loan Purchase Agreement that are permitted to be
assigned pursuant to Sections 14 or 15 thereof as applicable, (iii) the
Initial Deposit, (iv) the Depositor's rights under the Pari Passu
Intercreditor Agreement and the 99-C1 Pooling and Servicing Agreement with
respect to the servicing of the Pari Passu Loan and (v) all other assets
included or to be included in REMIC I for the benefit of REMIC II and
REMIC III and (vi) all other assets of the Trust. Such assignment includes
all interest and principal received or receivable on or with respect to
the Mortgage Loans and due after the Cut-Off Date. The transfer of the
Mortgage Loans and the related rights and property accomplished hereby is
absolute and is intended by the parties to constitute a sale. In
connection with the initial sale of the Certificates by the Depositor, the
purchase price to be paid includes a portion attributable to interest
accruing on the Certificates from the Cut-off Date. The transfer and
56
assignment of the Pari Passu Loan to the Trustee and the right to service
such Mortgage Loan is subject to the terms and conditions of the 99-C1
Pooling and Servicing Agreement.
(b) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall direct, and hereby represents
and warrants that it has directed, each Seller 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 Note for
each Mortgage Loan so assigned, endorsed to the Trustee as specified in
clause (i) of the definition of "Mortgage File." The Depositor hereby
represents that each Seller is required, pursuant to the applicable
Mortgage Loan Purchase Agreement, to deliver to the Custodian (or the
Trustee if there is no Custodian) the remaining documents constituting the
Mortgage File for each Mortgage Loan within 30 days following the Closing
Date (with such exceptions as are permitted under the applicable Mortgage
Loan Purchase Agreement). None of the Trustee, the Fiscal Agent, the
Paying Agent, any Custodian, the Servicer or the Special Servicer shall be
liable for any failure by either Seller or the Depositor to comply with
the document delivery requirements of the Mortgage Loan Purchase
Agreements and this Section 2.1(b).
(c) Each Seller under the applicable Mortgage Loan Purchase
Agreement shall, at its own expense, as to each Mortgage Loan, promptly
(and in any event within 45 days following the receipt thereof) cause to
be submitted for recording or filing, as the case may be, in the
appropriate public office for real property records or UCC financing
statements, as appropriate, each assignment to the Trustee referred to in
clauses (iii), (v), (vii) and (xi) of the definition of "Mortgage File."
As provided in the applicable Mortgage Loan Purchase Agreement, each such
assignment shall reflect that it should be returned by the public
recording office to the Custodian (or the Trustee if there is no
Custodian) on behalf of the Certificateholders following recording or
filing; provided that in those instances where the public recording office
retains the original assignment of Mortgage or assignment of Assignment of
Leases the applicable Seller shall obtain therefrom at its own expense a
certified copy of the recorded original. As provided in the applicable
Mortgage Loan Purchase Agreement, the applicable Seller shall forward
copies thereof to the Trustee, the Servicer and the Special Servicer. If
any such document or instrument is lost or returned unrecorded or unfiled,
as the case may be, because of a defect therein, the Servicer shall direct
each Seller pursuant to the applicable Mortgage Loan Purchase Agreement
promptly to prepare or cause to be prepared a substitute therefor or cure
such defect, as the case may be, and thereafter the Servicer shall upon
receipt thereof cause the same to be duly recorded or filed, as
appropriate.
(d) All relevant servicing documents and records in the
possession of the Depositor or the Sellers that relate to the Mortgage
Loans and that are not required to be a part of a Mortgage File in
accordance with the definition thereof shall be delivered to the Servicer
or Custodian on or before the Closing Date and shall be held by the
Servicer or Custodian (or the Trustee if there is no Custodian), as the
case may be, in trust for the benefit of the Certificateholders. The
Depositor shall deliver or cause the related Seller to deliver to the
Special Servicer a copy of each Mortgage File to the extent that (i) such
copy has not previously been delivered to the Special Servicer and (ii)
the Special Servicer requests (in writing) such copy within 180 days
following the Closing Date. The Depositor shall deliver or cause the
57
related Seller to deliver such copy within a reasonable period following
such request by the Special Servicer.
(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Custodian (or, if
there is no Custodian, the Trustee) on or before the Closing Date a copy
of a fully executed counterpart of each Mortgage Loan Purchase Agreement,
as in full force and effect on the Closing Date, which Mortgage Loan
Purchase Agreements shall contain the representations and warranties made
by the Sellers with respect to each related Mortgage Loan as of the
Closing Date as are set forth on Exhibits R-1 and R-2 hereto.
(f) Concurrently herewith, the Depositor has acquired the BSF
Loans from BSF, the Xxxxx Fargo Loans from Xxxxx Fargo and the MSMC Loans
from MSMC. The Depositor has directed Xxxxx Fargo to deliver the original
Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating
to the Xxxxx Fargo Loans to the Custodian (or the Trustee if there is no
Custodian), with the Trustee, on behalf of the Certificateholders,
inserted in the endorsement in blank executed by Xxxxx Fargo, to effect
the transfer to the Trustee of such Mortgage Notes and all related deeds
of trust, mortgages and other loan documents. The Depositor has directed
BSF to deliver the original Mortgage Notes relating to the BSF Loans to
the Custodian (or the Trustee if there is no Custodian), with the Trustee,
on behalf of the Certificateholders, inserted in the endorsement in blank
executed by BSF, to effect the transfer to the Trustee of such Mortgage
Notes and all related deeds of trust, mortgages and other loan documents.
The Depositor has directed MSMC to deliver the original Mortgage Notes
relating to the MSMC Loans to the Custodian (or the Trustee if there is no
Custodian), with the Trustee, on behalf of the Certificateholders,
inserted in the endorsement in blank executed by MSMC, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of
trust, mortgages and other loan documents. To avoid the unnecessary
expense and administrative inconvenience associated with the execution and
recording of multiple assignment documents, Xxxxx Fargo, MSMC and BSF, as
applicable, are required under the Mortgage Loan Purchase Agreements to
deliver Assignments of Mortgages and assignments of UCC financing
statements naming the Trustee, on behalf of the Certificateholders, as
assignee. Notwithstanding the fact that the assignments shall name the
Trustee, on behalf of the Certificateholders, as the assignee, the parties
hereto acknowledge and agree that for all purposes the Xxxxx Fargo Loans
shall be deemed to have been transferred from Xxxxx Fargo to the
Depositor, the BSF Loans shall be deemed to have been transferred from BSF
to the Depositor, the MSMC Loans shall be deemed to have been transferred
from MSMC to the Depositor, and all Mortgage Loans shall be deemed to have
been transferred from the Depositor to the Trustee on behalf of the
Certificateholders.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee or the
Custodian on the Trustee's behalf, will hold (i) the documents
constituting a part of the Mortgage Files delivered to it, (ii) the REMIC
I Regular Interests and (iii) the REMIC II Regular Interests, in each
case, in trust for the use and benefit of all present and future
Certificateholders.
Upon execution and delivery of this Agreement in respect of
the Initial Certification, and within 90 days after the execution and
delivery of this Agreement in respect of
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the Final Certification, the Custodian (or the Trustee if there is no
Custodian) on the Certificateholders' behalf, shall examine the Mortgage
Files in its possession, and shall deliver to the Depositor, the Trustee
(if there is no Custodian), the Servicer and the Special Servicer a
certification (the "Initial Certification" and the "Final Certification",
respectively, in the respective forms set forth as Exhibit B-1 and Exhibit
B-2 hereto) (i) in the case of the Initial Certification, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be
specified in the schedule of exceptions to Mortgage File delivery attached
thereto, to the effect that: (A) all documents pursuant to clause (i) of
the definition of Mortgage File are in its possession, (B) such documents
have been reviewed by it and have not been materially mutilated, damaged,
defaced, torn or otherwise physically altered, and such documents relate
to such Mortgage Loan, and (C) each Mortgage Note has been endorsed as
provided in clause (i) of the definition of Mortgage File, and (ii) in the
case of the Final Certification, as to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as may be specified in the schedule of
exceptions to Mortgage File delivery attached thereto, to the effect that:
(A) all documents pursuant to clauses (i), (ii), (iii) and (ix) of the
definition of Mortgage File required to be included in the Mortgage File,
and with respect to all documents specified in the other clauses of the
definition of Mortgage File to the extent known by a Responsible Officer
of the Custodian (or, if there is no Custodian, the Trustee) to be
required pursuant to this Agreement, are in its possession, (B) such
documents have been reviewed by it and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (C) based on its examination and only as to
the Mortgage Note and Mortgage, the street address of the Mortgaged
Property and the name of the borrower set forth in the Mortgage Loan
Schedule respecting such Mortgage Loan accurately reflects the information
contained in the documents in the Mortgage File, and (D) each Mortgage
Note has been endorsed and each Assignment of Mortgage has been delivered
as provided in clause (i) and clause (iii), respectively, of the
definition of Mortgage File. The Custodian (or, if there is no Custodian,
the Trustee), shall deliver to the Servicer, the Special Servicer, the
Trustee and each Seller (as to its respective Mortgage Loans only), a copy
of such Final Certification.
Within 360 days after the Cut-Off Date, the Custodian (or the
Trustee if there is no Custodian) shall provide (i) a confirmation of
receipt of recorded assignments of Mortgage and (ii) a report on the
status of any schedule of exceptions to the Final Certification delivered
pursuant to the preceding paragraph to the Servicer, the Trustee, the
Operating Adviser, the Special Servicer and each Seller, and if any
recorded assignment of Mortgage has not been received by the Custodian (or
the Trustee if there is no Custodian) on the Certificateholders' behalf,
by such time, the Custodian (or, if there is no Custodian, the Trustee)
shall provide information in such confirmation on the status of missing
assignments. In giving the certifications required above, the Custodian
(or, if there is no Custodian, the Trustee) shall be under no obligation
or duty to inspect, review or examine any such documents, instruments,
securities or other papers to determine whether they or the signatures
thereon are valid, legal, genuine, enforceable, in recordable form or
appropriate for their represented purposes, or that they are other than
what they purport to be on their face, or to determine whether any
Mortgage File should include any assumption agreement, modification
agreement, consolidation agreement, extension agreement, Assignment of
Lease, Security Agreement, Subordination Agreement, environmental report,
environmental indemnification agreement, ground lease, UCC
59
financing statement, guaranty, written assurance, substitution agreement,
lock box agreement, intercreditor agreement, management agreement or
letter of credit.
If, in the course of such review, the Custodian (or the
Trustee if there is no Custodian) finds any document constituting a part
of a Trustee Mortgage File which does not meet the requirements of clauses
(A) through (D) with respect to the Final Certification in the second
preceding paragraph, the Custodian (or the Trustee if there is no
Custodian) shall promptly notify the applicable Seller, the Servicer, the
Special Servicer, the Trustee, the Operating Adviser, and the Depositor in
writing and the Servicer shall, and the Special Servicer may, request such
Seller to correct or cure such defect in the manner and within the period
or periods set forth in the applicable Mortgage Loan Purchase Agreement
and absent such correction or cure, and, in the case of a defect which
results from a failure to meet one or more requirements of clauses (A)
through (C) in the preceding paragraph, such defect materially and
adversely affects the value of the related Mortgage Loan or the interest
of the Trustee in the related Mortgage Loan (in the good faith judgment of
the Servicer or the Trustee), or in any event in the case of a defect
under (D), the Trustee shall, and the Special Servicer may, request the
applicable Seller to either (i) substitute for the related Mortgage Loan,
without recourse, a Qualifying Substitute Mortgage Loan or Loans, which
substitution shall be accomplished in the manner and subject to the
conditions set forth in Section 2.3; or (ii) purchase such Mortgage Loan
from the Trust at the Purchase Price therefor in accordance with the
related Mortgage Loan Purchase Agreement. Although the Seller shall be
required to perform the action described in either clause (i) or clause
(ii) of the preceding sentence, the Seller shall have the right in its
sole discretion to elect which of such actions it will take in complying
with such request. The Purchase Price for any such Mortgage Loan shall be
paid to the Servicer and deposited by the Servicer in the Certificate
Account. Upon receipt by the Custodian (or the Trustee if there is no
Custodian) of written notification of deposit of the Purchase Price or
other amount required of the applicable Seller, signed by a Servicing
Officer of the Servicer (which notification shall include a statement as
to the accuracy of the calculation of the Purchase Price or other required
deposit), the Custodian (or the Trustee if there is no Custodian) shall
release the related Trustee Mortgage File to the applicable Seller and the
Trustee and the Depositor shall execute and deliver such instruments of
transfer or assignment in the forms presented to it, in each case without
recourse, representation or warranty as shall be necessary to vest in such
Seller, or its designee, title (to the extent that such title was
transferred to the Depositor or the Trustee) to any Mortgage Loan released
pursuant hereto.
The Custodian (or the Trustee or any of its authorized agents
if there is no Custodian), shall retain possession and custody of each
Trustee Mortgage File in accordance with and subject to the terms and
conditions set forth herein.
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR DOCUMENT
DEFECTS AND BREACHES OF REPRESENTATIONS AND WARRANTIES.
(a) If any party hereto discovers that any document or
documents constituting a part of a Mortgage File has not been delivered as
and when required, has not been properly executed, or is defective on its
face or discovers or receives notice of a breach of any of the
representations and warranties relating to the Mortgage Loans required to
be made by a Seller
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regarding the characteristics of the Mortgage Loans and/or related
Mortgage Properties as set forth in the related Mortgage Loan Purchase
Agreements, and in either case such defect (a "Document Defect") or breach
(a "Breach") materially and adversely affects the interests of the holders
of the Certificates, such party shall give prompt written notice to the
other parties hereto and to each Rating Agency. Promptly upon becoming
aware of any such Document Defect or Breach, the Servicer shall, and the
Special Servicer may, request that the related Seller, not later than 90
days from such Seller's receipt of the notice of such Document Defect or
Breach, cure such Document Defect or Breach, as the case may be, in all
material respects; provided, however, that if such Document Defect or
Breach, as the case may be, cannot be corrected or cured in all material
respects within such 90-day period, but the related Seller is diligently
attempting to effect such correction or cure, as certified by such Seller
in an Officer's Certificate delivered to the Trustee, then the cure period
will be extended for an additional 90 days.
If any such Document Defect or Breach cannot be corrected or
cured in all material respects within the above cure periods, the related
Seller will be obligated, not later than the last day of such permitted
cure period, to (i) repurchase the affected Mortgage Loan from the Trust
at the applicable Purchase Price in accordance with the related Mortgage
Loan Purchase Agreement, or (ii) at the Seller's option, if within the
three-month period commencing on the Closing Date (or within the two-year
period commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of
the Code and Treasury Regulation Section 1.860G-2(f)), replace such
Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such Document
Defect or Breach would cause the Mortgage Loan to be other than a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the
Code), then notwithstanding the previous sentence, repurchase must occur
within 90 days from the date the Seller was notified of the defect and
substitution must occur within the sooner of (i) 90 days from the date the
Seller was notified of the defect or (ii) two years from the Closing Date.
Any of the following Document Defects shall be conclusively
presumed materially and adversely to affect the interests of
Certificateholders in, or the value of, a Mortgage Loan: (a) the absence
from the Mortgage File of the original signed Mortgage Note, unless the
Mortgage File contains a signed lost note affidavit and indemnity that
appears to be regular on its face; (b) the absence from the Mortgage File
of the original signed Mortgage (or with respect to the Pari Passu Loan, a
copy thereof) that appears to be regular on its face, unless there is
included in the Mortgage File a certified copy of the Mortgage and the
certificate states that the original signed Mortgage was sent for
recordation within the previous 180 days; or (c) the absence from the
Mortgage File of the item called for by paragraph (ix) of the definition
of Mortgage File. If any of the foregoing Document Defects is discovered
by the Custodian (or the Trustee if there is no Custodian), the Trustee
(or as set forth in Section 2.3(a), the Servicer) will take the steps
described elsewhere in this section, including the giving of notices to
the Rating Agencies and the parties hereto and making demand upon the
related Mortgage Loan Seller for the cure of the Document Defect or
repurchase or replacement of the related Mortgage Loan.
As to any Qualifying Substitute Mortgage Loan or Loans, the
Servicer shall cause the related Seller to deliver to the Custodian (or
the Trustee if there is no Custodian) for such Qualifying Substitute
Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related
61
assignment of the Mortgage, and such other documents and agreements as are
required by Section 2.1, with the Mortgage Note endorsed as required by
Section 2.1. No substitution may be made in any calendar month after the
Determination Date for such month. Monthly payments due with respect to
Qualifying Substitute Mortgage Loans in the month of substitution shall
not be part of the Trust and will be retained by Servicer and remitted by
the Servicer to the related Seller on the next succeeding Distribution
Date. For the month of substitution, distributions to Certificateholders
will include the Scheduled Payment due on the related Deleted Mortgage
Loan for such month and thereafter the related Seller shall be entitled to
retain all amounts received in respect of such Deleted Mortgage Loan.
The Servicer shall amend or cause to be amended the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Qualifying Substitute Mortgage Loan or Loans and upon
such amendment the Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee, the Custodian, the Paying
Agent and the Special Servicer. Upon such substitution, the Qualifying
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects. Upon receipt of the Trustee Mortgage File
pertaining to any Qualifying Substitute Mortgage Loans, the Custodian (or
the Trustee if there is no Custodian) shall release the Trustee Mortgage
File relating to such Deleted Mortgage Loan to the related Seller, and the
Trustee (and the Depositor, if necessary) shall execute and deliver such
instruments of transfer or assignment in the form presented to it, in each
case without recourse, representation or warranty, as shall be necessary
to vest title (to the extent that such title was transferred to the
Trustee or the Depositor) in the related Seller or its designee to any
Deleted Mortgage Loan substituted for pursuant to this Section 2.3.
In any month in which the related Seller substitutes one or
more Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage
Loans, the Servicer will determine the amount (if any) by which the
aggregate principal balance of all such Qualified Substitute Mortgage
Loans as of the date of substitution is less than the aggregate principal
balance of all such Deleted Mortgage Loans (in each case after application
of scheduled principal portion of the monthly payments received in the
month of substitution). The Depositor shall cause the related Seller to
deposit the amount of such shortage into the Certificate Account in the
month of substitution, without any reimbursement thereof. In addition, the
Depositor shall cause the related Seller to deposit into the Certificate
Account, together with such shortage, if any, an amount equal to interest
on the Deleted Mortgage Loans at a rate equal to the sum of the applicable
Mortgage Rate from the Due Date as to which interest was last paid up to
the Due Date next succeeding such substitution together with the amount of
unreimbursed Servicing Advances, amounts required to be paid to the
Special Servicer but remaining unpaid or unreimbursed, and interest on
unreimbursed Advances with respect to such Deleted Mortgage Loans at the
Advance Rate. The Depositor shall cause the related Seller, in the case of
the Mortgage Loans, to give notice in writing (accompanied by an Officer's
Certificate as to the calculation of such shortage) to the Trustee, the
Paying Agent and the Servicer of such event which notice shall be
accompanied by an Officers' Certificate as to the calculation of such
shortfall.
If the affected Mortgage Loan is to be repurchased, the
Servicer shall designate the Certificate Account as the account to which
funds in the amount of the Purchase Price are to
62
be wired. Any such purchase of a Mortgage Loan shall be on a whole loan,
servicing released basis. Notwithstanding the foregoing, the delivery of a
commitment to issue a Title Insurance Policy in lieu of the delivery of
the actual Title Insurance Policy shall not be considered a Document
Defect with respect to any Mortgage File if such actual Title Insurance
Policy is delivered to the Custodian (or the Trustee if there is no
Custodian) not later than the 180th day following the Closing Date.
(b) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Trustee, the Custodian
(if any), the Servicer and the Special Servicer shall each tender to the
related Seller, upon delivery to each of them of a receipt executed by
such Seller, all portions of the Mortgage File and other documents
pertaining to such Mortgage Loan possessed by it, and each document that
constitutes a part of the Mortgage File shall be endorsed or assigned to
the extent necessary or appropriate to the related Seller or its designee
in the same manner, and pursuant to appropriate forms of assignment,
substantially similar to the manner and forms pursuant to which documents
were previously assigned to the Trustee, but in any event, without
recourse, representation or warranty; provided that such tender by the
Custodian (or the Trustee if there is no Custodian) shall be conditioned
upon its receipt from the Servicer of a Request for Release. The Servicer
shall, and is hereby authorized and empowered by the Trustee to, prepare,
execute and deliver in its own name, on behalf of the Certificateholders
and the Trustee or any of them, the endorsements and assignments
contemplated by this Section 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Servicer to do so.
The Servicer shall indemnify the Trustee for all costs, liabilities and
expenses (including attorneys' fees) incurred by the Trustee in connection
with any negligent or intentional misuse of any such powers of attorney by
the Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole
remedies available to the Certificateholders, or the Trustee on behalf of
the Certificateholders, respecting any Document Defect or Breach. The
parties hereunder understand that (i) Xxxxx Fargo, as Seller under the
Mortgage Loan Purchase Agreement II, will be providing the remedies with
respect to the Xxxxx Fargo Loans, (ii) BSF, as Seller under the Mortgage
Loan Purchase Agreement I, will be providing the remedies with respect to
the BSF Loans and (iii) MSMC, as Seller under the Mortgage Loan Purchase
Agreement III, will be providing the remedies with respect to the MSMC
Loans.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor
hereby represents and warrants to the Servicer, the Special Servicer, the
Trustee (in its capacity as Trustee of the Trust), the Fiscal Agent and
the Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its property,
to carry on its business as presently conducted, to enter into and perform
its obligations under this Agreement, and to create the trust pursuant
hereto;
(b) The execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action on
the part of the Depositor; neither the execution and delivery of this
Agreement, nor the consummation of the transactions herein contemplated,
63
nor compliance with the provisions hereof, will conflict with or result in
a breach of, or constitute a default under, (i) any of the provisions of
any law, governmental rule, regulation, judgment, decree or order binding
on the Depositor or its properties; (ii) the certificate of incorporation
or bylaws of the Depositor; or (iii) the terms of any indenture or other
agreement or instrument to which the Depositor is a party or by which it
is bound; neither the Depositor nor any of its Affiliates is a party to,
bound by, or in breach of or violation of any indenture or other agreement
or instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the
future materially and adversely affect (i) the ability of the Depositor to
perform its obligations under this Agreement or (ii) the business,
operations, financial condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in respect of,
any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to
the best of the Depositor's knowledge, threatened or likely to be asserted
against or affecting the Depositor, before or by any court, administrative
agency, arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any
other matter which in the judgment of the Depositor will be determined
adversely to the Depositor and will, if determined adversely to the
Depositor, materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or adversely affect its
ability to perform its obligations under this Agreement; and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was
the sole owner of each Mortgage Loan free and clear of any and all adverse
claims, charges or security interests (including liens arising under the
federal tax laws or ERISA).
SECTION 2.5 CONVEYANCE OF INTERESTS. Concurrently with the
execution and delivery of this Agreement, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the
Trustee, without recourse, in trust, all the right, title and interest of
the Depositor in and to (i) the REMIC I Regular Interests in exchange for
the REMIC II Interests and (ii) the REMIC II Regular Interests in exchange
for the REMIC III Certificates.
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ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set
forth in Exhibits A-1 through A-18 hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Agreement or as may in the reasonable judgment of the
Trustee or the Depositor be necessary, appropriate or convenient to
comply, or facilitate compliance, with applicable laws, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of
any securities exchange on which any of the Certificates may be listed, or
as may, consistently herewith, be determined by the officers executing
such Certificates, as evidenced by their execution thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods
or may be produced in any other manner permitted by the rules of any
securities exchange on which any of the Certificates may be listed, all as
determined by the officers executing such Certificates, as evidenced by
their execution thereof.
(b) The Class A Certificates will be issuable in denominations
of $25,000 initial Certificate Balance and in any whole dollar
denomination in excess thereof. The Class 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 will be issuable in denominations of $100,000 initial
Certificate Balance or in any whole dollar denomination in excess thereof.
The Class X Certificates shall be issuable in denominations of $1,000,000
initial Notional Amount or in any whole dollar denomination in excess
thereof. The Class R-I, Class R-II and Class R-III Certificates will be
issued in minimum Percentage Interests of 10% and integral multiples of
10% in excess thereof.
(c) Each Certificate shall, on original issue, be
authenticated by the Authenticating Agent upon the order of the Depositor.
No Certificate shall be entitled to any benefit under this Agreement, or
be valid for any purpose, unless there appears on such Certificate a
certificate of authentication substantially in the form provided for
herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication. At any time and from time to time
after the execution and delivery of this Agreement, the Depositor may
deliver Certificates to the Authenticating Agent for authentication and
the Authenticating Agent shall authenticate and deliver such Certificates
as in this Agreement provided and not otherwise. In the event that
additional Certificates need to be prepared at any time subsequent to the
Closing Date, the Depositor shall prepare, or cause to be prepared,
deliver, or cause to be delivered, at the Depositor's expense, any such
additional Certificates. With respect to the Class A, Class X, 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, on the Closing
65
Date, the Authenticating Agent upon the order of the Depositor shall
authenticate Book-Entry Certificates that are issued to a Clearing Agency
or its nominee as provided in Section 3.7 against payment of the purchase
price thereof.
SECTION 3.2 REGISTRATION. The Paying Agent shall be the
initial Certificate Registrar in respect of the Certificates and the
Certificate Registrar shall maintain books for the registration and for
the transfer of Certificates (the "Certificate Register"). The Certificate
Registrar may resign or be discharged or removed by the Trustee or the
Certificateholders, and a new successor may be appointed, in accordance
with the procedures and requirements set forth in Sections 7.6 and 7.7
hereof with respect to the resignation, discharge or removal of the
Trustee and the appointment of a successor Trustee. The Certificate
Registrar may appoint, by a written instrument delivered to the Holders
and the Trustee, any trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof
only upon presentation and surrender of such Certificate at the offices of
the Certificate Registrar (which shall be located, as of the Closing Date,
at Norwest Center, Sixth and Marquette, Minneapolis, Minnesota
55479-0113), duly endorsed or accompanied by a written instrument of
transfer duly executed by such Holder or such Holder's duly authorized
attorney in such form as shall be satisfactory to the Certificate
Registrar. Upon the transfer of any Certificate in accordance with the
preceding sentence, and subject to the restrictions set forth in the other
subsections of this Section 3.3, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver to the
transferee, one or more new Certificates of the same Class and evidencing,
in the aggregate, the same aggregate initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the
Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but
the Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
registration or transfer of Certificates. The Certificate Registrar may
decline to accept any request for a registration of transfer of any
Certificate during the period beginning five calendar days prior to any
Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for
any number of new Certificates of the same Class, in authorized
denominations, representing in the aggregate the same initial Certificate
Balance, initial Notional Amount or Percentage Interest, as the case may
be, as the Certificate surrendered, upon surrender of the Certificate to
be exchanged at the offices of the Certificate Registrar duly endorsed or
accompanied by a written instrument of exchange duly executed by such
Holder or such Holder's duly authorized attorney in such form as is
satisfactory to the Certificate Registrar. Certificates delivered upon any
such exchange will evidence the same obligations, and will be entitled to
the same rights and privileges, as the Certificates surrendered. No
service charge shall be made to a Certificateholder for any exchange of
Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any exchange of
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Certificates. Whenever any Certificates are so surrendered for exchange,
the Certificate Registrar shall execute and the Authenticating Agent shall
authenticate, date and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the
registration and/or qualification requirements of the Securities Act and
any applicable state securities laws, or is otherwise made in accordance
with the Securities Act and such state securities laws, as evidenced by
delivery of the documentation required by the next sentence. If a transfer
of any Non-Registered Certificate held as a Definitive Certificate is to
be made without registration under the Securities Act (other than in
connection with the initial issuance of the Certificates or a transfer of
such Non-Registered Certificate by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
a written undertaking by the transferor to reimburse the Trust for any
costs incurred by it in connection with the proposed transfer and either:
(i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit D-1 hereto and a
certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as
Exhibit D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the
Certificate Registrar to the effect that such transfer shall be made
without registration under the Securities Act, together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of
Counsel is based (such Opinion of Counsel shall not be an expense of the
Trust or of the Depositor, the Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such). If a
transfer of any interest in a Non-Registered Certificate that constitutes
a Book-Entry Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of any interest in such Non-Registered
Certificate by the Depositor or any of its Affiliates), then the
Certificate Owner desiring to effect such transfer shall be required to
obtain either (i) a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached as Exhibit D-3A hereto, or
(ii) an Opinion of Counsel to the effect that such transfer may be made
without registration under the Securities Act. If a holder of a Definitive
Certificate proposes to transfer such Certificate to a person who wishes
to take delivery thereof in book-entry form, the Certificate Registrar
will register such transfer (and appropriately instruct the Depository)
only upon delivery of the documentation described in the second sentence
of this paragraph.
Transfers of a beneficial interest in a Certificate
representing an interest in a Non-Registered Certificate that is not rated
in one of the top four rating categories by a nationally recognized
statistical rating organization to 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 provisions of the preceding paragraph.
None of the Depositor, the Fiscal Agent, 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 qualification. Any
Certificateholder or
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Certificate Owner desiring to effect a transfer of Non-Registered
Certificates or interests therein shall, and does hereby agree to,
indemnify the Depositor, each Underwriter, the Trustee, the Fiscal Agent,
the Servicer, the Special Servicer, the Paying Agent and the Certificate
Registrar against any liability that may result if the transfer is not
exempt from such registration or qualification or is not made in
accordance with such federal and state laws.
(d) No transfer of a Subordinate or Residual Certificate or
any interest therein shall be made (A) to any employee benefit plan
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 which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code (each, a
"Plan"), or (B) to any Person who is directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of,
as trustee of, or with "plan assets" of a Plan (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), unless, in the case of a Subordinate Certificate only, the
transfer will be exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Section III of
Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60,
which provides an exemption from the prohibited transaction rules for
certain transactions involving an insurance company general account. Any
such Plan or Person who acquires any Subordinate Certificate or interest
therein shall be deemed to represent to the Certificate Registrar, the
Depositor, the Servicer, the Paying Agent, the Trustee, the Special
Servicer, the Underwriters and the Placement Agent that the purchase and
holding of such Certificate or interest therein is exempt on the basis of
Section III of PTCE 95-60.
(e) (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)(F) below to deliver payments to a Person other than such
Person and to have irrevocably authorized the Certificate Registrar under
clause (ii)(G) below to negotiate the terms of any mandatory sale and to
execute all instruments of Transfer and to do all other things necessary
in connection with any such sale. The rights of such person acquiring any
Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and a United States Person and shall promptly
notify the Certificate Registrar of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of
any Ownership Interest in a Residual Certificate, the
Certificate Registrar shall require delivery to it, and no
Transfer of any Residual Certificate shall be registered until
the Certificate Registrar receives, an affidavit and agreement
substantially in the form attached hereto as Exhibit E-1 (a
"Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among
other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the
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Residual Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that is
not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor
to remain a Permitted Transferee, that it is a United States
Person, and that it has reviewed the provisions of this
Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee under clause
(B) above, if the Certificate Registrar has actual knowledge
that the proposed Transferee is not a Permitted Transferee or
is not a United States Person, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate shall agree (1) to require
a Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts to transfer its
Ownership Interest in such Residual Certificate and (2) not to
transfer its Ownership Interest in such Residual Certificate
unless it provides to the Certificate Registrar a certificate
substantially in the form attached hereto as Exhibit E-2
stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted Transferee
or is not a United States Person.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate that is a "pass-through
interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) or is holding an
Ownership Interest in a Residual Certificate on behalf of a
"pass-through interest holder", by purchasing an Ownership
Interest in such Certificate, agrees to give the Certificate
Registrar written notice of its status as such immediately
upon acquiring such Ownership Interest in a Residual
Certificate.
(F) If any purported Transferee shall become a
Holder of a Residual Certificate in violation of the
provisions of this Section 3.3(e) or if any Holder of a
Residual Certificate shall lose its status as a Permitted
Transferee or a United States Person, then the last preceding
Holder of such Residual Certificate that was in compliance
with the provisions of this Section 3.3(e) shall be restored,
to the extent permitted by law, to all rights and obligations
as Holder thereof retroactive to the date of registration of
such Transfer of such Residual Certificate. None of the
Trustee, the Fiscal Agent, the Servicer, the Special Servicer,
the Certificate Registrar or the Paying Agent shall be under
any liability to any Person for any registration of Transfer
of a Residual Certificate that is in fact not permitted by
this Section 3.3(e) or for making any payments due on such
Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of
this Agreement.
(G) If any purported Transferee shall become a
Holder of a Residual Certificate in violation of the
restrictions in this Section 3.3(e), or if any
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Holder of a Residual Certificate shall lose its status as a
Permitted Transferee or a United States Person, and to the
extent that the retroactive restoration of the rights and
obligations of the prior Holder of such Residual Certificate
as described in clause (ii)(F) above shall be invalid, illegal
or unenforceable, then the Certificate Registrar shall have
the right, without notice to the Holder or any prior Holder of
such Residual Certificate, but not the obligation, to sell
such Residual Certificate to a purchaser selected by the
Trustee on such terms as the Trustee may choose. Such
noncomplying Holder shall promptly endorse and deliver such
Residual Certificate in accordance with the instructions of
the Certificate Registrar. Such purchaser may be the
Certificate Registrar itself or any Affiliate of the
Certificate Registrar. The proceeds of such sale, net of the
commissions (which may include commissions payable to the
Certificate Registrar or its Affiliates), expenses and taxes
due, if any, will be remitted by the Certificate Registrar to
such noncomplying Holder. The terms and conditions of any sale
under this clause (ii)(G) shall be determined in the sole
discretion of the Certificate Registrar, and the Certificate
Registrar shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of
its exercise of such discretion.
The Servicer, on behalf of the Paying Agent, shall make available, upon
written request from the Paying Agent, to the Internal Revenue Service and
those Persons specified by the REMIC Provisions, all information necessary
to compute any tax imposed (A) as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is not a Permitted
Transferee, 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 and (B) as a result of any
regulated investment company, real estate investment trust, common trust
fund, partnership, trust, estate or organization described in Section 1381
of the Code that holds an Ownership Interest in a Residual Certificate
having as among its record holders at any time any Person which is not a
Permitted Transferee. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the Servicer and the Paying
Agent for providing such information.
The provisions of this Section 3.3(e) set forth prior to this subsection
(iv) may be modified, added to or eliminated, provided that there shall
have been delivered to the Trustee, the Certificate Registrar, the
Servicer and the Depositor the following:
(A) written notification from each Rating Agency
to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating
Agency to qualify, downgrade or withdraw its then current
rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, the Certificate Registrar and the
Depositor, to the effect that such modification of, addition
to or elimination of such provisions will not cause any of
REMIC I, REMIC II or REMIC III to (x) cease to qualify as a
REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Residual Certificate to a Person which is not
a Permitted Transferee, or cause a Person other than the
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prospective Transferee to be subject to a tax caused by the
Transfer of a Residual Certificate to a Person which is not a
Permitted Transferee.
(f) None of the Servicer, the Trustee, the Fiscal Agent, the
Paying Agent or the Certificate Registrar shall have any liability to the
Trust arising from a transfer of any Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 3.3;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the
proposed transferee does not meet the qualifications of a permitted Holder
of a Residual Certificate as set forth in Section 3.3(e). The Certificate
Registrar shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restriction on transfer or exchange of
Certificates or any interest therein imposed under this Article III or
under applicable law other than to require delivery of the certifications
and/or opinions described in this Article III; provided, however, that the
Certificate Registrar shall not register the transfer of a Residual
Certificate if it has actual knowledge that the proposed transferee does
not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar
shall have no liability for transfers (including without limitation
transfers made through the book-entry facilities of the Depository or
between or among Participants or Certificate Owners) made in violation of
applicable restrictions, provided that the Certificate Registrar has
satisfied its duties expressly set forth in Sections 3.3(c), 3.3(d) and
3.3(e).
(g) All Certificates surrendered for transfer and exchange
shall be physically cancelled by the Certificate Registrar, and the
Certificate Registrar shall hold such cancelled Certificates in accordance
with its standard procedures.
(h) The Certificate Registrar shall provide notice to the
Trustee, the Servicer, the Special Servicer and the Depositor of each
transfer of a Certificate and, upon written request, provide each such
Person with an updated copy of the Certificate Register within a
reasonable period of time following receipt of such request.
(i) Unless and until it is exchanged in whole for the
individual Certificates represented thereby, a Global Certificate
representing all of the Certificates of a Class may not be transferred,
except as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor
Clearing Agency or a nominee of such successor Clearing Agency, and no
such transfer to any such other Person may be registered; provided that
this subsection (i) shall not prohibit any transfer of a Certificate of a
Class that is issued in exchange for a Global Certificate of the same
Class pursuant to Section 3.9 below. Nothing in this subsection (i) shall
prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of
this Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (A) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (B)
except in the case of a mutilated Certificate so surrendered, there is
delivered to the Certificate Registrar such security or indemnity as may
be required by it to save it harmless, then, in the
71
absence of notice to the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall
execute, and the Authenticating Agent shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and interest in the Trust. In
connection with the issuance of any new Certificate under this Section
3.4, the Certificate Registrar may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses
of the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section 3.4 shall constitute complete
and indefeasible evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be
found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser, the Paying
Agent and any agent of the Servicer, the Special Servicer, the Fiscal
Agent, the Trustee, the Paying Agent or the Operating Adviser may treat
the Person in whose name any Certificate is registered as of the related
Record Date as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Servicer, the Special Servicer, the Fiscal
Agent, the Trustee, the Paying Agent, the Operating Adviser nor any agent
of the Servicer, the Special Servicer, the Fiscal Agent, the Trustee, the
Paying Agent or the Operating Adviser shall be affected by any notice to
the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. If three or more Certificateholders, a Certificateholder
holding all the Certificates of any Class of Certificates, the Servicer,
the Special Servicer, the Operating Adviser, the Paying Agent or the
Depositor (A) request in writing from the Certificate Registrar a list of
the names and addresses of Certificateholders and (B) in the case of a
request by Certificateholders, state that such Certificateholders desire
to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates, then the Certificate
Registrar shall, within ten Business Days after the receipt of such
request, afford such Certificateholders, the Servicer, the Special
Servicer, the Depositor, the Paying Agent or the Operating Adviser, as
applicable, access during normal business hours to a current list of the
Certificateholders. The expense of providing any such information
requested by such Person shall be borne by the party requesting such
information and shall not be borne by the Certificate Registrar or the
Trustee. Every Certificateholder, by receiving and holding a Certificate,
agrees that the Certificate Registrar and the Trustee shall not be held
accountable by reason of the disclosure of any such information as to the
list of the Certificateholders hereunder, regardless of the source from
which such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) Notwithstanding the foregoing, the Class A-1, Class A-2,
Class X, 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, upon original
issuance, each shall be issued in the form of one or more Certificates
representing the Book-Entry Certificates, to be delivered to the
Certificate Registrar, as custodian for The Depository Trust Company (the
"Depository"), the initial Clearing Agency,
72
by, or on behalf of, the Depositor; provided that, if any Class G, Class
H, Class I, Class J, Class K, Class L or Class M is no longer accepted for
trading through the PORTAL System, and therefore is no longer accepted for
settlement through the Depository, such Certificates shall thereafter be
issued and held in definitive form, substantially in the forms and with
such applicable legends as are set forth in the Exhibits hereto
corresponding to such Class. The Class R-I, Class R-II and Class R-III
Certificates will each be issuable in one or more registered, definitive
physical certificates. The Certificates shall initially be registered on
the Certificate Register in the name of Cede & Co., the nominee of the
Depository, as the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's
interest in the Certificates, except as provided in Section 3.9 or Section
3.3(c). Unless and until Definitive Certificates have been issued to the
Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full
force and effect with respect to each such Class;
(ii) the Depositor, the Servicer, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing
Agency for all purposes (including the making of distributions on
the Certificates) as the authorized representative of the
Certificate Owners;
(iii) to the extent that the provisions of this Section
3.7 conflict with any other provisions of this Agreement, the provisions
of this Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such
Class shall be exercised only through the Clearing Agency and the
applicable Participants and shall be limited to those established by law
and agreements between such Certificate Owners and the Clearing Agency
and/or the Participants. Pursuant to the Depository Agreement, unless and
until Definitive Certificates are issued pursuant to Section 3.9 or
Section 3.3(c), the initial Clearing Agency will make book-entry transfers
among the Participants and receive and transmit distributions of principal
and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring
or permitting actions with the consent of, or at the direction of, Holders
of the Certificates evidencing a specified percentage of the aggregate
unpaid principal amount of Certificates, such direction or consent may be
given by the Clearing Agency at the direction of Certificate Owners owning
Certificates evidencing the requisite percentage of principal amount of
Certificates. The Clearing Agency may take conflicting actions with
respect to the Certificates to the extent that such actions are taken on
behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or to Institutional
Accredited Investors shall be represented by the Rule 144A-IAI Global
Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of
Cede & Co. as nominee of the Depository. The Certificates evidenced by any
Rule 144A-IAI Global Certificate shall be
73
subject to certain restrictions on transfer as set forth in Section 3.3
hereof and shall bear legend(s) regarding such restrictions described
herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on
Regulation S shall be represented by the Regulation S Temporary Global
Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of
Cede & Co. as nominee of the Depository. Not earlier than the Release
Date, beneficial interests in any Regulation S Temporary Global
Certificate shall be exchangeable for beneficial interests in the
Regulation S Permanent Global Certificate for such Class. Beneficial
interests in any Regulation S Temporary Global Certificate may be held
only through Euroclear or Clearstream; provided, however, that such
interests may be exchanged for interests in the Rule 144A-IAI Global
Certificate for such Class in accordance with the certification
requirements described in Section 3.7(f). The Regulation S Permanent
Global Certificates shall be deposited with the Certificate Registrar, as
custodian for the Depository and registered in the name of Cede & Co. as
nominee of the Depository.
On or prior to the Release Date and on or prior to any
Distribution Date occurring prior to the Release Date, each Certificate
Owner of a Regulation S Temporary Global Certificate that holds a
beneficial interest therein on the Release Date or on any such
Distribution Date, as the case may be, must deliver to Euroclear or
Clearstream (as applicable) a Regulation S Certificate; provided, however,
that any Certificate Owner that holds a beneficial interest in a
Regulation S Temporary Global Certificate on the Release Date or on any
such Distribution Date that has previously delivered a Regulation S
Certificate to Euroclear or Clearstream with respect to its interest
therein does not need to deliver any subsequent Regulation S Certificate
(unless the certificate previously delivered is no longer true as of such
subsequent date, and such Certificate Owner must promptly notify Euroclear
or Clearstream, as applicable, thereof). Euroclear or Clearstream, as
applicable, shall be required to promptly deliver to the Certificate
Registrar a certificate substantially in the form of Exhibit I hereto to
the effect that it has received the requisite Regulation S Certificates
for each such Class, and no Certificate Owner (or transferee from any such
Certificate Owner) shall be entitled to receive an interest in the
Regulation S Permanent Global Certificate for such Class or any payment or
principal or interest with respect to its interest in such Regulation S
Temporary Global Certificate prior to the Certificate Registrar receiving
such certification from Euroclear or Clearstream with respect to the
portion of the Regulation S Temporary Global Certificate owned by such
Certificate Owner (and, with respect to an interest in the applicable
Regulation S Permanent Global Certificate, prior to the Release Date).
After the Release Date, distributions due with respect to any beneficial
interest in a Regulation S Temporary Global Certificate shall not be made
to the holders of such beneficial interests unless exchange for a
beneficial interest in the related Regulation S Permanent Global
Certificate is improperly withheld or refused. No interest in a Regulation
S Global Certificate may be held by or transferred to a U.S. Person (as
defined in Regulation S) except for exchanges for a beneficial interest in
the Rule 144A-IAI Global Certificate for such Class as described in
Section 3.7(f).
(e) Except in the limited circumstances described below in
Section 3.9 or as provided in Section 3.3(c), owners of beneficial
interests in Global Certificates shall not be
74
entitled to receive physical delivery of Definitive Certificates. The
Certificates are not issuable in bearer form. Upon the issuance of each
Global Certificate, the Depository or its custodian shall credit, on its
internal system, the respective principal amount of the individual
beneficial interests represented by such Global Certificate to the
accounts of Persons who have accounts with such Depository. Such accounts
initially shall be designated by or on behalf of the Placement Agents.
Ownership of beneficial interests in a Global Certificate shall be limited
to Customers or Persons who hold interests directly or indirectly through
Customers. Ownership of beneficial interests in the Global Certificates
shall be shown on, and the transfer of that ownership shall be effected
only through, records maintained by the Depository or its nominee (with
respect to interests of Customers) and the records of Customers (with
respect to interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered
holder of a Global Certificate, the Depository or such nominee, as the
case may be, shall be considered the sole owner and holder of the
Certificates represented by such Global Certificate for all purposes under
this Agreement and the Certificates, including, without limitation,
obtaining consents and waivers thereunder, and the Paying Agent and the
Certificate Registrar shall not be affected by any notice to the contrary.
Except under the circumstance described in Section 3.9, owners of
beneficial interests in a Global Certificate will not be entitled to have
any portions of such Global Certificate registered in their names, will
not receive or be entitled to receive physical delivery of Definitive
Certificates in certificated form and shall not be considered the owners
or holders of the Global Certificate (or any Certificates represented
thereby) under this Agreement or the Certificates. In addition, no
Certificate Owner of an interest in a Global Certificate shall be able to
transfer that interest except in accordance with the Depository's
applicable procedures (in addition to those under this Agreement and, if
applicable, those of Euroclear and Clearstream).
(f) Any holder of an interest in a Regulation S Global
Certificate shall have the right, upon prior written notice to the
Certificate Registrar, Euroclear or Clearstream, as applicable, and the
Depository, in the form of an Exchange Certification (substantially in the
form of Exhibit H attached hereto), to exchange all or a portion of such
interest (in authorized denominations as set forth in Section 3.1(b)) for
an equivalent interest in the Rule 144A-IAI Global Certificate for such
Class in connection with a transfer of its interest therein to a
transferee that is eligible to hold an interest in such Rule 144A-IAI
Global Certificate as described herein; provided, however, that no
Exchange Certification shall be required if any such exchange occurs after
the Release Date. Any holder of an interest in the Rule 144A-IAI Global
Certificate shall have the right, upon prior written notice to the
Certificate Registrar, the Depository and Euroclear or Clearstream, as
applicable, in the form of an Exchange Certification, to exchange all or a
portion of such interest (in authorized denominations as set forth in
Section 3.1(b)) for an equivalent interest in the Regulation S Global
Certificate for such Class in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in such
Regulation S Global Certificate as described herein; provided, however,
that if such exchange occurs prior to the Release Date, the transferee
shall acquire an interest in a Regulation S Temporary Global Certificate
only and shall be subject to all of the restrictions associated therewith
described in Section 3.7(d). Following receipt of any Exchange
Certification or request for transfer, as applicable, by the Certificate
Registrar: (i) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates being
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exchanged to reduce the stated principal amount of such Global Certificate
by the denominations of the Certificate or Certificates for which such
exchange is to be made, and (ii) the Certificate Registrar shall endorse
the schedule to any Global Certificate representing the Certificate or
Certificates for which such exchange is to be made to increase the stated
principal amount of such Global Certificate by the denominations of the
Certificate or Certificates being exchanged therefor. The form of the
Exchange Certification shall be available from the Certificate Registrar.
SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or
other communication to the Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued
to the related Certificateholders pursuant to Section 3.9, the Paying
Agent shall give all such notices and communications specified herein to
be given to Holders of the Book-Entry Certificates to the Clearing Agency
which shall give such notices and communications to the related
Participants in accordance with its applicable rules, regulations and
procedures.
SECTION 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of
beneficial interests in a Global Certificate or their nominees if (i) the
Depository notifies the Depositor and the Certificate Registrar in writing
that the Depository is unwilling or unable to continue as depositary for
such Global Certificate and a qualifying successor depositary is not
appointed by the Depositor within 90 days thereof, (ii) the Trustee has
instituted or caused to be instituted or has been directed to institute
any judicial proceeding in a court to enforce the rights of the
Certificateholders under this Agreement and under such Global Certificate
and the Trustee has been advised by counsel that in connection with such
proceeding it is necessary or advisable for the Trustee or its custodian
to obtain possession of such Global Certificate, or (iii) after the
occurrence of an Event of Default, Certificate Owners representing a
majority in aggregate outstanding Certificate Balance of such Global
Certificate advise the Depository through the Participants in writing (and
the Depository so advises the Depositor, the Certificate Registrar and the
Servicer in writing) that the continuation in global form of the
Certificates being evidenced by such Global Certificate is no longer in
their best interests; provided, that under no circumstances will
Definitive Certificates be issued to Certificate Owners of the Regulation
S Temporary Global Certificate. Upon notice of the occurrence of any of
the events described in the preceding sentence, the Certificate Registrar
shall notify the Depository and request the Depository to notify all
Certificate Owners, through the applicable Participants, of the occurrence
of the event and of the availability of Definitive Certificates to such
Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of the Global Certificates by the Clearing Agency, accompanied
by registration instructions from the Clearing Agency for registration,
the Certificate Registrar shall execute, and the Authenticating Agent
shall authenticate and deliver, the Definitive Certificates. None of the
Depositor, the Trustee, the Certificate Registrar, the Paying Agent or the
Fiscal Agent shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive
Certificates, all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable with
respect to
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such Definitive Certificates, and the Certificate Registrar, the Trustee
and the Paying Agent shall recognize the Holders of Definitive
Certificates as Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of
Definitive Certificates in accordance with the procedures set forth in
this Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made by the
Servicer and, if the Servicer does not make such Advances, by the Trustee,
and if the Trustee does not make such Advances, by the Fiscal Agent except
to the extent that the Servicer, the Trustee or the Fiscal Agent, as
applicable, determines in accordance with Section 4.4 below, that any such
Advance would be a Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY SERVICER.
(a) On or prior to the Advance Report Date, the Servicer shall
notify the Trustee and the Paying Agent if the P&I Advance Amount for such
Distribution Date is greater than zero, and the Servicer shall make a P&I
Advance of such amount no later than the Servicer Remittance Date. It is
understood that the obligation of the Servicer to make such P&I Advances
is mandatory and shall apply through any court appointed stay period or
similar payment delay resulting from any insolvency of the Mortgagor or
related bankruptcy, notwithstanding any other provision of this Agreement.
Notwithstanding the foregoing, the Servicer shall not be required to make
such P&I Advance, if the Servicer determines, in accordance with Section
4.4 below, that any such P&I Advance would be a Nonrecoverable Advance.
Such determination shall be conclusive and binding on the Trustee, the
Fiscal Agent and the Certificateholders. The Special Servicer shall not be
required to make P&I Advances under this Agreement.
(b) If the Servicer determines that there is a P&I Advance
Amount for a Distribution Date, the Servicer shall on the Servicer
Remittance Date either (A) deposit in the Certificate Account an amount
equal to the P&I Advance Amount or (B) utilize funds in the Certificate
Account being held for future distributions or withdrawals to make such
Advance. Any funds being held in the Certificate Account for future
distribution or withdrawal and so used shall be replaced by the Servicer
from its own funds by deposit in the Certificate Account on or before any
future Servicer Remittance Date to the extent that funds in the
Certificate Account on such Servicer Remittance Date shall be less than
payments to the Trustee or other Persons required to be made on such date.
SECTION 4.2 SERVICING ADVANCES. The Servicer and, if the
Servicer does not, the Trustee to the extent the Trustee receives notice
from the Paying Agent that such advance has not been made by the Servicer,
and if the Trustee does not, the Fiscal Agent shall make Servicing
Advances to the extent provided in this Agreement, except to the extent
that the Servicer, the Trustee or the Fiscal Agent, as applicable,
determines in accordance with Section 4.4 below, that
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any such Advance would be a Nonrecoverable Advance. Such determination by
the Servicer shall be conclusive and binding on the Trustee, the Fiscal
Agent and the Certificateholders. The Special Servicer shall not be
required to make Servicing Advances under this Agreement. Promptly after
discovering that the Servicer has failed to make a Servicing Advance, the
Paying Agent shall notify the Trustee in writing of the failure by the
Servicer to make such Servicing Advance.
SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT.
(a) To the extent that the Servicer fails to make a P&I
Advance by the Servicer Remittance Date (other than a P&I Advance that the
Servicer determines is a Nonrecoverable Advance), the Trustee shall make
such P&I Advance to the extent the Trustee receives written notice from
the Paying Agent not later than 10:00 a.m. (New York City time) on the
Distribution Date that such advance has not been made by the Servicer on
the Servicer Remittance Date unless the Trustee determines that such P&I
Advance, if made, would be a Nonrecoverable Advance. To the extent that
the Trustee is required hereunder to make P&I Advances, it shall deposit
the amount thereof in the Distribution Account by 1:00 p.m. (New York City
time) on such Distribution Date. The Paying Agent shall notify the Trustee
as soon as practicable, but not later than 10:00 a.m. (New York City time)
on the Distribution Date if the Servicer has failed to make a P&I Advance.
(b) To the extent that the Trustee fails to make a P&I Advance
required to be made by the Trustee hereunder on the Distribution Date
(other than a P&I Advance that the Servicer or the Trustee determines is a
Nonrecoverable Advance), the Fiscal Agent will advance such P&I Advance
unless the Fiscal Agent determines that any such P&I Advance, if made,
would be a Nonrecoverable Advance. To the extent that the Fiscal Agent is
required hereunder to make P&I Advances, it shall deposit the amount
thereof in the Distribution Account by 1:00 p.m. (New York City time) on
each such Distribution Date.
(c) To the extent that the Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other
than a Servicing Advance that the Servicer determines is a Nonrecoverable
Advance), and a Responsible Officer of the Trustee receives written notice
thereof from any party hereto, the Trustee shall make such Servicing
Advance promptly, but in any event, not later than five Business Days
after notice thereof, unless the Trustee determines that such Servicing
Advance, if made, would be a Nonrecoverable Advance.
(d) To the extent that the Trustee fails to make a Servicing
Advance required to be made by the Trustee hereunder by the later of (i)
the date such Servicing Advance is required to be made and (ii) five
Business Days after the date the Trustee has received notice pursuant to
subsection (c) above, that such Servicing Advance has not been made by the
Servicer (other than a Servicing Advance that the Servicer or the Trustee
has determined to be a Nonrecoverable Advance), the Fiscal Agent will
advance such Servicing Advance, unless the Fiscal Agent determines that
such Servicing Advance, if made, would be a Nonrecoverable Advance.
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The initial Trustee's failure to make any Advance required to
be made by it hereunder shall not constitute a default by the initial
Trustee hereunder if the initial Fiscal Agent makes such Advance at or
before the time when the Trustee was required to make such Advance.
(e) Pursuant to the 99-C1 Pooling Agreement, the 99-C1
Servicer is obligated to make advances with respect to the Pari Passu
Loan. Notwithstanding anything herein to the contrary, the Servicer, the
Trustee and the Fiscal Agent shall not be required to make any Advance
with respect to the Pari Passu Loan unless and until the Servicer, the
Trustee and the Fiscal Agent, as the case may be, has knowledge (or would
have had knowledge if it had acted in accordance with the Servicing
Standard) of any failure of the 99-C1 Servicer to make an advance required
under the 99-C1 Pooling and Servicing Agreement.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.
(a) If the Servicer determines at any time, in its sole
discretion, exercised in good faith, that any Advance previously made or
proposed Advance, if made, would constitute a Nonrecoverable Advance, such
determination shall be evidenced by an Officer's Certificate delivered to
the Trustee and the Paying Agent, and the Special Servicer by the Business
Day prior to the Distribution Date. Such Officer's Certificates shall set
forth the reasons for such determination of nonrecoverability, together
with, to the extent such information, report or document is in the
Servicer's possession, any related financial information such as related
income and expense statements, rent rolls, occupancy status, property
inspections and any appraisals performed in accordance with MAI standards
within the last 12 months on the Mortgaged Property, and, if such reports
are used by the Servicer to determine that any P&I Advance or Servicing
Advance, as applicable, would be a Nonrecoverable Advance, any engineers'
reports, environmental surveys, internal final valuations or other
information relevant thereto which support such determination. If the
Trustee or the Fiscal Agent, as applicable, determines at any time that
any portion of an Advance previously made or a portion of a proposed
Advance that the Trustee or the Fiscal Agent, as applicable, is required
to make pursuant to this Agreement, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an
Officer's Certificate of a Responsible Officer of the Trustee or the
Fiscal Agent, as applicable, delivered to the Depositor, the Servicer, the
Paying Agent and the Special Servicer similar to the Officer's Certificate
of the Servicer described in the prior sentence. The Trustee and the
Fiscal Agent shall not be required to make an Advance that the Servicer
has previously determined to be a Nonrecoverable Advance. Notwithstanding
any other provision of this Agreement, none of the Servicer, the Trustee
or the Fiscal Agent shall be obligated to, nor shall it, make any Advance
or make any payment that is designated in this Agreement to be an Advance,
if it determines in its good faith judgment that such Advance or such
payment (including interest accrued thereon at the Advance Rate) would be
a Nonrecoverable Advance. The Servicer's determination in accordance with
the above provisions shall be conclusive and binding on the Trustee, the
Fiscal Agent and the Certificateholders.
(b) The 99-C1 Servicer shall be entitled to reimbursement for
Pari Passu Loan Nonrecoverable P&I Advances and Pari Passu Loan
Nonrecoverable Servicing Advances (with, in each case, any accrued and
unpaid interest thereon provided for under the 99-C1 Pooling and Servicing
Agreement) in the manner set forth in Section 5.2.
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SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING
ADVANCES WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded
from the Servicer's, the Trustee's or the Fiscal Agent's own funds shall
accrue interest on a daily basis, at a per annum rate equal to the Advance
Rate, from the date such Advance was made until the date on which such
Advance has been reimbursed; provided that, with respect to any Mortgage
Loans whose Due Date plus any applicable grace period provided for in the
Mortgage Loan documents extends beyond the Servicer Remittance Date, any
P&I Advances shall accrue interest from the last day of any such grace
period. For purposes of determining whether a P&I Advance is outstanding,
amounts collected with respect to a particular Mortgage Loan or REO
Property and treated as collections of principal or interest shall be
applied first to reimburse the earliest P&I Advance and then each
succeeding P&I Advance to the extent not inconsistent with Section 4.6.
Except with respect to Specially Serviced Mortgage Loans, the Servicer
shall attempt to collect (but shall have no obligation to collect) Late
Fees in an amount sufficient to pay Advance Interest from the Mortgagor.
The Servicer shall be entitled to retain Late Fees paid by any Mortgagor
with respect to any Mortgage Loan (other than a Specially Serviced
Mortgage Loan, as to which the Special Servicer shall retain Late Fees) as
additional servicing compensation to the extent such Late Fees exceed
Advance Interest. The Special Servicer, with respect to any Specially
Serviced Mortgage Loan, shall (i) pay from any related Late Fees
outstanding and unpaid Advance Interest to the Servicer, the Trustee or
the Fiscal Agent, as applicable, and (ii) retain any remaining portion of
such Late Fees as additional Special Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan or
Specially Serviced Mortgage Loan or REO Property (including Advances later
determined to be Nonrecoverable Advances) shall be reimbursed to the
extent of the amounts identified to be applied therefor in Section 5.2.
The aggregate of the amounts available to repay Advances pursuant to
Sections 5.2 collected in any Collection Period with respect to Mortgage
Loans or Specially Serviced Mortgage Loans or REO Property shall be an
"Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on Mortgage
Loans, Specially Serviced Mortgage Loans or REO Property, the Available
Advance Reimbursement Amount with respect to any Determination Date shall
be applied to reimburse (i) the Fiscal Agent for any Advances outstanding
to the Fiscal Agent with respect to any of such Mortgage Loans or
Specially Serviced Mortgage Loans or REO Property, plus any Advance
Interest owed to the Fiscal Agent with respect to such Advances and then
(ii) the Trustee for any Advances outstanding to the Trustee with respect
to any of such Mortgage Loans or Specially Serviced Mortgage Loans or REO
Property, plus any Advance Interest owed to the Trustee with respect to
such Advances and then (iii) the Servicer for any Advances outstanding to
the Servicer with respect to any of such Mortgage Loans, plus any Advance
Interest owed to the Servicer with respect to such Advances. To the extent
that any Advance Interest payable to the Servicer, the Trustee or the
Fiscal Agent with respect to a Specially Serviced Mortgage Loan or REO
Property cannot be recovered from the related Mortgagor, the amount of
such Advance Interest shall be treated as a Servicing Advance and shall be
payable to the Fiscal Agent, the Trustee or the Servicer, as the case may
be, from amounts on deposit in the Certificate Account or the Distribution
Account pursuant to Section 5.2(a) or Section 5.3(b)(ii). The Servicer's,
the Fiscal
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Agent's and the Trustee's right of reimbursement under this Agreement for
Advances shall be prior to the rights of the Certificateholders to receive
any amounts recovered with respect to such Mortgage Loans or REO
Properties.
(c) Amounts applied to reimburse Advances shall first be
applied to reduce Advance Interest thereon and then to reduce the
outstanding amount of such Advances.
(d) To the extent that the Special Servicer incurs
out-of-pocket expenses, in accordance with the Servicing Standard, in
connection with servicing Specially Serviced Mortgage Loans, the Servicer
shall reimburse the Special Servicer for such expenditures within 30 days
after receiving an invoice and a report from the Special Servicer, subject
to Section 4.4. With respect to each Collection Period, the Special
Servicer shall deliver such invoice and report to the Servicer by the
following Determination Date. All such amounts reimbursed by the Servicer
shall be a Servicing Advance. In the event that the Servicer defaults
under its obligation to reimburse the Special Servicer hereunder or the
Servicer determines that such Servicing Advance, if made, would be a
Nonrecoverable Advance, the Special Servicer shall notify the Servicer and
the Paying Agent in writing of such nonpayment and the amount payable to
the Special Servicer and shall be entitled to receive reimbursement from
the Trust as an Additional Trust Expense. The Servicer, the Paying Agent
and the Trustee shall have no obligation to verify the amount payable to
the Special Servicer pursuant to this Section 4.6(d) and circumstances
surrounding the notice delivered by the Special Servicer pursuant to this
Section 4.6(d).
SECTION 4.7 FISCAL AGENT TERMINATION EVENT. "Fiscal Agent
Termination Event," wherever used herein, means any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the Trustee
when due any required Advances; or
(ii) A decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Fiscal Agent and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent or
relating to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization
statute, make an assignment for the benefit of its
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creditors, voluntarily suspend payment of its obligations, or take
any corporate action in furtherance of the foregoing; or
(v) Any Rating Agency shall indicate its intent to
reduce, qualify or withdraw, as applicable, the outstanding rating
of any Class of Certificates because the prospective financial
condition or capacity to make Advances of the Fiscal Agent is
insufficient to maintain such rating.
SECTION 4.8 PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of termination
given to the Fiscal Agent pursuant to Section 7.6(c), all authority, power
and rights of the Fiscal Agent under this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall terminate and a successor Fiscal
Agent, if necessary, shall be appointed by the Trustee, with the consent
of the Depositor; provided that Rating Agency Confirmation is obtained
with respect to the appointment of such successor Fiscal Agent, and in no
event shall the termination of the Fiscal Agent be effective until Rating
Agency Confirmation shall have been obtained with respect to a successor
fiscal agent. The Fiscal Agent agrees to cooperate with the Trustee in
effecting the termination of the Fiscal Agent's responsibilities and
rights hereunder as Fiscal Agent.
(b) Notwithstanding the termination of its activities as
Fiscal Agent, the terminated Fiscal Agent shall continue to be entitled to
reimbursement to the extent provided in Section 4.6 but only to the extent
such reimbursement relates to the period up to and including the date on
which the Fiscal Agent's termination is effective. The Fiscal Agent shall
be reimbursed for all amounts owed to it hereunder on or prior to the
effective date of its termination from amounts on deposit in the
Certificate Account.
SECTION 4.9 MERGER OR CONSOLIDATION OF FISCAL AGENT. Any
Person into which the Fiscal Agent may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Fiscal Agent shall be a party, or any Person
succeeding to the business of the Fiscal Agent, shall be the successor of
the Fiscal Agent hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided that (i) the successor to
the Fiscal Agent or resulting Person shall have a net worth of not less
than $100,000,000, (ii) such successor or resulting Person shall be
satisfactory to the Trustee, (iii) such successor or resulting Person
shall execute and deliver to the Trustee an agreement, in form and
substance satisfactory to the Trustee, which contains an assumption by
such Person of the due and punctual performance and observance of each
covenant and condition to be performed or observed by the Fiscal Agent
under this Agreement from and after the date of such agreement, (iv) the
Rating Agencies shall have provided Rating Agency Confirmation, and (v)
the Fiscal Agent shall deliver to the Trustee an Officer's Certificate and
an Opinion of Counsel acceptable to the Trustee (which opinion shall be at
the expense of the Fiscal Agent) stating that all conditions precedent to
such action under this Section 4.9 have been completed and such action is
permitted by and complies with the terms of this Section 4.9.
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SECTION 4.10 LIMITATION ON LIABILITY OF THE FISCAL AGENT AND
OTHERS. Neither the Fiscal Agent nor any of the directors, officers,
employees, agents or Controlling Persons of the Fiscal Agent shall be
under any liability to the Certificateholders, the Depositor or the
Trustee for any action taken or for refraining from the taking of any
action in good faith, and using reasonable business judgment pursuant to
this Agreement, or for errors in judgment; provided that this provision
shall not protect the Fiscal Agent or any such Person against any
liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in its performance of duties under
this Agreement. The Fiscal Agent and any director, officer, employee or
agent of the Fiscal Agent may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Fiscal Agent shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its obligations under this Agreement. In such event, all
legal expenses and costs of such action shall be expenses and costs of the
Trust, and the Fiscal Agent shall be entitled to be reimbursed therefor as
Servicing Advances as provided by this Agreement. The provisions of this
Section 4.10 shall survive the resignation or removal of the Fiscal Agent
and the termination of this Agreement.
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT. The Fiscal Agent
and each of its directors, officers, employees, agents and Controlling
Persons shall be indemnified by the Trust and held harmless against any
and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, liabilities, fees and
expenses incurred in connection with any legal action relating to this
Agreement other than any loss, liability or expense incurred by reason of
the Fiscal Agent's willful misfeasance, bad faith or negligence in the
performance of duties hereunder. The Depositor shall indemnify and hold
harmless the Fiscal Agent, its directors, officers, employees, agents and
Controlling Persons from and against any loss, claim, damage or liability,
joint or several, and any action in respect thereof, to which the Fiscal
Agent, its directors, officers, employees, agents or Controlling Person
may become subject under the 1933 Act, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Private Placement Memorandum or in the Preliminary Prospectus Supplement
and Final Prospectus Supplement or arises out of, or is based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein in light of
the circumstances under which they were made, not misleading and shall
reimburse the Fiscal Agent, its directors, officers, employees, agents or
Controlling Person for any legal and other expenses reasonably incurred by
the Fiscal Agent or any such director, officer, employee, agent or
Controlling Person in investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action. The Fiscal
Agent shall promptly notify the Depositor, the Servicer, the Special
Servicer, the Paying Agent and the Trustee if a claim is made by a third
party with respect to this Section 4.11 entitling the Fiscal Agent, its
directors, officers, employees, agents or Controlling Person to
indemnification hereunder, whereupon the Depositor shall assume the
defense of any such claim (with counsel reasonably satisfactory to the
Fiscal Agent) and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim.
Any failure to so notify the Depositor shall not affect any rights the
Fiscal Agent, its directors, officers, employees, agents or Controlling
Person may
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have to indemnification under this Section 4.11, unless the Depositor's
defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this
Agreement and the resignation or removal of the Fiscal Agent.
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, the Servicer shall open,
or cause to be opened, and shall thereafter maintain, or cause to be
maintained, a separate account or accounts, which accounts must be
Eligible Accounts, in the name of "Xxxxx Fargo Bank, National Association,
as Servicer for LaSalle Bank National Association, as Trustee for the
Holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-WF1" (the "Certificate
Account"). The Servicer shall inform the Trustee within five (5) Business
Days after the Certificate Account is moved to another location.
(b) On or prior to the date the Servicer shall first deposit
funds in a Certificate Account, the Servicer shall give to the Paying
Agent and the Trustee prior written notice of the name and address of the
depository institution(s) at which such accounts are maintained and the
account number of such accounts. The Servicer shall take such actions as
are necessary to cause the depository institution holding the Certificate
Account to hold such account in the name of the Servicer as provided in
Section 5.1(a), subject to the Servicer's (or its Sub-Servicer's) right to
direct payments and investments and its rights of withdrawal under this
Agreement.
(c) The Servicer shall deposit, or cause to be deposited, into
the Certificate Account on the Business Day following receipt (or, in the
case of unscheduled remittances of principal or interest, on the Business
Day following identification of the proper application of such amounts),
the following amounts received by it (including amounts remitted to the
Servicer by the Special Servicer from an REO Account pursuant to Section
9.14 or as Compensating Interest pursuant to Section 9.11), other than in
respect of interest and principal on the Mortgage Loans due on or before
the Cut-Off Date which shall be remitted to the Depositor (provided that
the Servicer may retain amounts otherwise payable to the Servicer as
provided in Section 5.2(a) rather than deposit them into the Certificate
Account):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled
Payments, and any Late Collections in respect thereof on the
Mortgage Loans;
(B) Interest: subject to subsection (d) hereof, all payments
on account of interest, including Compensating Interest paid
by the Special Servicer pursuant to Section 9.11, (minus any
portion of any such payment that is allocable to the period
prior to the Cut-Off Date which shall be remitted to the
Depositor and excluding Interest Reserve Amounts to be
deposited in the Interest Reserve Sub-account pursuant to
Section 5.1(d) below);
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(C) Liquidation Proceeds: all Liquidation Proceeds with
respect to the Mortgage Loans;
(D) Insurance Proceeds: all insurance proceeds other than
proceeds to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the
related Mortgagor in accordance with the Servicing Standard,
which proceeds shall be deposited by the Servicer into an
Escrow Account and not deposited in the Certificate Account;
(E) Condemnation Proceeds: all condemnation proceeds other
than proceeds to be applied to the restoration or repair of
the property subject to the related Mortgage or released to
the related Mortgagor in accordance with the Servicing
Standard, which proceeds shall be deposited by the Servicer
into an Escrow Account and not deposited in the Certificate
Account;
(F) REO Income: all REO Income received from the Special
Servicer;
(G) Investment Losses: any amounts required to be deposited by
the Servicer pursuant to Section 5.1(e) in connection with
losses realized on Eligible Investments with respect to funds
held in the Certificate Account;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account; and
(I) Other: all other amounts, including Yield Maintenance
Charges, required to deposited in the Certificate Account
pursuant to this Agreement, including Purchase Proceeds of any
Mortgage Loans repurchased by a Seller or substitution
shortfall amounts (as described in the fifth paragraph of
Section 2.3(a)) paid by a Seller in connection with the
substitution of any Qualifying Substitute Mortgage Loans.
Remittances from any REO Account to the Servicer for deposit
in the Certificate Account shall be made by the Special Servicer no later
than the Special Servicer Remittance Date.
(d) The Servicer, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each
year, shall deposit in the Interest Reserve Sub-account in respect of each
Interest Reserve Loan, an amount equal to one day's interest at the
related REMIC I Net Mortgage Rate on the Scheduled Principal Balance of
such Mortgage Loan as of the Due Date in the month in which such
Distribution Date occurs, to the extent a Scheduled Payment or P&I Advance
is timely made in respect thereof for such Due Date. In addition, on the
Closing Date, the Depositor shall make a deposit into the Interest Reserve
Sub-account in an amount equal to one day's interest at the related REMIC
I Net Mortgage Rate on the Scheduled Principal Balance as of the Cut-Off
Date of each Interest Reserve Loan.
(e) Funds in the Certificate Account may be invested and, if
invested, shall be invested by, and at the risk of, the Servicer in
Eligible Investments selected by the Servicer which
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shall mature, unless payable on demand, not later than the Business Day
immediately preceding the next Servicer Remittance Date, and any such
Eligible Investment shall not be sold or disposed of prior to its maturity
unless payable on demand. All such Eligible Investments shall be made in
the name of "LaSalle Bank National Association, as Trustee for the Holders
of the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-WF1." None of the
Depositor, the Mortgagors, the Paying Agent, the Trustee or the Fiscal
Agent shall be liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Servicer as additional servicing
compensation and shall be subject to its withdrawal at any time from time
to time. The amount of any losses incurred in respect of any such
investments shall be for the account of the Servicer which shall deposit
the amount of such loss (to the extent not offset by income from other
investments) deposited in the Certificate Account out of its own funds
immediately as realized. If the Servicer deposits in any Certificate
Account any amount not required to be deposited therein, it may at any
time withdraw such amount from the Certificate Account, any provision
herein to the contrary notwithstanding.
(f) Except as expressly provided otherwise in this Agreement,
if any default occurs in the making of a payment due under any Eligible
Investment, or if a default occurs in any other performance required under
any Eligible Investment, the Paying Agent on behalf of and at the
direction of the Trustee may take such action as may be appropriate to
enforce such payment or performance, including the institution and
prosecution of appropriate proceedings; provided, however, that if the
Servicer shall have deposited in the Certificate Account an amount equal
to all amounts due under any such Eligible Investment (net of anticipated
income or earnings thereon that would have been payable to the Servicer as
additional servicing compensation) the Servicer shall have the sole right
to enforce such payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by
the Mortgagor to the Servicer of amounts to be used for payment of Escrow
Amounts for the account of the Mortgagor. The Servicer shall deal with
these amounts in accordance with the Servicing Standard and the terms of
the related Mortgage Loans.
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT AND
INTEREST RESERVE SUB-ACCOUNT.
(a) The Servicer shall, from time to time, make withdrawals
from the Certificate Account and remit them by wire transfer on the
related Servicer Remittance Date in immediately available funds to the
account specified in this Section or otherwise (w) to such account as it
shall determine from time to time of amounts payable to the Servicer from
the Certificate Account pursuant to clauses (i), (ii), (iii), (iv), (vi),
(viii) and (ix) below; (x) to the account specified in writing by the
Paying Agent, the Trustee and the Fiscal Agent, as applicable, from time
to time of amounts payable to the Paying Agent, the Trustee and the Fiscal
Agent from the Certificate Account pursuant to clauses (ii), (iii), (v),
(vi), (xi), (xii) and (xiii) below; and (y) to the Special Servicer from
time to time of amounts payable to the Special Servicer from such
Certificate Account pursuant to clauses (i), (iv), (vi), and (vii) below
of the following amounts, from the amounts specified for the following
purposes:
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(i) Fees: the Servicer shall pay (A) to itself Late Fees (in
excess of Advance Interest) relating to Mortgage Loans which
are not Specially Serviced Mortgage Loans, Modification Fees
relating to Mortgage Loans which are not Specially Serviced
Mortgage Loans as provided in Section 8.18, 50% of any
assumption fees payable under Section 8.7(a), 100% of any
extension fees payable under Section 8.10 or other fees
payable to the Servicer hereunder and (B) directly to the
Special Servicer, 50% of any assumption fees as provided in
Section 8.7(a), 100% of any assumption fees as provided in
Section 8.7(b), all assumption fees relating to Specially
Serviced Mortgage Loans and Late Fees (in excess of Advance
Interest which the Servicer shall retain), Modification Fees
and other fees collected on Specially Serviced Mortgage Loans,
in each case from funds paid by the applicable Mortgagor to
the extent provided for herein (provided that the fees
specified in this clause (i) shall not be payable with respect
to the Pari Passu Loan);
(ii) Servicing Advances (including amounts later determined to
be Nonrecoverable Advances): (A) in the case of all Mortgage
Loans, to apply, pursuant to Section 4.6, (x) prior to a Final
Recovery Determination or determination in accordance with
Section 4.4 that any Advance is a Nonrecoverable Advance,
payments made by the Mortgagor of the amounts to which a
Servicing Advance relates or from REO Income from the related
REO Property or from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or Purchase Proceeds or (y) after
a Final Recovery Determination or determination that any
Advance is a Nonrecoverable Advance, any funds on deposit in
the Certificate Account (regardless of whether such amount was
recovered from the applicable Mortgage Loan or REO Property),
to reimburse the Fiscal Agent, the Trustee and itself, in that
order, as provided in, and subject to, Article IV hereof, for
any Servicing Advances (and Advance Interest thereon) made
with respect to a Mortgage Loan or REO Property and not
previously reimbursed and (B) in the case of the Pari Passu
Loan and from any funds on deposit in the Certificate Account,
to reimburse the 99-C1 Servicer for Pari Passu Loan
Nonrecoverable Servicing Advances and any accrued and unpaid
interest thereon provided for under the 99-C1 Pooling and
Servicing Agreement;
(iii) P&I Advances (including amounts later to be determined
to be Nonrecoverable Advances): (A) in the case of all
Mortgage Loans, to apply pursuant to Section 4.6, (x) prior to
a Final Recovery Determination or determination that any
Advance is a Nonrecoverable Advance, payments made by the
Mortgagor of the amounts to which a P&I Advance relates, or
REO Income from the related REO Property or from Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds or
Purchase Proceeds or (y) after a Final Recovery Determination
or determination in accordance with Section 4.4 that any
Advance is a
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Nonrecoverable Advance, for any Mortgage Loan, any funds on
deposit in the Certificate Account (regardless of whether such
amount was recovered from the applicable Mortgage Loan or REO
Property), to reimburse the Fiscal Agent, the Trustee and
itself, in that order, in accordance with Article IV hereof,
for any P&I Advances (and Advance Interest thereon) previously
made by it with respect to the related Mortgage Loan or REO
Property and not previously reimbursed and (B) in the case of
the Pari Passu Loan and from any funds on deposit in the
Certificate Account, to reimburse the 99-C1 Servicer for Pari
Passu Loan Nonrecoverable P&I Advances and any accrued and
unpaid interest thereon provided for under the 99-C1 Pooling
and Servicing Agreement;
(iv) Servicing Fee and Special Servicer Compensation: to pay
to itself the Servicing Fee (to the extent not previously
retained by the Servicer), to pay to the Special Servicer the
Special Servicing Fee, in each case, subject to reduction for
any Compensating Interest;
(v) Trustee Fee and Paying Agent Fee: to pay to the
Distribution Account for withdrawal by the Paying Agent an
amount equal to the Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto
any amounts specified herein to be Additional Trust Expenses
(at the time set forth herein or in the definition thereof),
the payment of which is not more specifically provided for in
this Agreement; provided that the Depositor shall not be
entitled to receive reimbursement for performing its duties
under this Agreement;
(vii) Liquidation Fees: to pay to the Special Servicer from
the Certificate Account, the amount certified by the Special
Servicer equal to the Liquidation Fee, to the extent provided
in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain
realized on the investment of funds deposited in such
Certificate Account relating to the Trust;
(ix) Prepayment Interest Excesses: to pay to the Servicer the
amount of the aggregate Prepayment Interest Excesses relating
to Mortgage Loans which are not Specially Serviced Mortgage
Loans (to the extent not offset by Prepayment Interest
Shortfalls relating to such Mortgage Loans); and to pay to the
Special Servicer the amount of the aggregate Prepayment
Interest Excesses relating to Specially Serviced Mortgage
Loans which have received voluntary Principal Prepayments (not
from Liquidation Proceeds or from modifications to Specially
Serviced Mortgage Loans), to the extent not offset by
Prepayment Interest Shortfalls relating to such Mortgage
Loans;
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(x) Correction of Errors: to withdraw funds deposited in the
Certificate Account in error;
(xi) Distribution Account: to make payment on each Servicer
Remittance Date of the remaining amounts in the Certificate
Account (including any Excess Interest) to the Distribution
Account (or, in the case of any Excess Interest, to the Excess
Interest Sub-account) other than amounts held for payment in
future periods or pursuant to clauses (xii) and (xiii) below;
(xii) Reserve Account: to make payment on each Servicer Remittance
Date to the Reserve Account, any Excess Liquidation Proceeds; and
(xiii) Clear and Terminate: to clear and terminate the
Certificate Account pursuant to Section 8.29.
The Servicer shall keep and maintain a separate accounting for
each Mortgage Loan for the purpose of justifying any withdrawal from the
Certificate Account.
(b) Scheduled Payments due in a Collection Period succeeding
the Collection Period relating to such Servicer Remittance Date,
Prepayments received after the related Collection Period, or other amounts
not distributable on the related Distribution Date, shall be held in the
Certificate Account and shall be distributed on the Servicer Remittance
Date or Dates to which such succeeding Collection Period or Periods
relate.
(c) On each Servicer Remittance Date in March of every year
commencing in March 2000, the Servicer shall withdraw the Interest Reserve
Amounts then on deposit in the Interest Reserve Sub-account and deposit
such amounts into the Distribution Account.
SECTION 5.3 DISTRIBUTION ACCOUNT AND RESERVE ACCOUNT.
(a) The Paying Agent shall establish, on or prior to the
Closing Date, and maintain in the name of the Trustee, (i) an account (the
"Distribution Account"), to be held in trust for the benefit of the
Holders until disbursed pursuant to the terms of this Agreement, titled:
"LaSalle Bank National Association, as Trustee, in trust for the benefit
of the Holders of Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-WF1,
Distribution Account" and (ii) an account (the "Reserve Account") to be
held in trust for the benefit of the holders of interests in the Trust
until disbursed pursuant to the terms of this Agreement, titled: "LaSalle
Bank National Association, as Trustee, in trust for the benefit of the
Holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-WF1, Reserve Account." The
Distribution Account and the Reserve Account shall be Eligible Accounts.
Funds in the Distribution Account and in the Reserve Account shall not be
invested. The Distribution Account and Reserve Account shall be held
separate and apart from and shall not be commingled with any other monies
including, without limitation, other monies of the Paying Agent held under
this Agreement.
(b) The Paying Agent shall deposit into the Distribution
Account or the Reserve Account, as applicable, on the Business Day
received all moneys remitted by the Servicer
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pursuant to this Agreement, including P&I Advances made by the Servicer,
the Trustee and the Fiscal Agent and all Excess Liquidation Proceeds. The
Paying Agent shall deposit amounts constituting collections of Excess
Interest into the Excess Interest Sub-account. On any Servicer Remittance
Date, the Servicer shall have no duty to remit to the Distribution Account
any amounts other than amounts held in the Certificate Account and
collected during the related Collection Period as provided in clauses (v)
and (xi) of Section 5.2 and the P&I Advance Amount, and, on the Servicer
Remittance Date occurring in March of any year, commencing in March 2000,
amounts held in the Interest Reserve Sub-account. The Paying Agent shall
make withdrawals from the Distribution Account (including the Excess
Interest Sub-account) and the Reserve Account only for the following
purposes:
(i) to withdraw amounts deposited in the Distribution Account
in error and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Servicer, the Special
Servicer, the Trustee (including the Trustee's Fee (other than that
portion thereof that constitutes the Paying Agent's Fee)) and the
Paying Agent (including the Paying Agent's Fee), or other expenses
or other amounts permitted to be paid hereunder and not previously
paid to such Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders pursuant
to Section 6.4; and
(iv) to clear and terminate the Distribution Account pursuant
to Section 10.2.
SECTION 5.4 PAYING AGENT REPORTS.
(a) On or prior to each Distribution Date, based solely on
information provided in monthly reports prepared by the Servicer and the
Special Servicer and delivered to the Paying Agent in an electronic format
reasonably acceptable to the Paying Agent, the Paying Agent will make
available to any interested person via the Paying Agent's internet website
initially located at "xxx.xxxxxxx.xxx/xxxx," (i) the Monthly
Certificateholders Report providing information relating to distributions
made on such Distribution Date with respect to the Certificates, (ii) the
Bond Level File and (iii) the Collateral Summary File. The Paying Agent
will also make its Monthly Certificateholders Report available to any
interested person via its fax-on-demand service which can be accessed by
calling (000) 000-0000.
On or prior to each Distribution Date, based solely on information
provided in monthly (or annual) reports prepared by the Servicer and the
Special Servicer and delivered to the Paying Agent in an electronic format
reasonably acceptable to the Paying Agent, the Paying Agent will make
available to any Privileged Person via the Paying Agent's internet website
initially located at "xxx.xxxxxxx.xxx/xxxx," (i) the Loan Periodic Update
File, the Loan Setup File, the Operating Statement Analysis Report, the
Property File (beginning with the Distribution Date in April 2000), any
Inspection Reports and the Servicer Watch List, (iii) the CMSA Report, and
(iv) as a convenience for interested parties (and not in furtherance of
the distribution thereof under the securities laws), the Prospectus
Supplement, the Prospectus and this Agreement. The
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Depositor may, at any time, direct the Paying Agent to make all or any of
such reports available to any interested persons.
The Paying Agent will make no representations or warranties as to
the accuracy or completeness of any report, document or other information
made available on its internet website and will assume no responsibility
therefor. In addition, the Paying Agent may disclaim responsibility for
any information distributed by the Paying Agent for which it is not the
original source. For assistance with the Paying Agent's internet website,
investors may call (000) 000-0000.
In connection with providing access to the Paying Agent's internet
website, the Paying Agent may require registration and the acceptance of a
disclaimer. Neither the Paying Agent nor the Servicer nor the Special
Servicer shall be liable for the dissemination of information in
accordance with this Agreement; provided, however, that this sentence
shall in no way limit the liability the Paying Agent may otherwise have in
the performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if
required by federal regulation, of any Certificateholder that is a savings
association, bank, or insurance company, the Paying Agent shall provide
(to the extent in its possession) to each such Certificateholder such
reports and access to non-privileged information and documentation
regarding the Mortgage Loans and the Certificates as such
Certificateholder may reasonably deem necessary to comply with applicable
regulations of the Office of Thrift Supervision or successor or other
regulatory authorities with respect to investment in the Certificates;
provided that the Paying Agent shall be entitled to be reimbursed by such
Certificateholder for the Paying Agent's actual expenses incurred in
providing such reports and access.
(c) Within a reasonable period of time after the end of each
calendar year, the Paying Agent shall send to each Person who at any time
during the calendar year was a Certificateholder of record, a report
summarizing the items (in clauses (i), (ii) and (iii) of the definition of
Monthly Certificateholders Report) provided to Certificateholders pursuant
to this Section 5.4 on an annual basis and such other customary
information as the Paying Agent xxxxx xxx be necessary or desirable for
such Holders to prepare their federal income tax returns.
(d) The Paying Agent shall afford the Rating Agencies, the
Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, the Operating Adviser, any Certificateholder, prospective
Certificate Owner or any Person reasonably designated by the Placement
Agent, or any Underwriter upon reasonable notice and during normal
business hours, reasonable access to all relevant, non-attorney privileged
records and documentation regarding the applicable Mortgage Loans, REO
Property and all other relevant matters relating to this Agreement, and
access to Responsible Officers of the Paying Agent.
(e) Copies (or computer diskettes or other digital or
electronic formats of such information if reasonably available in lieu of
paper copies) of any and all of the foregoing items of this Section 5.4
shall be made available by the Paying Agent upon request; provided,
however, that the Paying Agent shall be permitted to require payment by
the requesting party (other than the Depositor, the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Placement
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Agent or any Underwriter or any Rating Agency) of a sum sufficient to
cover the reasonable expenses actually incurred by the Paying Agent of
providing access or copies (including electronic or digital copies) of any
such information requested in accordance with the preceding sentence.
SECTION 5.5 PAYING AGENT TAX REPORTS. The Paying Agent shall
perform all reporting and other tax compliance duties that are the
responsibility of each REMIC Pool under the Code, REMIC Provisions, or
other compliance guidance issued by the Internal Revenue Service or any
state or local taxing authority. Consistent with this Pooling and
Servicing Agreement, the Paying Agent shall provide or cause to be
provided (i) to the United States Treasury or other Persons (including,
but not limited to, the transferor of a Class R-I, Class R-II or Class
R-III Certificate, to a Disqualified Organization or to an agent that has
acquired a Class R-I, Class R-II or Class R-III Certificate on behalf of a
Disqualified Organization) such information as is necessary for the
application of any tax relating to the transfer of a Class R-I, Class R-II
or Class R-III Certificate to any Disqualified Organization and (ii) to
the Certificateholders such information or reports as are required by the
Code or REMIC Provisions. The Servicer shall on a timely basis provide the
Paying Agent with such information concerning the Mortgage Loans as is
necessary for the preparation of the tax or information returns or
receipts of each REMIC Pool as the Paying Agent may reasonably request
from time to time. The Special Servicer is required to provide to the
Servicer all information in its possession with respect to the Specially
Serviced Mortgage Loans in order for the Servicer to comply with its
obligations under this Section 5.5. The Paying Agent shall be entitled to
conclusively rely on any such information provided to it by the Servicer
or the Special Servicer and shall have no obligation to verify any such
information.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY. Subject to Section
10.2(a), respecting the final distribution on the Certificates, on each
Distribution Date, the Paying Agent shall (1) first, withdraw from the
Distribution Account and pay to the Trustee and the Fiscal Agent any
unpaid fees, expenses and other amounts then required to be paid pursuant
to this Agreement, and then, to the Paying Agent, any unpaid fees,
expenses and other amounts then required to be paid pursuant to this
Agreement, and then at the written direction of the Servicer, withdraw
from the Distribution Account and pay to the Servicer and Special Servicer
any unpaid servicing compensation or other amounts currently required to
be paid pursuant to this Agreement (to the extent not previously withdrawn
by the Servicer from the Certificate Account), and (2) second, make
distributions in the manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by
check mailed to such Holder's address as it appears on the Certificate
Register of the Certificate Registrar or, upon written request to the
Paying Agent no later than the related Record Date (or upon standing
instructions given to the Paying Agent on the Closing Date or within five
days after any Record Date, which instructions may be revoked at any time
thereafter upon written notice to the Paying Agent five days after the
related Record Date) made by a Certificateholder by wire transfer in
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immediately available funds to an account specified in the request of such
Certificateholder; provided, that (i) remittances to the Paying Agent
shall be made by wire transfer of immediately available funds to the
Distribution Account and the Reserve Account; and (ii) the final
distribution in respect of any Certificate shall be made only upon
presentation and surrender of such Certificate at such location specified
by the Paying Agent in a notice delivered to Certificateholders pursuant
to Section 10.2(a). If any payment required to be made on the Certificates
is to be made on a day that is not a Business Day, then such payment will
be made on the next succeeding Business Day without compensation for such
delay. All distributions or allocations made with respect to Holders of
Certificates of a Class on each Distribution Date shall be made or
allocated among the outstanding Interests in such Class in proportion to
their respective initial Certificate Balances or Percentage Interests for
the Class X Certificates.
SECTION 6.2 REMIC I.
(a) On each Distribution Date, the Paying Agent shall be
deemed to distribute to the Trustee, as holder of the REMIC I Regular
Interests, for the following purposes and in the following order of
priority:
(i) from the portion of the Available Distribution
Amount attributable to interest collected or deemed collected on or with
respect to each Mortgage Loan or REO Property, Distributable Certificate
Interest to each Corresponding REMIC I Regular Interest and to REMIC I
Regular Interest X-1, the Class X-1 Interest Amount;
(ii) from the portion of the Available Distribution
Amount attributable to principal collected or deemed collected on or with
respect to each Mortgage Loan or REO Property, principal to the
Corresponding REMIC I Regular Interest, until the Certificate Balance
thereof is reduced to zero;
(iii) any remaining funds, to reimburse any Realized
Losses previously allocated to the REMIC I Regular Interests, plus
interest on such Realized Losses previously allocated thereto, at the
applicable Pass-Through Rates; and
(iv) thereafter, to the Class R-I Certificateholders.
SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Paying Agent shall be
deemed to distribute to the Trustee, as holder of the REMIC II Regular
Interests, for the following purposes and in the following order of
priority:
(i) an amount equal to Distributable Certificate
Interest for the Class A-1 Certificates, Class A-2 Certificates and Class
X Certificates to REMIC II Regular Interest A-1, REMIC II Regular Interest
A-2, REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II
Regular Interest D, REMIC II Regular Interest E, REMIC II Regular Interest
F, REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II
Regular Interest I, REMIC II Regular Interest J, REMIC II Regular Interest
K, REMIC II Regular Interest L, REMIC II Regular Interest M and REMIC II
Regular Interest X-1, divided among such REMIC II
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Regular Interests in proportion to (A) in the case of the REMIC II Regular
Interest A-1 and REMIC II Regular Interest A-2, the Accrued Certificate
Interest for such Distribution Date, (B) in the case of REMIC II Regular
Interest B, REMIC II Regular Interest C, REMIC II Regular Interest D,
REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II Regular
Interest G, REMIC II Regular Interest H, REMIC II Regular Interest I,
REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L and REMIC II Regular Interest M, the product of one-twelfth of
the Certificate Balance of such Interest and the related Class X Strip
Rate (if any) and (C) in the case of REMIC II Regular Interest X-1, the
Class X-1 Interest Amount;
(ii) to the REMIC II Regular Interest A-1, the Principal
Distribution Amount for such Distribution Date, until the Certificate
Balance of the REMIC II Regular Interest A-1 has been reduced to zero;
(iii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest A-1, to the REMIC II Regular Interest A-2,
the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof deemed to be distributed to the REMIC II Regular
Interest A-1), until the Certificate Balance of the REMIC II Regular
Interest A-2 has been reduced to zero;
(iv) to REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H,
REMIC II Regular Interest I, REMIC II Regular Interest J, REMIC II Regular
Interest K, REMIC II Regular Interest L and REMIC II Regular Interest M,
pro rata on the basis of their respective entitlements to reimbursement
described in this clause (iv), to reimburse any Realized Losses previously
allocated to REMIC II Regular Interest A-1, REMIC II Regular Interest A-2,
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F,
REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II Regular
Interest I, REMIC II Regular Interest J, REMIC II Regular Interest K,
REMIC II Regular Interest L and REMIC II Regular Interest M as a result of
the allocation of Realized Losses to the Class X Certificates plus
interest on such Realized Losses at the applicable Pass-Through Rate;
(v) to the REMIC II Regular Interest B, the remainder of
the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i)
above;
(vi) upon payment in full of the Certificate Balances of
the REMIC II Regular Interest A-2 and REMIC II Regular Interest A-2, to
the REMIC II Regular Interest B, the Principal Distribution Amount for
such Distribution Date (reduced by any portion thereof deemed to be
distributed to the REMIC II Regular Interest A-1 and REMIC II Regular
Interest A-2), until the Certificate Balance of the REMIC II Regular
Interest B has been reduced to zero;
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(vii) to the REMIC II Regular Interest B, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus
interest on such Realized Losses at the applicable Pass-Through Rate;
(viii) to the REMIC II Regular Interest C, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i)
above;
(ix) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest B, to the REMIC II Regular Interest C, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2, and REMIC II Regular Interest B),
until the Certificate Balance of the REMIC II Regular Interest C has been
reduced to zero;
(x) to the REMIC II Regular Interest C, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the applicable Pass-Through Rate;
(xi) to the REMIC II Regular Interest D, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i)
above;
(xii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest C, to the REMIC II Regular Interest D, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest B and REMIC
II Regular Interest C), until the Certificate Balance of the REMIC II
Regular Interest D has been reduced to zero;
(xiii) to the REMIC II Regular Interest D, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus
interest on such Realized Losses at the applicable Pass-Through Rate;
(xiv) to the REMIC II Regular Interest E, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i)
above;
(xv) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest D, to the REMIC II Regular Interest E, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest B, REMIC II
Regular Interest C and REMIC II Regular Interest D), until the Certificate
Balance of the REMIC II Regular Interest E has been reduced to zero;
(xvi) to the REMIC II Regular Interest E, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus
interest on such Realized Losses at the applicable Pass-Through Rate;
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(xvii) to the REMIC II Regular Interest F, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i)
above;
(xviii) upon payment in full of the Certificate Balance
of the REMIC II Regular Interest E, to the REMIC II Regular Interest F,
the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof deemed to be distributed to the REMIC II Regular
Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest B,
REMIC II Regular Interest C, REMIC II Regular Interest D and REMIC II
Regular Interest E), until the Certificate Balance of the REMIC II Regular
Interest F has been reduced to zero;
(xix) to the REMIC II Regular Interest F, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus
interest on such Realized Losses at the applicable Pass-Through Rate;
(xx) to the REMIC II Regular Interest G, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i)
above;
(xxi) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest F, to the REMIC II Regular Interest G, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest B, REMIC II
Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest
E and REMIC II Regular Interest F), until the Certificate Balance of the
REMIC II Regular Interest G has been reduced to zero;
(xxii) to the REMIC II Regular Interest G, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus
interest on such Realized Losses at the applicable Pass-Through Rate;
(xxiii) to the REMIC II Regular Interest H, the
remainder of the Distributable Certificate Interest for such Interest for
such Distribution Date to the extent not distributed pursuant to clause
(i) above;
(xxiv) upon payment in full of the Certificate Balance
of the REMIC II Regular Interest G, to the REMIC II Regular Interest H,
the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof deemed to be distributed to the REMIC II Regular
Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest B,
REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F and REMIC II Regular Interest G),
until the Certificate Balance of the REMIC II Regular Interest H has been
reduced to zero;
(xxv) to the REMIC II Regular Interest H, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus
interest on such Realized Losses at the applicable Pass-Through Rate;
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(xxvi) to the REMIC II Regular Interest I, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i)
above;
(xxvii) upon payment in full of the Certificate Balance
of the REMIC II Regular Interest H, to the REMIC II Regular Interest I,
the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof deemed to be distributed to the REMIC II Regular
Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest B,
REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G and
REMIC II Regular Interest H), until the Certificate Balance of the REMIC
II Regular Interest I has been reduced to zero;
(xxviii) to the REMIC II Regular Interest I, to
reimburse any unreimbursed Realized Losses previously allocated thereto,
plus interest on such Realized Losses at the applicable Pass-Through Rate;
(xxix) to the REMIC II Regular Interest J, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i)
above;
(xxx) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest I, to the REMIC II Regular Interest J, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest B, REMIC II
Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest
E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II
Regular Interest H and REMIC II Regular Interest I), until the Certificate
Balance of the REMIC II Regular Interest J has been reduced to zero;
(xxxi) to the REMIC II Regular Interest J, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus
interest on such Realized Losses at the applicable Pass-Through Rate;
(xxxii) to the REMIC II Regular Interest K, the
remainder of the Distributable Certificate Interest for such Interest for
such Distribution Date to the extent not distributed pursuant to clause
(i) above;
(xxxiii) upon payment in full of the Certificate Balance
of the REMIC II Regular Interest J to the REMIC II Regular Interest K, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest B, REMIC II
Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest
E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II
Regular Interest H, REMIC II Regular Interest I and REMIC II Regular
Interest J), until the Certificate Balance of the REMIC II Regular
Interest K has been reduced to zero;
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(xxxiv) to the REMIC II Regular Interest K, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus
interest on such Realized Losses at the applicable Pass-Through Rate;
(xxxv) to the REMIC II Regular Interest L, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i)
above;
(xxxvi) upon payment in full of the Certificate Balance
of the REMIC II Regular Interest K to the REMIC II Regular Interest L, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest B, REMIC II
Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest
E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II
Regular Interest H, REMIC II Regular Interest I, REMIC II Regular Interest
J and REMIC II Regular Interest K), until the Certificate Balance of the
REMIC II Regular Interest L has been reduced to zero;
(xxxvii) to the REMIC II Regular Interest L, to
reimburse any unreimbursed Realized Losses previously allocated thereto,
plus interest on such Realized Losses at the applicable Pass-Through Rate;
(xxxviii) to the REMIC II Regular Interest M, the
remainder of the Distributable Certificate Interest for such Interest for
such Distribution Date to the extent not distributed pursuant to clause
(i) above;
(xxxix) upon payment in full of the Certificate Balance
of the REMIC II Regular Interest L to the REMIC II Regular Interest M, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest B, REMIC II
Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest
E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II
Regular Interest H, REMIC II Regular Interest I, REMIC II Regular Interest
J, REMIC II Regular Interest K and REMIC II Regular Interest L), until the
Certificate Balance of the REMIC II Regular Interest M has been reduced to
zero;
(xl) to the REMIC II Regular Interest M, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus
interest on such Realized Losses at the applicable Pass-Through Rate; and
(xli) thereafter, to the Class R-II Certificateholders.
(b) On each Distribution Date, the Paying Agent shall have
deemed to distribute to the REMIC II Excess Interests, any Excess
Interest.
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SECTION 6.4 REMIC III.
(a) On each Distribution Date, the Paying Agent shall withdraw
from the Distribution Account an amount equal to the Available
Distribution Amount and shall distribute such amount (other than the
amount attributable to Excess Interest which shall be distributed in
accordance with Section 6.4(c)) in the following amounts and order of
priority:
(i) to the Holders of the Class A-1 Certificates, Class
A-2 Certificates and Class X Certificates, Distributable Certificate
Interest for such Distribution Date, pro rata in proportion to the
Distributable
Certificate Interest payable to each such Class;
(ii) to the Holders of the Class A-1 Certificates, the
Principal Distribution Amount for such Distribution Date, until the
Certificate Balance of the Class A-1 Certificates has been reduced to
zero;
(iii) upon payment in full of the Certificate Balance of
the Class A-1 Certificates, to the Holders of the Class A-2 Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof distributed to the Holders of the Class A-1
Certificates), until the Certificate Balance of the Class A-2 Certificates
has been reduced to zero;
(iv) to the Holders of the Class A Certificates and
Class X Certificates, pro rata on the basis of their respective
entitlements to reimbursement described in this clause (iv), to reimburse
any Realized Losses previously allocated thereto plus interest on such
Realized Losses at the applicable Pass-Through Rate;
(v) to the Holders of the Class B Certificates,
Distributable Certificate Interest for such Distribution Date;
(vi) upon payment in full of the Certificate Balance of
the Class A-2 Certificates, to the Holders of the Class B Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof distributed to the Holders of the Class A
Certificates), until the Certificate Balance of the Class B Certificates
has been reduced to zero;
(vii) to the Holders of the Class B Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the applicable Pass-Through Rate;
(viii) to the Holders of the Class C Certificates,
Distributable Certificate Interest for such Distribution Date;
(ix) upon payment in full of the Certificate Balance of
the Class B Certificates, to the Holders of the Class C Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof distributed to the Holders of the Class A and Class B
Certificates), until the Certificate Balance of the Class C Certificates
has been reduced to zero;
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(x) to the Holders of the Class C Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the applicable Pass-Through Rate;
(xi) to the Holders of the Class D Certificates,
Distributable Certificate Interest for such Distribution Date;
(xii) upon payment in full of the Certificate Balance of
the Class C Certificates, to the Holders of the Class D Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof distributed to the Holders of the Class A, Class B and
Class C Certificates), until the Certificate Balance of the Class D
Certificates has been reduced to zero;
(xiii) to the Holders of the Class D Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the applicable Pass-Through Rate;
(xiv) to the Holders of the Class E Certificates,
Distributable Certificate Interest for such Distribution Date;
(xv) upon payment in full of the Certificate Balance of
the Class D Certificates, to the Holders of the Class E Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof distributed to the Holders of the Class A, Class B, Class
C and Class D Certificates), until the Certificate Balance of the Class E
Certificates has been reduced to zero;
(xvi) to the Holders of the Class E Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the applicable Pass-Through Rate;
(xvii) to the Holders of the Class F Certificates,
Distributable Certificate Interest for such Distribution Date;
(xviii) upon payment in full of the Certificate Balance
of the Class E Certificates, to the Holders of the Class F Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof distributed to the Holders of the Class A, Class B,
Class C, Class D and Class E Certificates), until the Certificate Balance
of the Class F Certificates has been reduced to zero;
(xix) to the Holders of the Class F Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the applicable Pass-Through Rate;
(xx) to the Holders of the Class G Certificates,
Distributable Certificate Interest for such Distribution Date;
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(xxi) upon payment in full of the Certificate Balance of
the Class F Certificates, to the Holders of the Class G Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof distributed to the Holders of the Class A, Class B, Class
C, Class D, Class E and Class F Certificates), until the Certificate
Balance of the Class G Certificates has been reduced to zero;
(xxii) to the Holders of the Class G Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the Pass-Through Rate;
(xxiii) to the Holders of the Class H Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxiv) upon payment in full of the Certificate Balance
of the Class G Certificates, to the Holders of the Class H Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof distributed to the Holders of the Class A, Class B,
Class C, Class D, Class E, Class F and Class G Certificates), until the
Certificate Balance of the Class H Certificates has been reduced to zero;
(xxv) to the Holders of the Class H Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the Pass-Through Rate;
(xxvi) to the Holders of the Class I Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxvii) upon payment in full of the Certificate Balance
of the Class H Certificates, to the Holders of the Class I Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof distributed to the Holders of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H Certificates), until
the Certificate Balance of the Class I Certificates has been reduced to
zero;
(xxviii) to the Holders of the Class I Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the Pass-Through Rate;
(xxix) to the Holders of the Class J Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxx) upon payment in full of the Certificate Balance of
the Class I Certificates, to the Holders of the Class J Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by a any
portion thereof distributed to the Holders of the Class A, Class B, Class
C, Class D, Class E, Class F, Class G, Class H and Class I Certificates),
until the Certificate Balance of the Class J Certificates has been reduced
to zero;
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(xxxi) to the Holders of the Class J Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the Pass-Through Rate;
(xxxii) to the Holders of the Class K Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxiii) upon payment in full of the Certificate Balance
of the Class J Certificates, to the Holders of the Class K Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof distributed to the Holders of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class I and Class J
Certificates), until the Certificate Balance of the Class K Certificates
has been reduced to zero;
(xxxiv) to the Holders of the Class K Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the Pass-Through Rate;
(xxxv) to the Holders of the Class L Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxvi) upon payment in full of the Certificate Balance
of the Class K Certificates, to the Holders of the Class L Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof distributed to the Holders of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class I, Class J and
Class K Certificates), until the Certificate Balance of the Class L
Certificates has been reduced to zero;
(xxxvii) to the Holders of the Class L Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the Pass-Through Rate;
(xxxviii) to the Holders of the Class M Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxix) upon payment in full of the Certificate Balance
of the Class L Certificates, to the Holders of the Class M Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof distributed to the Holders of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class I, Class J,
Class K and Class L Certificates), until the Certificate Balance of the
Class M Certificates has been reduced to zero;
(xl) to the Holders of the Class M Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the Pass-Through Rate; and
(xli) to the Holders of the Class R-III Certificates at
such time as the Certificate Balances of all Classes of REMIC Regular
Certificates have been reduced to zero, and Realized Losses previously
allocated to each Holder have been reimbursed to the Holders of the REMIC
Regular Certificates, any amounts remaining on deposit in the Distribution
Account.
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Notwithstanding the foregoing, on each Distribution Date
occurring on or after the earliest date, if any, upon which the
Certificate Balances of all Classes of Subordinate Certificates have been
reduced to zero or the aggregate Appraisal Reduction in effect is greater
than or equal to Certificate Balances of all Classes of Subordinate
Certificates, the Principal Distribution Amount will be distributed,
first, to the Holders of the Class A-1 and Class A-2 Certificates, pro
rata, based on their respective Certificate Balances, in reduction of
their respective Certificate Balances, until the Certificate Balance of
each such Class is reduced to zero; and, second, to the Holders of the
Class A-1 and Class A-2 Certificates, pro rata, based on their respective
entitlements to reimbursement, for the unreimbursed amount of Realized
Losses and Expense Losses previously allocated to such Classes.
(b) On each Distribution Date, the Paying Agent shall withdraw
amounts in the Reserve Account and shall pay the Certificateholders on
such Distribution Date such amounts in the following priority:
(i) first, to reimburse the Holders of the Principal
Balance Certificates (in order of alphabetical Class designation) for any,
and to the extent of, Realized Losses or Expense Losses previously
allocated to them; and
(ii) second, upon the reduction of the aggregate
Certificate Balance of the Principal Balance Certificates to zero, to pay
any amounts remaining on deposit in such account to the Special Servicer
as additional Special Servicer compensation.
(c) On each Distribution Date, the Paying Agent shall withdraw
from the Excess Interest Sub-account any Excess Interest on deposit
therein, and the Paying Agent shall pay such Excess Interest on such
Distribution Date to the Class M Certificates (even if the Certificate
Balance of the Class M Certificates has been reduced to zero for any
reason).
SECTION 6.5 ALLOCATION OF REALIZED LOSSES AND SHORTFALLS DUE TO
NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan
realized during the related Collection Period shall reduce the Certificate
Balance of the Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan
shall be allocated to reduce first, Distributable Certificate Interest for
such Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interest; and to the extent that such
Realized Interest Loss exceeds such amount, shall be treated as an Expense
Loss;
(iii) Expense Losses (not otherwise applied above)
realized during the related Collection Period shall be allocated among the
REMIC I Regular Interests in proportion to their Certificate Balances
after making all other allocations for such Distribution Date.
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(b) In the event that the Servicer, the Trustee or the Fiscal
Agent, determines that an Advance previously made by it is a
Nonrecoverable Advance and the Servicer withdraws the amount of such
Advance from the Certificate Account pursuant to Section 5.2(a) hereof
(which amount shall be treated as an Available Advance Reimbursement
Amount pursuant to Section 4.6), it shall determine the portion of the
amount so withdrawn that is attributable to (w) interest on the related
Mortgage Loan; (x) principal on the related Mortgage Loan; (y) Servicing
Advances; and (z) Advance Interest. The portion of the amount so withdrawn
from the Certificate Account that is allocable to:
(i) amounts previously advanced as interest on the
related Mortgage Loan shall reduce the Available Distribution Amount for
REMIC I and shall be allocated to reduce the amount of interest paid on
each REMIC I Regular Interest on such Distribution Date in proportion to
Distributable Certificate Interest otherwise payable thereon, and shall
result in Unpaid Interest on each such REMIC I Regular Interest;
(ii) amounts previously advanced as principal on the
related Mortgage Loan shall reduce the Available Distribution Amount for
REMIC I and shall be allocated to reduce the principal paid on each REMIC
I Regular Interest on which principal would otherwise be paid on such
Distribution Date, in proportion to such principal payments; and
(iii) amounts previously advanced as Servicing Advances,
as well as Advance Interest owing to the Servicer, the Trustee or the
Fiscal Agent with respect to Advances shall be treated as Expense Losses
and allocated in accordance with Section 6.5(a)(iii) above.
(c) At such time as a Final Recovery Determination is made
with respect to any Mortgage Loan with respect to which the Servicer
previously had withdrawn amounts from the Certificate Account following a
determination that Advances previously made were Nonrecoverable Advances,
or at such other time as a Realized Loss shall occur with respect to any
such Mortgage Loan, the Servicer shall compute the Realized Loss with
respect to such Mortgage Loan and the Paying Agent shall allocate such
Realized Loss as follows:
(i) to the extent that any Realized Principal Loss does
not exceed the Certificate Balance on the Corresponding REMIC I Regular
Interest, such Realized Principal Loss shall be allocated to such REMIC I
Regular Interest; and to the extent that any Realized Principal Loss
exceeds the Certificate Balance of the Corresponding REMIC I Regular
Interest, such Realized Principal Loss shall be allocated to the other
Corresponding REMIC I Regular Interests with respect to which
distributions of principal were reduced pursuant to Section 6.5(b)(i)
above, in proportion to the amount of such reductions;
(ii) any Realized Interest Loss shall be allocated to
the Corresponding REMIC I Interest to the extent of Unpaid Interest
thereon and any remaining portion of the Realized Interest Loss shall be
allocated as a Realized Interest Loss on each REMIC I Regular Interest
with respect to which Unpaid Interest was created pursuant to Section
6.5(b)(ii) above in proportion to the amount of Unpaid Interest resulting
from the reduction in distributions of interest on such REMIC I Regular
Interest pursuant to Section 6.5(b)(ii) above;
104
(iii) the portion of the amount recovered on the
Mortgage Loan with respect to which amounts were withdrawn from the
Certificate Account that are treated as recoveries of principal on the
Mortgage Loan shall be applied first, to make payments of principal on the
Corresponding REMIC I Regular Interest until the Certificate Balance
thereof is reduced to zero and thereafter to make payments of principal to
the Corresponding REMIC I Regular Interests with respect to which
principal distributions were reduced pursuant to Section 6.5(b)(i) above,
in proportion to the amount of such reductions;
(iv) the portion of the amount recovered on the Mortgage
Loan with respect to which amounts were withdrawn from the Certificate
Account that are treated as recoveries of interest on the Mortgage Loan
shall be applied first, to make payments of Unpaid Interest on the
Corresponding REMIC I Regular Interest and thereafter to make payments of
interest on each REMIC I Interest with respect to which Unpaid Interest
was created pursuant to Section 6.5(b)(ii) above in proportion to the
amount of Unpaid Interest resulting from the reduction in distributions of
interest on such REMIC I Regular Interest pursuant to Section 6.5(b)(ii)
above; and
(v) the portion of the amount recovered on the Mortgage
Loan with respect to which amounts were withdrawn from the Certificate
Account that is treated as a recovery of expenses on the Mortgage Loan
shall be applied in reimbursement of Expense Losses on each REMIC I
Regular Interest with respect to which an Expense Loss was created
pursuant to Section 6.5(b)(iii) above in proportion to the amount of the
Expense Loss allocated thereto pursuant to Section 6.5(b)(iii) above.
(d) REMIC II. On each Distribution Date, all Realized Losses
allocated to the REMIC I Interests for such Distribution Date (or for
prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the Corresponding REMIC II Regular Interests in the amounts
and in the manner as will be allocated to the REMIC Regular Certificates
relating thereto pursuant to Section 6.5(e). Realized Losses allocated to
the Class X Certificates shall be allocated among REMIC II Regular
Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest B,
REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G,
REMIC II Regular Interest H, REMIC II Regular Interest I, REMIC II Regular
Interest J, REMIC II Regular Interest K, REMIC II Regular Interest L and
REMIC II Regular Interest M pro rata based on the product of the
Certificate Balance of such REMIC II Regular Interest and the Class X
Strip Rate (if any) applicable to the Class of Certificates relating to
such REMIC II Regular Interest.
(e) REMIC III. On each Distribution Date, all Realized Losses
on the REMIC III Regular Interests that constitute Principal Losses for
such Distribution Date (or for prior Distribution Dates, to the extent not
previously allocated) shall be allocated to the REMIC Regular Certificates
(other than the Class X Certificates) in Reverse Sequential Order, with
such reductions being allocated among the Class A-1 Certificates and Class
A-2 Certificates, pro rata, in each case reducing the Certificate Balance
of such Class until such Certificate Balance is reduced to zero.
105
On each Distribution Date, all Realized Interest Losses for
such Distribution Date (or for prior Distribution Dates, to the extent not
previously allocated) shall be allocated to the REMIC Regular Certificates
in Reverse Sequential Order, with such reductions being allocated among
the Class A-1 Certificates, Class A-2 Certificates and Class X
Certificates, pro rata, in each case reducing (A) Unpaid Interest owing to
such Class to the extent thereof; (B) Distributable Certificate Interest
owing to such Class; and (C) the Certificate Balance or Notional Amount of
such Class, as applicable, until such Certificate Balance or Notional
Amount, as applicable, is reduced to zero.
Notwithstanding the foregoing, allocations of Realized
Principal Losses and Realized Interest Losses shall not reduce the
aggregate Certificate Balance of the REMIC Regular Certificates below the
sum of the aggregate Certificate Balances of the REMIC II Regular
Interests.
SECTION 6.6 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS AND
NET AGGREGATE BALLOON INTEREST SHORTFALLS. On each Distribution Date, any
Net Aggregate Prepayment Interest Shortfalls and Net Aggregate Balloon
Interest Shortfalls in REMIC I, shall be allocated among the REMIC I
Regular Interests, pro rata in proportion to the Accrued Certificate
Interest for each such REMIC I Regular Interest for such Distribution Date
and shall reduce Distributable Certificate Interest for each such
Interest. On each Distribution Date, any Net Aggregate Prepayment Interest
Shortfalls and Net Aggregate Balloon Interest Shortfalls in REMIC II shall
be allocated among the REMIC II Regular Interests, pro rata in proportion
to the Accrued Certificate Interest for each such REMIC II Regular
Interest for such Distribution Date and shall reduce Distributable
Certificate Interest for each such Interest. On each Distribution Date,
the amount of any Net Aggregate Prepayment Interest Shortfalls and Net
Aggregate Balloon Interest Shortfalls on the REMIC III Regular Interests
in the aggregate shall be allocated to each Class of Certificates, pro
rata, in proportion to the amount of Accrued Certificate Interest payable
to such Class of Certificates on such Distribution Date, in each case
reducing interest otherwise payable thereon. The amount of Net Aggregate
Prepayment Interest Shortfalls and Net Aggregate Balloon Interest
Shortfalls allocated to a Class of Certificates pursuant to the preceding
sentence shall reduce the Distributable Certificate Interest for such
Class for such Distribution Date.
SECTION 6.7 ADJUSTMENT OF SERVICING FEES. The total Servicing
Fee and Special Servicing Fee payable to the Servicer and the Special
Servicer, respectively, shall be adjusted as provided in Section 8.10(c)
and Section 9.11 herein. Any amount retained by REMIC I as a result of a
reduction of the Servicing Fee and the Special Servicing Fee shall be
treated as interest collected with respect to the prepaid Mortgage Loans
with respect to which the Servicing Fee or Special Servicing Fee
adjustment occurs.
SECTION 6.8 APPRAISAL REDUCTIONS.
Not later than the date on which an Appraisal Event occurs,
the Special Servicer shall have obtained (A) an Appraisal of the Mortgaged
Property securing such Mortgage Loan, if the Scheduled Principal Balance
exceeds $1,000,000 or (B) at the option of the Special Servicer, if such
Scheduled Principal Balance is less than or equal to $1,000,000, either an
internal
106
valuation prepared by the Special Servicer in accordance with MAI
Standards or an Appraisal which in all cases shall be completed as of the
date that such Mortgage Loan becomes a Required Appraisal Loan; provided
that if the Special Servicer had completed or obtained an Appraisal or
internal valuation within the immediately prior 12 months, the Special
Servicer may rely on such Appraisal or internal valuation and shall have
no duty to prepare a new Appraisal or internal valuation, unless such
reliance would not be in accordance with the Servicing Standard; provided,
further, that if the Special Servicer is required to obtain an MAI
appraisal of a Mortgaged Property after receipt of the notice described in
clause (ii) of the definition of Appraisal Event, such appraisal will be
obtained no later than 60 days after receipt of such notice and an
internal valuation will be obtained no later than 30 days after receipt of
such notice. Such Appraisal or valuation shall be conducted in accordance
with the definition of "market value" as set forth in 12 C.F.R. ss. 225.65
and shall be updated at least annually to the extent such Mortgage Loan
remains a Required Appraisal Loan. The cost of any such Appraisal or
valuation, if not performed by the Special Servicer, shall be an expense
of the Trust and may be paid from REO Income, treated as an Additional
Trust Expense or, to the extent collections from such related Mortgage
Loan does not cover the expense, such unpaid expense shall be advanced by
the Servicer in which event it shall be treated as a Servicing Advance,
subject to Section 4.4 hereof. The Servicer, based on the Appraisal or
internal valuation provided to it by the Special Servicer, shall calculate
any Appraisal Reduction. The Servicer shall calculate or recalculate the
Appraisal Reduction for any Mortgage Loan based on updated Appraisals or
internal valuations provided from time to time to it by the Special
Servicer.
SECTION 6.9 COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
Notwithstanding any other provision of this Agreement to the contrary, the
Paying Agent shall comply with all federal withholding requirements with
respect to payments to Certificateholders of interest, original issue
discount, or other amounts that the Paying Agent reasonably believes are
applicable under the Code. The consent of Certificateholders shall not be
required for any such withholding and any amount so withheld shall be
regarded as distributed to the related Certificateholders for purposes of
this Agreement. In the event the Paying Agent withholds any amount from
payments made to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate to such Certificateholder
the amount withheld.
SECTION 6.10 YIELD MAINTENANCE CHARGES.
On each Distribution Date, the Paying Agent shall be deemed to
distribute to the Trustee, as holder of the REMIC I Regular Interests, any
Yield Maintenance Charges collected on or with respect to the Mortgage
Loans. On each Distribution Date, the Paying Agent shall be deemed to
distribute to the Trustee, as holder of the REMIC II Regular Interests,
any Yield Maintenance Charges deemed distributed to the REMIC I Regular
Interests, to be deemed distributed to the REMIC II Regular Interest then
entitled to distributions of principal from the Principal Distribution
Amount (or, if more than one Class of such REMIC II Regular Interests is
entitled to distributions of principal from the Principal Distribution
Amount, such Yield Maintenance Charges shall be deemed to be allocated
among such Classes in accordance with the distributions thereof made to
the corresponding REMIC Regular Interests). Any Yield Maintenance Charges
collected with respect to a Mortgage Loan during any particular Collection
Period will be distributed to the REMIC Regular Certificates on the
following Distribution Date
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as follows: The Holders of the respective Classes of Principal Balance
Certificates, other than the Class G, Class H, Class I, Class J, Class K,
Class L and Class M Certificates, then entitled to distributions of
principal from the Principal Distribution Amount for such Distribution
Date, will be entitled to an amount equal to the product of (a) a fraction
the numerator of which is the amount distributed as principal to such
Class on such Distribution Date and the denominator of which is the total
amount distributed as principal to all Classes of Certificates on such
Distribution Date, (b) the Base Interest Fraction for the related
principal prepayment and such Class of Certificates and (c) the aggregate
amount of Yield Maintenance Charges collected on such principal prepayment
during the related Collection Period. Any Yield Maintenance Charges
received during the related Collection Period with respect to such
Mortgage Loans remaining after such distributions shall be distributed on
the Class X Certificates. No Yield Maintenance Charges will be distributed
to holders of the Class G, H, I, J, K, L, M or Residual Certificates. The
Trustee shall not be responsible for the Paying Agent's failure to comply
with any related withholding requirements.
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT
SECTION 7.1 DUTIES OF TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT.
(a) The Trustee, the Fiscal Agent and the Paying Agent each
shall undertake to perform only those duties as are specifically set forth
in this Agreement and no implied covenants or obligations shall be read
into this Agreement against the Trustee, the Fiscal Agent or the Paying
Agent. Any permissive right of the Trustee, the Fiscal Agent or the Paying
Agent provided for in this Agreement shall not be construed as a duty of
the Trustee, the Fiscal Agent or the Paying Agent. The Trustee, the Fiscal
Agent and the Paying Agent each shall exercise such of the rights and
powers vested in it by this Agreement and following the occurrence and
during the continuation of any Event of Default hereunder, the Trustee and
the Paying Agent each shall use the same degree of care and skill in its
exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) The Trustee, the Fiscal Agent or the Paying Agent, as
applicable, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, which
are specifically required to be furnished to them pursuant to any
provision of this Agreement, shall examine them to determine whether they
on their face conform to the requirements of this Agreement; provided that
the Trustee, the Fiscal Agent or the Paying Agent, as the case may be,
shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Servicer or any other Person to it
pursuant to this Agreement. If any such instrument is found on its face
not to conform to the requirements of this Agreement, the Trustee or the
Paying Agent, as the case may be, shall request the providing party to
correct the instrument and if not so corrected, the Trustee or the Paying
Agent shall inform the Certificateholders.
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(c) Neither the Trustee, the Paying Agent nor the Fiscal Agent
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall have any liability to the Trust or the
Certificateholders arising out of or in connection with this Agreement,
except for their respective negligence or willful misconduct. No provision
of this Agreement shall be construed to relieve the Trustee, the Fiscal
Agent, the Paying Agent or any of their respective directors, officers,
employees, agents or Controlling Persons from liability for their own
negligent action, their own negligent failure to act or their own willful
misconduct or bad faith; provided that:
(i) neither the Trustee, the Fiscal Agent nor the Paying
Agent nor any of their respective directors, officers, employees, agents
or Controlling Persons shall be personally liable with respect to any
action taken, suffered or omitted to be taken by it in its reasonable
business judgment in accordance with this Agreement or at the direction of
Holders of Certificates evidencing not less than a majority of the
outstanding Certificate Balance of the Certificates;
(ii) no provision of this Agreement shall require either
the Trustee, the Fiscal Agent or the Paying Agent to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it;
(iii) neither the Trustee, the Fiscal Agent nor the
Paying Agent nor any of their respective directors, officers, employees,
agents or Controlling Persons shall be responsible for any act or omission
of the Servicer, the Special Servicer, the Depositor or either Seller, or
for the acts or omissions of each other, including, without limitation, in
connection with actions taken pursuant to this Agreement;
(iv) the execution by the Trustee or the Paying Agent of
any forms or plans of liquidation in connection with any REMIC Pool shall
not constitute a representation by the Trustee or the Paying Agent as to
the adequacy of such form or plan of liquidation;
(v) none of the Trustee, the Fiscal Agent or the Paying
Agent shall be under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its duties as Trustee, the Fiscal
Agent or the Paying Agent, as applicable in accordance with this
Agreement. In such event, all legal expense and costs of such action shall
be expenses and costs of the Trust and the Trustee, the Fiscal Agent and
the Paying Agent shall be entitled to be reimbursed therefor from the
Certificate Account pursuant to Section 5.2(a)(vi); and
(vi) neither the Trustee, the Fiscal Agent nor the
Paying Agent shall be charged with knowledge of any failure by the
Servicer or the Special Servicer or by each other to comply with its
obligations under this Agreement or any act, failure, or breach of any
Person upon the occurrence of which the Trustee, the Fiscal Agent or the
Paying Agent may be required to act, unless a Responsible Officer of the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, obtains
actual knowledge of such failure.
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(d) The Paying Agent represents that any custom-made software
or hardware designed or purchased or licensed by such entity and used by
such entity in the course of operation or management of, or the compiling,
reporting or generation of date required by this Agreement will not
contain any deficiency (x) in the ability of such software or hardware to
identify correctly or perform calculations or other processing with
respect to dates after December, 1999 or (y) that would cause such
software to be fit no longer for the purpose for which it was intended by
reason of the changing of the date from 1999 to 2000.
(e) The Trustee represents that it has used commercially
reasonable efforts to cure any deficiencies with regards to the
manipulation or calculation of dates beyond December 31, 1999 in the
internally maintained computer software systems used by the Trustee in the
conduct of its trust business which would materially and adversely affect
its ability to perform its obligations under this Agreement. The Trustee
further represents that it has used reasonable commercial efforts to
obtain reasonable assurances from each third party vendor of licensed
computer software systems used by the Trustee in the conduct of its trust
business that such vendors shall use reasonable commercial efforts to cure
any deficiencies with regards to the manipulation or calculation of dates
beyond December 31, 1999 in such systems which would materially and
adversely affect the ability of the Trustee to perform its obligations
under this Agreement.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, the Fiscal Agent and the Paying Agent
each may request, and may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) the Trustee, the Fiscal Agent and the Paying Agent
each may consult with counsel and the advice of such counsel and any
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(iii) neither the Trustee nor the Fiscal Agent nor the
Paying Agent nor any of their respective directors, officers, employees,
agents or Controlling Persons shall be personally liable for any action
taken, suffered or omitted by such Person in its reasonable business
judgment and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(iv) neither the Trustee nor the Paying Agent shall be
under any obligation to exercise any remedies after default as specified
in this Agreement or to institute, conduct or defend any litigation
hereunder or relating hereto or make any investigation into the
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facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document (provided the same appears regular on its
face), unless requested in writing to do so by Holders of at least 25% of
the Aggregate Principal Amount of the Certificates then outstanding
provided that, if the payment within a reasonable time to the Trustee or
the Paying Agent, as applicable, of the costs, expenses or liabilities
likely to be incurred by it in connection with the foregoing is, in the
opinion of such Person not reasonably assured to such Person by the
security afforded to it by the terms of this Agreement, such Person may
require reasonable indemnity against such expense or liability or payment
of such estimated expenses as a condition to proceeding. The reasonable
expenses of the Trustee or the Paying Agent, as applicable, shall be paid
by the Certificateholders requesting such examination;
(v) the Trustee, the Fiscal Agent and the Paying Agent
each may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys,
which agents or attorneys shall have any or all of the rights, powers,
duties and obligations of the Trustee, the Fiscal Agent and the Paying
Agent conferred on them by such appointment; provided that each of the
Trustee, the Fiscal Agent and the Paying Agent, as the case may be, shall
continue to be responsible for its duties and obligations hereunder and
shall not be liable for the actions or omissions of the Servicer, the
Special Servicer, the Depositor or the actions or omissions of each other;
(vi) neither the Trustee nor the Fiscal Agent nor the
Paying Agent shall be required to obtain a deficiency judgment against a
Mortgagor;
(vii) neither the Trustee nor the Fiscal Agent nor the
Paying Agent shall be required to expend its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder
if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such liability is not assured to it;
(viii) none of the Trustee, the Fiscal Agent and the
Paying Agent shall be liable for any loss on any investment of funds
pursuant to this Agreement;
(ix) unless otherwise specifically required by law,
neither the Trustee nor the Fiscal Agent nor the Paying Agent shall be
required to post any surety or bond of any kind in connection with the
execution or performance of its duties hereunder; and
(x) except as specifically provided hereunder in
connection with the performance of its specific duties, neither the
Trustee nor the Fiscal Agent nor the Paying Agent shall be responsible for
any act or omission of the Servicer, the Special Servicer, the Depositor
or of each other.
(b) Following the Closing Date, the Trustee shall not accept
any contribution of assets to the Trust not specifically contemplated by
this Agreement unless the Trustee shall have received a
Nondisqualification Opinion at the expense of the Person desiring to
contribute such assets with respect to such contribution.
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(c) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee, may be enforced by it
without the possession of any of the Certificates, or the production
thereof at the trial or any proceeding relating thereto, and any such
suit, action or proceeding instituted by the Trustee shall be brought in
its name for the benefit of all the Holders of such Certificates, subject
to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the
amount of any and all federal, state and local taxes imposed on the Trust
or its assets or transactions including, without limitation, (A)
"prohibited transaction" penalty taxes as defined in Section 860F of the
Code, if, when and as the same shall be due and payable, (B) any tax on
contributions to a REMIC after the Closing Date imposed by Section 860G(d)
of the Code and (C) any tax on "net income from foreclosure property" as
defined in Section 860G(c) of the Code, but only if such taxes arise out
of a breach by the Trustee of its obligations hereunder, which breach
constitutes negligence or willful misconduct of the Trustee.
(e) The Paying Agent shall timely pay, from its own funds, the
amount of any and all federal, state and local taxes imposed on the Trust
or its assets or transactions including, without limitation, (A)
"prohibited transaction" penalty taxes as defined in Section 860F of the
Code, if, when and as the same shall be due and payable, (B) any tax on
contributions to a REMIC after the Closing Date imposed by Section 860G(d)
of the Code and (C) any tax on "net income from foreclosure property" as
defined in Section 860G(c) of the Code, but only if such taxes arise out
of a breach by the Paying Agent of its obligations hereunder, which breach
constitutes negligence or willful misconduct of the Paying Agent.
SECTION 7.3 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT
NOT LIABLE FOR CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee,
the Fiscal Agent and the Paying Agent each makes no representations as to
the validity or sufficiency of this Agreement, the information contained
in the Private Placement Memorandum, the Preliminary Prospectus Supplement
or Final Prospectus Supplement for the REMIC III Certificates or Residual
Certificates (other than the certificate of authentication on the
Certificates if the Paying Agent is the Authenticating Agent) or of any
Mortgage Loan, Assignment of Mortgage or related document save that (i)
each of the Trustee and the Fiscal Agent represents that, assuming due
execution and delivery by the other parties hereto, this Agreement has
been duly authorized, executed and delivered by it and constitutes its
valid and binding obligation, enforceable against it in accordance with
its terms except that such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered
in a proceeding in equity or at law and (ii) the Paying Agent represents
that, assuming due execution and delivery by the other parties hereto,
this Agreement has been duly authorized, executed and delivered by it and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms except that such enforceability may be subject
to (A) applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally, and (B)
general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law. None of the Trustee, the
Fiscal Agent or the Paying Agent shall be accountable for the use or
application by the Depositor or the Servicer or the Special Servicer or by
each other of any of the Certificates or any
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of the proceeds of such Certificates, or for the use or application by the
Depositor or the Servicer or the Special Servicer or by each other of
funds paid in consideration of the assignment of the Mortgage Loans to the
Trust or deposited into the Distribution Account or any other fund or
account maintained with respect to the Certificates or any account
maintained pursuant to this Agreement or for investment of any such
amounts. No recourse shall be had for any claim based on any provisions of
this Agreement, the Private Placement Memorandum, the Preliminary
Prospectus Supplement and Final Prospectus Supplement or the Certificates
(except with respect to the Trustee, Fiscal Agent and Paying Agent to the
extent specified in Section 7.11(c)), the Certificates, the Mortgage Loans
or the assignment thereof against the Trustee, the Fiscal Agent or the
Paying Agent in such Person's individual capacity and any such claim shall
be asserted solely against the Trust or any indemnitor who shall furnish
indemnity as provided herein. Neither the Trustee nor the Fiscal Agent nor
the Paying Agent shall be liable for any action or failure of any action
by the Depositor or the Servicer or the Special Servicer or by each other
hereunder. Neither the Trustee nor the Fiscal Agent nor the Paying Agent
shall at any time have any responsibility or liability for or with respect
to the legality, validity or enforceability of the Mortgages or the
Mortgage Loans, or the perfection and priority of the Mortgages or the
maintenance of any such perfection and priority, or for or with respect to
the efficacy of the Trust or its ability to generate the payments to be
distributed to Certificateholders under this Agreement, including, without
limitation, the existence, condition and ownership of any Mortgaged
Property; the existence and enforceability of any hazard insurance
thereon; the validity of the assignment of the Mortgage Loans to the Trust
or of any intervening assignment; the completeness of the Mortgage Loans;
the performance or enforcement of the Mortgage Loans (other than if the
Trustee shall assume the duties of the Servicer); the compliance by the
Depositor, each Seller, the Mortgagor or the Servicer or the Special
Servicer or by each other with any warranty or representation made under
this Agreement or in any related document or the accuracy of any such
warranty or representation made under this Agreement or in any related
document prior to the receipt by a Responsible Officer of the Trustee of
notice or other discovery of any non-compliance therewith or any breach
thereof (at which time such party will have only the obligations to take
the actions specified herein and only the corresponding liabilities with
respect thereto); any investment of monies by or at the direction of the
Servicer or the Special Servicer or any loss resulting therefrom; the
failure of the Servicer or any Sub-Servicer or the Special Servicer to act
or perform any duties required of it on behalf of the Trustee hereunder;
or any action by the Trustee taken at the instruction of the Servicer or
the Special Servicer.
SECTION 7.4 THE TRUSTEE, THE FISCAL AGENT AND PAYING AGENT MAY
OWN CERTIFICATES. Each of the Trustee, the Fiscal Agent and the Paying
Agent in its individual or any other capacity may become the owner or
pledgee of Certificates with the same rights it would have if it were not
the Trustee, the Fiscal Agent or the Paying Agent, as the case may be.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE, THE
FISCAL AGENT AND THE PAYING AGENT. (a) Each of the Trustee and the Fiscal
Agent hereunder shall at all times be (i) an institution insured by the
FDIC, (ii) a corporation, authorized to exercise corporate trust powers,
having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal, state or other
governmental authority, and (iii) an institution whose long-term senior
unsecured debt is rated not less than either (a) "AA" by Fitch IBCA, if
rated by Fitch IBCA, and if not rated by Fitch IBCA, then otherwise
acceptable to Fitch
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IBCA and "AA" by DCR, if rated by DCR, and if not rated by DCR, then
otherwise acceptable to DCR, or (b) "BBB" by Fitch IBCA, if rated by Fitch
IBCA, and if not rated by Fitch IBCA, then otherwise acceptable to Fitch
IBCA and "BBB" by DCR, if rated by DCR, or if not rated by DCR, then
otherwise approved by DCR, if the Fiscal Agent has a long-term senior
secured debt rating of not less than "AA" by Fitch IBCA, if rated by Fitch
IBCA, and if not rated by Fitch IBCA, then otherwise acceptable to Fitch
IBCA, and "AA" by DCR, if rated by DCR, and if not rated by DCR, then
otherwise approved by DCR. If such corporation or national bank 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 or national bank shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee or the Fiscal Agent shall cease
to be eligible in accordance with provisions of this Section, the Trustee
or the Fiscal Agent shall resign immediately in the manner and with the
effect specified in Section 7.6.
(b) The Paying Agent shall be either a bank or trust company
or otherwise authorized under law to exercise corporate trust powers and
shall be rated at least "BBB" by Fitch IBCA (if rated by Fitch IBCA, and
if not rated by Fitch IBCA, then otherwise acceptable to Fitch IBCA) and
DCR, unless and to the extent Rating Agency Confirmation is obtained.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE, THE FISCAL
AGENT OR THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent or the Paying Agent may at
any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Depositor, the Servicer and the Rating
Agencies; provided that such resignation shall not be effective until its
successor shall have accepted the appointment. Upon receiving such notice
of resignation, the Depositor will promptly appoint a successor trustee,
fiscal agent or paying agent, as the case may be, except in the case of
the initial Trustee or Fiscal Agent, in which case both shall be so
replaced but may be replaced under this paragraph sequentially, by written
instrument, one copy of which instrument shall be delivered to the
resigning Trustee or the Fiscal Agent, one copy to the successor trustee
and one copy to each of the Servicer and the Rating Agencies. If no
successor trustee, fiscal agent or paying agent shall have been so
appointed, as the case may be, and shall have accepted appointment within
30 days after the giving of such notice of resignation, the resigning
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, may
petition any court of competent jurisdiction for the appointment of a
successor trustee, fiscal agent or paying agent, as the case may be. It
shall be a condition to the appointment of a successor trustee, fiscal
agent or paying agent that each Rating Agency shall have delivered a
Rating Agency Confirmation with respect to such appointment.
(b) If at any time (i) the Trustee shall cease to be eligible
in accordance with the provisions of Section 7.5(a) and shall fail to
resign after written request therefor by the Depositor, (ii) the Trustee
shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, (iii) a tax is imposed or threatened with
respect to
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the Trust or any REMIC Pool by any state in which the Trustee or the Trust
held by the Trustee is located solely because of the location of the
Trustee in such state; provided, however, that, if the Trustee agrees to
indemnify the Trust for such taxes, it shall not be removed pursuant to
this clause (iii), (iv) the continuation of the Trustee as such would
result in a downgrade, qualification (including the placement of any rated
Certificate on "credit watch" or the equivalent) or withdrawal of the
rating by the Rating Agencies of any Class of Certificates with a rating
as evidenced in writing by the Rating Agencies or (v) with respect with
the initial Trustee, a Fiscal Agent Termination Event has occurred unless
the Trustee has satisfied the ratings required by Section 7.5(iii)(a)
above, then the Depositor may remove such Trustee and appoint a successor
trustee by written instrument, one copy of which instrument shall be
delivered to the Trustee so removed, one copy to the successor trustee and
one copy to each of the Servicer and the Rating Agencies. In the case of
removal under clauses (i), (ii), (iii) and (iv) above, the Trustee shall
bear all such costs of transfer. Such succession shall take effect after a
successor trustee has been appointed. In the case of the removal of the
initial Trustee, the Depositor shall also remove the Fiscal Agent. In this
case, the procedures and liability for costs of such removal shall be the
same as they are stated in subsection (c) with respect to the Fiscal
Agent.
(c) If at any time (i) the Fiscal Agent shall cease to be
eligible in accordance with the provisions of Section 7.5(a) and shall
fail to resign after written request therefor by the Depositor, or (ii) a
Fiscal Agent Termination Event has occurred, then the Depositor shall send
a written notice of termination to the Fiscal Agent (which notice shall
specify the reason for such termination) and remove such Fiscal Agent and
appoint a successor Fiscal Agent by written instrument, one copy of which
instrument shall be delivered to the Fiscal Agent so removed, one copy to
the successor Fiscal Agent, and one copy to each of the Trustee, the
Servicer and the Rating Agencies. In all such cases, the Fiscal Agent
shall bear all costs of transfer to a successor Fiscal Agent, such
succession only to take effect after a successor Fiscal Agent has been
appointed. In the case of the initial Fiscal Agent, the Depositor may, but
is not required to, also remove the Trustee. In this case, the procedures
and liability for costs of such removal shall be the same as they are
stated in subsection (b) with respect to the Trustee.
(d) If at any time (i) the Paying Agent shall cease to be
eligible in accordance with the provisions of Section 7.5(b) and shall
fail to resign after written request therefor by the Depositor, (ii) the
Paying Agent shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Paying Agent or of its
property shall be appointed, or any public officer shall take charge or
control of the Paying Agent or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, (iii) a tax is imposed or
threatened with respect to the Trust or any REMIC Pool by any state in
which the Paying Agent is located solely because of the location of the
Paying Agent in such state; provided, however, that, if the Paying Agent
agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), or (iv) the continuation of the Paying
Agent as such would result in a downgrade, qualification (including the
placement of any rated Certificate on "credit watch" or the equivalent) or
withdrawal, as applicable, of the rating by the Rating Agencies of any
Class of Certificates with a rating as evidenced in writing by the Rating
Agencies, then the Depositor or the Trustee shall send a written notice of
termination to the Paying Agent (which notice shall specify the reason for
such termination) and remove such Paying Agent and the Depositor shall
appoint a successor Paying Agent by written instrument, one copy of which
instrument shall be
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delivered to the Paying Agent so removed, one copy to the successor Paying
Agent, and one copy to each of the Trustee, the Servicer and the Rating
Agencies. In all such cases, the Paying Agent shall bear all costs of
transfer to a successor Paying Agent, such succession only to take effect
after a successor Paying Agent has been appointed.
(e) The Holders of more than 50% of the Aggregate Principal
Amount of the Certificates then outstanding may for cause upon 30 days'
written notice to the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, and to the Depositor remove the Trustee, the Fiscal Agent
or the Paying Agent, as the case may be, by such written instrument,
signed by such Holders or their attorney-in-fact duly authorized, one copy
of which instrument shall be delivered to the Depositor and one copy to
the Trustee, the Fiscal Agent or the Paying Agent, as the case may be, so
removed; the Depositor shall thereupon use its best efforts to appoint a
successor Trustee, Fiscal Agent or Paying Agent, as the case may be, in
accordance with this Section.
(f) Any resignation or removal of the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, and appointment of a
successor trustee, fiscal agent or paying agent pursuant to any of the
provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee, fiscal agent or paying agent, as the
case may be, as provided in Section 7.7. Upon any succession of the
Trustee, the Fiscal Agent or Paying Agent under this Agreement, the
predecessor Trustee, Fiscal Agent or Paying Agent, as the case may be,
shall be entitled to the payment of compensation and reimbursement agreed
to under this Agreement for services rendered and expenses incurred. The
Trustee, the Fiscal Agent or the Paying Agent shall not be liable for any
action or omission of any successor Trustee, Fiscal Agent or Paying Agent,
as the case may be.
SECTION 7.7 SUCCESSOR TRUSTEE, FISCAL AGENT OR PAYING AGENT.
(a) Any successor Trustee, Fiscal Agent or Paying Agent
appointed as provided in Section 7.6 shall execute, acknowledge and
deliver to the Depositor and to its predecessor Trustee, Fiscal Agent or
Paying Agent, as the case may be, an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor
Trustee, Fiscal Agent or Paying Agent, as the case may be, shall become
effective and such successor Trustee, Fiscal Agent or Paying Agent, as the
case may be, without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee,
Fiscal Agent or Paying Agent herein. The predecessor Trustee, Fiscal Agent
or Paying Agent shall deliver (at such predecessor's own expense) to the
successor Trustee, Fiscal Agent or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it
hereunder, and the predecessor Trustee shall duly assign, transfer,
deliver and pay over (at such predecessor's own expense) to the successor
Trustee, the entire Trust, together with all instruments of transfer and
assignment or other documents properly executed necessary to effect such
transfer. The predecessor Trustee, Fiscal Agent or Paying Agent, as the
case may be, shall also deliver all records or copies thereof maintained
by the predecessor Trustee, Fiscal Agent or Paying Agent in the
administration hereof as may be reasonably requested by the successor
Trustee, Fiscal Agent or Paying Agent, as applicable, and shall thereupon
be discharged from all duties and
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responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee, Fiscal Agent or Paying Agent shall execute and
deliver such other instruments and do such other things as may reasonably
be required to more fully and certainly vest and confirm in the successor
Trustee, Fiscal Agent or Paying Agent, as the case may be, all such
rights, powers, duties and obligations. Anything herein to the contrary
notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee, Fiscal Agent or Paying Agent shall
accept appointment as provided in this Section unless at the time of such
appointment such successor Trustee, Fiscal Agent or Paying Agent, as the
case may be, shall be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee,
Fiscal Agent or Paying Agent as provided in this Section, the successor
Trustee, Fiscal Agent or Paying Agent shall mail notice of the succession
of such Trustee, Fiscal Agent or Paying Agent hereunder to all Holders of
Certificates at their addresses as shown in the Certificate Register and
to the Rating Agencies. The expenses of such mailing shall be borne by the
successor Trustee, Fiscal Agent or Paying Agent. If the successor Trustee,
Fiscal Agent or Paying Agent fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, Fiscal Agent or
Paying Agent, the Servicer shall cause such notice to be mailed at the
expense of the successor Trustee, Fiscal Agent or Paying Agent, as
applicable.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, FISCAL AGENT
OR PAYING AGENT. Any Person into which the Trustee, Fiscal Agent or Paying
Agent may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which
such Trustee, Fiscal Agent or Paying Agent shall be a party, or any
Persons succeeding to the business of such Trustee, Fiscal Agent or Paying
Agent, shall be the successor of such Trustee, Fiscal Agent or Paying
Agent, as the case may be, hereunder, as applicable, provided that such
Person shall be eligible under the provisions of Section 7.5, without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE,
AGENTS OR CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time,
the Trustee, the Depositor or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the aggregate Certificate
Balance of the Certificates then outstanding shall each have the power
from time to time to appoint one or more Persons to act either as
co-trustees jointly with the Trustee or as separate trustees, or as
custodians, for the purpose of holding title to, foreclosing or otherwise
taking action with respect to any Mortgage Loan outside the state where
the Trustee has its principal place of business where such separate
trustee or co-trustee is necessary or advisable (or the Trustee is advised
by the Servicer or Special Servicer that such separate trustee or
co-trustee is necessary or advisable) under the laws of any state in which
a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in
any state in which a property securing a Mortgage Loan is located or in
any state in which any portion of the Trust is located. The separate
trustees, co-trustees, or custodians so
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appointed shall be trustees or custodians for the benefit of all the
Certificateholders, shall have such powers, rights and remedies as shall
be specified in the instrument of appointment and shall be deemed to have
accepted the provisions of this Agreement; provided that no such
appointment shall, or shall be deemed to, constitute the appointee an
agent of the Trustee; provided, further that the Trustee shall be liable
for the actions of any custodian, co-trustee or separate trustee appointed
by it and shall have no liability for the actions of any custodian,
co-trustee or separate trustee appointed by the Depositor or the
Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may
from time to time appoint one or more independent third-party agents to
perform all or any portion of its administrative duties hereunder (i.e.,
collection and distribution of funds, preparation and dissemination of
reports, monitoring compliance, etc.). The Trustee or the Paying Agent, as
the case may be, shall supervise and oversee such agents appointed by it.
The terms of any arrangement or agreement between the Trustee or the
Paying Agent, as the case may be, and such agent, may be terminated,
without cause and without the payment of any termination fees in the event
the Trustee or the Paying Agent, as the case may be, is terminated in
accordance with this Agreement. In addition, neither the Trust nor the
Certificateholders shall have any liability or direct obligation to such
agent. Notwithstanding, the terms of any agreement, the Trustee or the
Paying Agent, as the case may be, shall remain at all times obligated and
liable to the Trust and the Certificateholders for performing its duties
hereunder.
(c) Every separate trustee, co-trustee, and custodian shall,
to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody and payment of moneys
shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee,
co-trustee, or custodian jointly, except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the Servicer
hereunder) the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust or any portion thereof in any
such jurisdiction, shall be exercised and performed by such separate
trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be
personally liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal
Amount of the Certificates then outstanding may at any time accept the
resignation of or remove any separate trustee, co-trustee or custodian, so
appointed by it or them, if such resignation or removal does not violate
the other terms of this Agreement.
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(d) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee, co-trustee or custodian shall
refer to this Agreement and the conditions of this Article VII. Each
separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any
time, constitute the Trustee its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its name. If
any separate trustee, co-trustee or custodian shall die, become incapable
of acting, resign or be removed, all of its estates, properties, rights,
remedies and trusts shall vest in and be exercised by the Trustee, to the
extent permitted by law, without the appointment of a new or successor
trustee.
(f) No separate trustee, co-trustee or custodian hereunder
shall be required to meet the terms of eligibility as a successor trustee
under Section 7.5 hereof and no notice to Certificateholders of the
appointment of any separate trustee, co-trustee or custodian hereunder
shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to
the extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed pursuant to this
Section 7.9 to the extent, and in accordance with the standards, specified
in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent
shall not be unreasonably withheld, the Trustee may appoint at any time a
Custodian other than LaSalle Bank National Association. Upon the
appointment of a Custodian, the Trustee and the Custodian shall enter into
a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Paying Agent shall serve as the initial Authenticating
Agent hereunder for the purpose of executing and authenticating
Certificates. Wherever reference is made in this Agreement to the
execution and authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include execution and authentication on behalf of the Trustee by the
Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by the Authenticating Agent. Any successor
Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws
of the United States of America or of any state and having a principal
office and place of business in the Borough of Manhattan, the City and
000
Xxxxx xx Xxx Xxxx or in the State of Minnesota, having a combined capital
and surplus of at least $50,000,000, authorized under such laws to do a
trust business and subject to supervision or examination by federal or
state authorities.
(b) Any Person into which the Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the
Authenticating Agent shall be a party, or any Person succeeding to the
corporate agency business of the Authenticating Agent, shall continue to
be the Authenticating Agent without the execution or filing of any paper
or any further act on the part of the Trustee or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving
at least 30 days' advance written notice of resignation to the Trustee and
the Depositor. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice of termination to the
Authenticating Agent and the Depositor; provided that the Trustee may not
terminate the Paying Agent as Authenticating Agent unless the Paying Agent
shall be removed as paying agent hereunder. Upon receiving a notice of
resignation or upon such a termination, or in case at any time the
Authenticating Agent shall cease to be eligible in accordance with the
provisions of Section 7.10(a), the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect
as if originally named as Authenticating Agent. No such Authenticating
Agent shall be appointed unless eligible under the provisions of Section
7.10(a). No Authenticating Agent shall have responsibility or liability
for any action taken by it as such at the direction of the Trustee.
SECTION 7.11 INDEMNIFICATION OF TRUSTEE, THE FISCAL AGENT AND
THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent and the Paying Agent and
each of its respective directors, officers, employees, agents and
Controlling Persons shall be entitled to indemnification from the Trust
for any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgements and any other costs, liabilities, fees and
expenses incurred in connection with any legal action incurred without
negligence or willful misconduct on their respective part, arising out of,
or in connection with this Agreement, the Certificates and the acceptance
or administration of the trusts or duties created hereunder (including,
without limitation, any unanticipated loss, liability or expense incurred
in connection with any action or inaction of the Servicer, the Special
Servicer or the Depositor or of each other such Person hereunder but only
to the extent the Trustee, the Fiscal Agent or the Paying Agent, as the
case may be, is unable to recover within a reasonable period of time such
amount from such third party pursuant to this Agreement) including the
costs and expenses of defending themselves against any claim in connection
with the exercise or performance of any of their powers or duties
hereunder and the Trustee, the Fiscal Agent and the Paying Agent and each
of their respective directors, officers, employees, agents and Controlling
Persons shall be entitled to indemnification from the Trust for any
unanticipated loss, liability or expense incurred in connection with the
provision by the
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Trustee, the Fiscal Agent and the Paying Agent of the reports required to
be provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, shall have given the
Depositor, the Servicer, each other and the Holders of the Certificates
written notice thereof promptly after a Responsible Officer of the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, shall
have knowledge thereof; provided, however that failure to give such notice
to the Depositor, Servicer, each other and the Holders of Certificates
shall not affect the Trustee's, Fiscal Agent's or Paying Agent's, as the
case may be, rights to indemnification herein unless the Depositor's
defense of such claim on behalf of the Trust is materially prejudiced
thereby;
(ii) while maintaining control over its own defense, the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, shall
cooperate and consult fully with the Depositor in preparing such defense;
and
(iii) notwithstanding anything to the contrary in this
Section 7.11, the Trust shall not be liable for settlement of any such
claim by the Trustee, the Fiscal Agent or the Paying Agent, as the case
may be, entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any
termination of this Agreement and the resignation or removal of the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, their
respective directors, officers, employees or agents and Controlling
Persons from and against any loss, claim, damage or liability, joint or
several, and any action in respect thereof, to which the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, their respective
directors, officers, employees or agents or Controlling Person may become
subject under the 1933 Act, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon any untrue statement or alleged
untrue statement of a material fact contained in the Private Placement
Memorandum, in the Preliminary Prospectus Supplement or Final Prospectus
Supplement, or arises out of, or is based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances
under which they were made, not misleading and shall reimburse the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, their
respective directors, officers, employees, agents or Controlling Person
for any legal and other expenses reasonably incurred by the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, or any such
director, officer, employee, agent or Controlling Person in investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action; provided, that the Depositor shall not be liable in
any such case to the extent that any such loss, claim, damage, liability
or action arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission made in any such Private Placement
Memorandum, Preliminary Prospectus Supplement or Final Prospectus
Supplement in reliance upon and in conformity with written information
concerning the Trustee, the Fiscal Agent or the Paying Agent, as the case
may be,
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furnished to the Depositor by or on behalf of such person specifically for
inclusion therein. It is hereby expressly agreed that the only written
information provided by the Trustee, the Fiscal Agent or the Paying Agent,
as the case may be, for inclusion in the Preliminary Prospectus Supplement
is set forth, in the case of the Trustee, in the second and fourth
sentences under the caption entitled "DESCRIPTION OF THE CERTIFICATES--The
Trustee", in the case of the Fiscal Agent, in the second to last sentence
under the caption "DESCRIPTION OF THE CERTIFICATES --the Fiscal Agent",
and, in the case of the Paying Agent, in the third and fourth sentences
under the caption entitled "DESCRIPTION OF THE CERTIFICATES--the Paying
Agent, Certificate Registrar and Authenticating Agent". It is hereby
expressly agreed that the only written information provided by the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, for
inclusion in the Prospectus Supplement is set forth, in the case of the
Trustee, in the second and fourth sentences under the caption entitled
"DESCRIPTION OF THE CERTIFICATES--The Trustee", in the case of the Fiscal
Agent, in the second to last sentence under the caption "DESCRIPTION OF
THE CERTIFICATES --the Fiscal Agent", and, in the case of the Paying
Agent, in the third and fourth sentences under the caption entitled
"DESCRIPTION OF THE CERTIFICATES--the Paying Agent, Certificate Registrar
and Authenticating Agent". The Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, shall immediately notify the Depositor if a
claim is made by a third party with respect to this Section 7.11(c)
entitling such person, its directors, officers, employees, agents or
Controlling Person to indemnification hereunder, whereupon the Depositor
shall assume the defense of any such claim (with counsel reasonably
satisfactory to such person) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of
such claim. Any failure to so notify the Depositor shall not affect any
rights the Trustee, the Fiscal Agent or the Paying Agent, as the case may
be, their respective directors, officers, employees, agents or Controlling
Person may have to indemnification under this Section 7.11(c), unless the
Depositor's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this
Agreement and the resignation or removal of the Trustee, the Fiscal Agent
or the Paying Agent.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE, THE FISCAL AGENT
AND PAYING AGENT. The Trustee shall be entitled to receive the Trustee Fee
(other than the portion thereof constituting the Paying Agent Fee) and the
Paying Agent shall be entitled to receive the Paying Agent Fee, pursuant
to Section 5.3(b)(ii) (which shall not be limited by any provision of law
with respect to the compensation of a trustee of an express trust), for
all services rendered by it in the execution of the trusts hereby created
and in the exercise and performance of any of the powers and duties
respectively, hereunder of the Trustee and the Paying Agent, respectively.
The Trustee, the Fiscal Agent and the Paying Agent shall also be entitled
to recover from the Trust all reasonable unanticipated expenses and
disbursements incurred or made by the Trustee, the Fiscal Agent and the
Paying Agent in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and other Persons not regularly in its
employ), not including expenses incurred in the ordinary course of
performing its duties as Trustee, Fiscal Agent or Paying Agent,
respectively hereunder, and except any such expense, disbursement or
advance as may arise from the negligence or bad faith of such Person or
which is the responsibility of the Holders of the
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Certificates hereunder. The provisions of this Section 7.12 shall survive
any termination of this Agreement and the resignation or removal of the
Trustee, the Fiscal Agent or the Paying Agent.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise
expressly provided in this Agreement, the Trustee and the Paying Agent may
demand payment or delivery of, and shall receive and collect, all money
and other property payable to or receivable by the Trustee or the Paying
Agent, as the case may be, pursuant to this Agreement. The Trustee or the
Paying Agent, as the case may be, shall hold all such money and property
received by it as part of the Trust and shall distribute it as provided in
this Agreement. If the Trustee or Paying Agent, as the case may be, shall
not have timely received amounts to be remitted with respect to the
Mortgage Loans from the Servicer, the Trustee or Paying Agent, as the case
may be, shall request the Servicer to make such distribution as promptly
as practicable or legally permitted. If the Trustee or Paying Agent, as
the case may be, shall subsequently receive any such amount, it may
withdraw such request.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Servicer is terminated pursuant
to this Agreement, the Trustee shall be the successor in all respects to
the Servicer in its capacity under this Agreement and the transactions set
forth or provided for therein and shall have all the rights and powers and
be subject to all the responsibilities, duties and liabilities relating
thereto and arising thereafter placed on the Servicer by the terms and
provisions of this Agreement; provided that, any failure to perform such
duties or responsibilities caused by the Servicer's failure to provide
required information shall not be considered a default by the Trustee
hereunder. In addition, the Trustee shall have no liability relating to
(i) the representations and warranties of the Servicer contained in this
Agreement or (ii) any obligation incurred by the Servicer prior to its
termination or resignation (including, without limitation, the Servicer's
obligation to repay losses resulting from the investment of funds in any
account established under this Agreement). In the Trustee's capacity as
such successor, the Trustee shall have the same limitations on liability
granted to the Servicer in this Agreement. As compensation therefor, the
Trustee shall be entitled to receive all the compensation payable to the
Servicer set forth in this Agreement, including, without limitation, the
Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the
Trustee is unwilling to so act, or (B) shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint, any
established commercial or multifamily mortgage finance institution,
servicer or special servicer or mortgage servicing institution having a
net worth of not less than $15,000,000 and meeting such other standards
for a successor servicer as are set forth in this Agreement as the
successor to the Servicer hereunder in the assumption of all of the
responsibilities, duties or liabilities of a servicer as Servicer
hereunder; provided that the Trustee has obtained Rating Agency
Confirmation regarding such appointment. Pending any such appointment, the
Trustee shall act in such capacity as provided above. Any entity
designated by the Trustee as successor Servicer may be an Affiliate of the
Trustee; provided that, such Affiliate must meet the standards for the
Servicer as set forth herein, including that Rating Agency Confirmation
regarding such appointment has been obtained. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on
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Mortgage Loans as it and such successor shall agree subject to Section
8.10. The Trustee and such successor shall take such actions, consistent
with this Agreement as shall be necessary to effectuate any such
succession. The Servicer shall cooperate with the Trustee and any
successor servicer in effecting the termination of the Servicer's
responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of the assignment of the servicing
function and providing the Trustee and successor servicer all documents
and records in its possession in electronic or other form reasonably
requested by the successor servicer to enable the successor servicer to
assume the Servicer's functions hereunder and the transfer to the Trustee
or such successor servicer of all amounts which shall at the time be or
should have been deposited by the Servicer in the Certificate Account and
any other account or fund maintained with respect to the Certificates or
thereafter be received by the Servicer with respect to the Mortgage Loans.
Neither the Trustee nor any other successor servicer shall be deemed to be
in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (i)
the failure of the Servicer to deliver, or any delay in delivering, cash,
documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the Servicer. The Trustee shall be
reimbursed for all of its out-of-pocket expenses incurred in connection
with obtaining such successor Servicer by the Trust within 30 days of the
Trustee's submission of an invoice with respect thereto, to the extent
such expenses have not been reimbursed by the Servicer as provided herein;
such expenses paid by the Trust shall be deemed to be an Additional Trust
Expense.
(c) On and after the time the Special Servicer is terminated
pursuant to this Agreement, in accordance with Section 9.30, the
Controlling Class shall have the right to appoint a successor Special
Servicer that satisfies the criteria specified in the first sentence of
the next paragraph and Section 9.21 hereof. Unless and until the
Controlling Class shall have appointed a successor Special Servicer
hereunder, the Trustee shall be the successor in all respects to the
Special Servicer in its capacity under this Agreement and the transactions
set forth or provided for therein and shall have all the rights and powers
and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Special Servicer by
the terms and provisions of this Agreement; provided that, any failure to
perform such duties or responsibilities caused by the Special Servicer's
failure to provide required information shall not be considered a default
by the Trustee hereunder. In addition, the Trustee shall have no liability
relating to (i) the representations and warranties of the Special Servicer
contained in this Agreement or (ii) any obligation incurred by the Special
Servicer prior to its termination or resignation. In the Trustee's
capacity as such successor, the Trustee shall have the same limitations on
liability granted to the Special Servicer in this Agreement. As
compensation therefor, the Trustee shall be entitled to receive all the
compensation payable to the Special Servicer set forth in this Agreement,
including, without limitation the Special Servicer Compensation.
(d) Notwithstanding the above, the Trustee may, if the Trustee
shall be unwilling to so act, or shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint, any
established commercial or multifamily mortgage finance institution,
special servicer or mortgage servicing institution having a net worth of
not less than $15,000,000 and meeting such other standards for a successor
Special Servicer as are set forth in Section 9.21, as the successor to the
Special Servicer hereunder in the assumption of all of the
responsibilities, duties
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or liabilities of a special servicer as Special Servicer hereunder;
provided that the Trustee has obtained Rating Agency Confirmation
regarding such appointment. Pending any such appointment, the Trustee
shall act in such capacity as provided above. Any entity designated by the
Trustee as successor Special Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for a successor
Special Servicer set forth herein and Rating Agency Confirmations must be
obtained with respect to any such appointment. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and
such successor shall agree; provided that no such compensation shall be in
excess of that permitted to the Special Servicer under this Agreement. The
Trustee and such successor shall take such actions, consistent with this
Agreement as shall be necessary to effectuate any such succession. The
Special Servicer shall cooperate with the Trustee and any successor
Special Servicer in effecting the termination of the Special Servicer's
responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of
the assignment of the special servicing function and providing the Trustee
and successor Special Servicer all documents and records in its possession
in electronic or other form reasonably requested by the successor Special
Servicer to enable the successor Special Servicer to assume the Special
Servicer's functions hereunder and the transfer to the Trustee or such
successor Special Servicer of all amounts which shall at the time be or
should have been deposited by the Special Servicer in the Certificate
Account and any other account or fund maintained with respect to the
Certificates or thereafter be received by the Special Servicer with
respect to the Mortgage Loans. Neither the Trustee nor any other successor
Special Servicer shall be deemed to be in default hereunder by reason of
any failure to make, or any delay in making, any distribution hereunder or
any portion thereof caused by (i) the failure of the Special Servicer to
deliver, or any delay in delivering, cash, documents or records to it, or
(ii) restrictions imposed by any regulatory authority having jurisdiction
over the Special Servicer. The Trustee shall be reimbursed for all of its
out-of-pocket expenses incurred in connection with obtaining such
successor Special Servicer by the Trust within 30 days of submission of an
invoice with respect thereto but only to the extent such expenses have not
been reimbursed by the Special Servicer as provided herein; and such
expenses paid by the Trust shall be deemed to be an Additional Trust
Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of the
Servicer, the Paying Agent or the Special Servicer, or appointment of a
successor to the Servicer, the Paying Agent or the Special Servicer, the
Trustee shall promptly mail notice thereof by first class mail to the
Rating Agencies and the Certificateholders at their respective addresses
appearing on the Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE,
THE FISCAL AGENT AND THE PAYING AGENT.
(a) The Trustee hereby represents and warrants as of the
Closing Date that:
(i) the Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws governing
its creation and existence and has
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full power and authority to own its property, to carry on its business as
presently conducted, and to enter into and perform its obligations under
this Agreement;
(ii) the execution and delivery by the Trustee of this
Agreement have been duly authorized by all necessary action on the part of
the Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or
result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Trustee or its properties that would materially and
adversely affect the Trustee's ability to perform its obligations under
this Agreement, (ii) the organizational documents of the Trustee, or (iii)
the terms of any material agreement or instrument to which the Trustee is
a party or by which it is bound; the Trustee is not in default with
respect to any order or decree of any court or any order, regulation or
demand of any federal, state, municipal or other governmental agency,
which default would materially and adversely affect its performance under
this Agreement;
(iii) the execution, delivery and performance by the
Trustee of this Agreement and the consummation of the transactions
contemplated by this Agreement do not require the consent, approval,
authorization or order of, the giving of notice to or the registration
with any state, federal or other governmental authority or agency, except
such as has been or will be obtained, given, effected or taken in order
for the Trustee to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered
by the Trustee and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid and binding obligation of
the Trustee, enforceable against the Trustee in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to the Trustee's
knowledge, threatened, against the Trustee that, either in one instance or
in the aggregate, would draw into question the validity of this Agreement,
or which would be likely to impair materially the ability of the Trustee
to perform under the terms of this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of the
Closing Date that:
(i) the Fiscal Agent is a foreign banking corporation duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, and to enter into and
perform its obligations under this Agreement;
(ii) the execution and delivery by the Fiscal Agent of this
Agreement have been duly authorized by all necessary corporate action on the
part
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of the Fiscal Agent; neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or result
in a breach of, or constitute a default under, (i) any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on the
Fiscal Agent or its properties that would materially and adversely affect the
Fiscal Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Fiscal Agent, or (iii) the terms of any material
agreement or instrument to which the Fiscal Agent is a party or by which it is
bound; the Fiscal Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Fiscal
Agent of this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or order of,
the giving of notice to, or the registration with, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by
the Fiscal Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Fiscal
Agent, enforceable against the Fiscal Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) no litigation is pending or, to the Fiscal Agent's
knowledge, threatened, against the Fiscal Agent that, either in any one instance
or in the aggregate, would draw into question the validity of this Agreement, or
which would be likely to impair materially the ability of the Fiscal Agent to
perform under the terms of this Agreement.
(c) The Paying Agent hereby represents and warrants as of the
Closing Date that:
(i) the Paying Agent is a national banking association,
duly organized, validly existing and in good standing under the laws
governing its creation and existence and has full power and authority to
own its property, to carry on its business as presently conducted, and to
enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Paying Agent of
this Agreement have been duly authorized by all necessary action on the
part of the Paying Agent; neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated in this
Agreement, nor compliance with the provisions of this Agreement, will
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conflict with or result in a breach of, or constitute a default under, (i)
any of the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on the Paying Agent or its properties that would
materially and adversely affect the Paying Agent's ability to perform its
obligations under this Agreement, (ii) the organizational documents of the
Paying Agent, or (iii) the terms of any material agreement or instrument
to which the Paying Agent is a party or by which it is bound; the Paying
Agent is not in default with respect to any order or decree of any court
or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely
affect its performance under this Agreement;
(iii) the execution, delivery and performance by the
Paying Agent of this Agreement and the consummation of the transactions
contemplated by this Agreement do not require the consent, approval,
authorization or order of, the giving of notice to or the registration
with any state, federal or other governmental authority or agency, except
such as has been or will be obtained, given, effected or taken in order
for the Paying Agent to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered
by the Paying Agent and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid and binding
obligation of the Paying Agent, enforceable against the Paying Agent in
accordance with its terms, subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and other
similar laws affecting creditors' rights generally as from time to time in
effect, and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending
or, to the best of the Paying Agent's knowledge, threatened, against the
Paying Agent that, either in one instance or in the aggregate, would draw
into question the validity of this Agreement, or which would be likely to
impair materially the ability of the Paying Agent to perform under the
terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT.
Each of the Trustee, the Fiscal Agent and the Paying Agent, at its own
respective expense, shall maintain in effect a Fidelity Bond and an Errors
and Omissions Insurance Policy. The Errors and Omissions Insurance Policy
and Fidelity Bond shall be issued by a Qualified Insurer in form and in
amount customary for trustees, fiscal agents or paying agents in similar
transactions (unless the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, self insures as provided below). In the event that any
such Errors and Omissions Insurance Policy or Fidelity Bond ceases to be
in effect, the Trustee, the Fiscal Agent or the Paying Agent, as the case
may be, shall obtain a comparable replacement policy or bond from an
insurer or issuer meeting the requirements set forth above as of the date
of such replacement. So long as the long-term debt rating of the Trustee,
the Fiscal Agent or the Paying Agent, as the case may be, is not less than
two rating categories (ignoring pluses or minuses) lower than the highest
rating of the Certificates, but in any event not less than "A" as rated by
Fitch IBCA (if rated by Fitch IBCA, and if not rated by Fitch IBCA, then
otherwise acceptable to Fitch IBCA) and "A" as rated by DCR, if rated by
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DCR, respectively (and if not rated by DCR, then a comparable rating from
at least two nationally recognized statistical rating organizations or
otherwise approved by DCR), the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, may self-insure for the Fidelity Bond and the
Errors and Omissions Insurance Policy.
ARTICLE VIII
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for
and on behalf of the Trust and for the benefit of the Certificateholders
as a whole, the Servicer shall service and administer the Mortgage Loans
in accordance with the Servicing Standard and the terms of this Agreement
(subject to the servicing of the Pari Passu Loan by the 99-C1 Servicer and
the 99-C1 Special Servicer).
In connection with such servicing and administration, the
Servicer shall seek to maximize the timely recovery of principal and
interest on the Mortgage Notes in the best economic interests of the
Certificateholders as a whole; provided, however, that nothing herein
contained shall be construed as an express or implied guarantee by the
Servicer of the collectibility of payments on the Mortgage Loans or shall
be construed as impairing or adversely affecting any rights or benefits
specifically provided by this Agreement to the Servicer, including with
respect to Servicing Fees or the right to be reimbursed for Advances.
(b) The Servicer, in the case of an event specified in clause
(x) of this subclause (b), and the Special Servicer, in the case of an
event specified in clause (y) of this subclause (b), shall each send a
written notice to the other and to the Trustee and the Paying Agent within
two Business Days after becoming aware (x) that a Servicing Transfer Event
has occurred with respect to a Mortgage Loan or (y) that a Mortgage Loan
has become a Rehabilitated Mortgage Loan, which notice shall identify the
applicable Mortgage Loan and, in the case of an event specified in clause
(x) of this subclause (b) above, the Servicing Transfer Event that
occurred.
(c) The Servicer represents that any custom-made software or
hardware designed or purchased or licensed by the Servicer and used by the
Servicer in the course of operation or management of, or the compiling,
reporting or generation of date required by this Agreement does not
contain any deficiency (x) in the ability of such software or hardware to
identify correctly or perform calculations or other processing with
respect to dates after December 31, 1999 or (y) that would cause such
software to be fit no longer for the purpose for which it was intended by
reason of the changing of the date from 1999 to 2000.
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE SERVICER. The Servicer, at its expense, shall
maintain in effect a Servicer Fidelity Bond and a Servicer Errors and
Omissions Insurance Policy. The Servicer Errors and Omissions Insurance
Policy and Servicer Fidelity Bond shall be issued by a Qualified Insurer
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(unless the Servicer self insures as provided below) and be in form and
amount consistent with the Servicing Standard. In the event that any such
Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond
ceases to be in effect, the Servicer shall obtain a comparable replacement
policy or bond from an insurer or issuer meeting the requirements set
forth above as of the date of such replacement. So long as the long-term
rating of the Servicer is not less than two rating categories (ignoring
pluses or minuses) lower than the highest rating of the Certificates, but
in any event not less than "A" as rated by Fitch IBCA and "A" as rated by
DCR, respectively, the Servicer may self-insure for the Servicer Fidelity
Bond and the Servicer Errors and Omissions Insurance Policy.
SECTION 8.3 SERVICER'S GENERAL POWER AND DUTIES.
(a) The Servicer shall service and administer the Mortgage
Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article XII
hereof and as otherwise provided herein and by the Code, have full power
and authority to do any and all things which it may deem necessary or
desirable in connection with such servicing and administration in
accordance with the Servicing Standard. To the extent consistent with the
foregoing and subject to any express limitations and provisions set forth
in this Agreement, the Servicer shall have full power and authority with
respect to each Mortgage Loan and Mortgaged Property (other than any
Specially Serviced Mortgaged Loan and the related Mortgaged Property or
any REO Property and subject to the servicing of the Pari Passu Loan by
the 99-C1 Servicer and the 99-C1 Special Servicer) to do or cause to be
done any and all things that it may deem necessary or desirable in
connection with such servicing and administration, including but not
limited to, the power and authority, subject to the terms hereof, (A) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents
(including, without limitation, estoppel certificates, financing
statements, continuation statements, title endorsements and reports and
other documents and instruments necessary to preserve and maintain the
lien on the related Mortgaged Property and related collateral), (B) to
consent to assignments and assumptions or substitutions, and transfers of
interest of any Mortgagor, in each case subject to and in accordance with
the terms of the related Mortgage Loan and Section 8.7, (C) to collect any
Insurance Proceeds and Liquidation Proceeds, (D) to consent to any
subordinate financings to be secured by any related Mortgaged Property to
the extent that such consent is required pursuant to the terms of the
related Mortgage or which otherwise is required and to administer and
monitor the application of such proceeds and awards in accordance with the
terms of the Mortgage Loan as the Servicer deems reasonable under the
circumstances, (E) to consent to the application of any proceeds of
insurance policies or condemnation awards to the restoration of the
related Mortgaged Property or otherwise, (F) to bring an action in a court
of law or equity to enforce rights of the Trustee and the
Certificateholders with respect to the related Mortgaged Properties, (G)
to execute and deliver, on behalf of the Certificateholders and the
Trustee, documents relating to the management, operation, maintenance,
repair, leasing and marketing of the related Mortgaged Properties,
including agreements and requests by the Mortgagor with respect to
modifications of the standards of operation and management of the
Mortgaged Properties or the replacement of asset managers, (H) to obtain,
release, waive or modify any term other than a Money Term of a Mortgage
Loan and related documents subject to and to the extent permitted by
Section 8.18, (I) to exercise all rights, powers and privileges granted or
provided to the holder of the Mortgage Notes under the terms of the
Mortgage, including all rights of consent or approval
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thereunder, (J) to enter into lease subordination agreements,
non-disturbance and attornment agreements or other leasing or rental
arrangements which may be requested by the Mortgagor or the Mortgagor's
tenants, (K) to join the Mortgagor in granting, modifying or releasing any
easements, covenants, conditions, restrictions, equitable servitudes, or
land use or zoning requirements with respect to the Mortgaged Properties
to the extent such does not adversely affect the value of the related
Mortgage Loan or Mortgaged Property, (L) to execute and deliver, on behalf
of itself, the Trustee, the Trust or any of them, any and all instruments
of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments, with respect to the
Mortgage Loans and with respect to the Mortgaged Properties, and (M) hold
in accordance with the terms of any Mortgage Loan and this Agreement,
Defeasance Collateral. Notwithstanding the above, the Servicer shall have
no power to (i) waive any Yield Maintenance Charges or (ii) consent to any
modification of a Money Term of a Mortgage Loan. Nothing contained in this
Agreement shall limit the ability of the Servicer to lend money to (to the
extent not secured, in whole or in part, by any Mortgaged Property),
accept deposits from and otherwise generally engage in any kind of
business or dealings with any Mortgagor as though the Servicer was not a
party to this Agreement or to the transactions contemplated hereby;
provided, however, that this sentence shall not modify the Servicing
Standard.
(b) The Servicer shall not be obligated to service and
administer the Mortgage Loans which have become and continue to be
Specially Serviced Mortgage Loans, except as specifically provided herein.
The Servicer shall be required to make all calculations and prepare all
reports required hereunder with respect to such Specially Serviced
Mortgage Loans (other than calculations and reports expressly required to
be made by the Special Servicer hereunder) as if no Servicing Transfer
Event had occurred and shall continue to collect all Scheduled Payments,
make Servicing and P&I Advances as set forth herein and to render such
incidental services with respect to such Specially Serviced Mortgage
Loans, all as are specifically provided for herein, but shall have no
other servicing or other duties with respect to such Specially Serviced
Mortgage Loans. The Servicer shall give notice within three Business Days
to the Special Servicer of any collections it receives from any Specially
Serviced Mortgage Loans, subject to changes agreed upon from time to time
by the Special Servicer and the Servicer. The Special Servicer shall
instruct within one Business Day after receiving such notice the Servicer
on how to apply such funds. The Servicer within one Business Day after
receiving such instructions shall apply such funds in accordance with the
Special Servicer's instructions. Each Mortgage Loan that becomes a
Specially Serviced Mortgage Loan shall continue as such until such
Mortgage Loan becomes a Rehabilitated Mortgage Loan. The Servicer shall
not be required to initiate extraordinary collection procedures or legal
proceedings with respect to any Mortgage Loan or to undertake any
pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the
Trustee will sign the Power of Attorney attached hereto as Exhibit S-1.
The Servicer, shall promptly notify the Trustee of the execution and
delivery of any document on behalf of the Trustee under such Power of
Attorney. From time to time until the termination of the Trust, upon
receipt of written request of the Servicer, the Trustee shall furnish the
Servicer with any additional powers of attorney and other documents
necessary or appropriate to enable the Servicer to service and administer
the Mortgage Loans including, without limitation, documents relating to
the management, operation, maintenance, repair, leasing or marketing of
the Mortgaged Properties. The Servicer shall
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indemnify the Trustee for any costs, liabilities and expenses (including
attorneys' fees) incurred by the Trustee in connection with the
intentional or negligent misuse of such power of attorney by the Servicer.
Notwithstanding anything contained herein to the contrary, the Servicer
shall not, without the Trustee's written consent: (I) hire or procure
counsel to represent the Trustee or (II) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents which
have the effect of causing the Trustee to be registered to do business in
any state.
(d) The Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The Servicer shall segregate and hold all funds collected
and received pursuant to any Mortgage Loan (other than the Pari Passu
Loan) constituting Escrow Amounts separate and apart from any of its own
funds and general assets and shall establish and maintain one or more
segregated custodial accounts (each, an "Escrow Account") into which all
Escrow Amounts shall be deposited within one (1) Business Day after
receipt. The Servicer shall also deposit into each Escrow Account any
amounts representing losses on Eligible Investments pursuant to the
immediately succeeding paragraph and any Insurance Proceeds or Liquidation
Proceeds which are required to be applied to the restoration or repair of
any Mortgaged Property pursuant to the related Mortgage Loan. Each Escrow
Account shall be maintained in accordance with the requirements of the
related Mortgage Loan and in accordance with the Servicing Standard.
Withdrawals from an Escrow Account may be made by the Servicer only:
(i) to effect timely payments of items constituting
Escrow Amounts for the related Mortgage Loan;
(ii) to transfer funds to the Certificate Account to
reimburse the Servicer for any Advance relating to Escrow Amounts, but
only from amounts received with respect to the related Mortgage Loan which
represent late collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of
the related Mortgaged Property in accordance with the related Mortgage
Loan and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor
any interest or investment income earned on funds deposited in the Escrow
Account if such income is required to be paid to the related Mortgagor
under applicable law or by the terms of the Mortgage Loan, or otherwise to
the Servicer; and
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(vi) to remove any funds deposited in a Escrow Account
that were not required to be deposited therein or to refund amounts to the
Mortgagors determined to be overages.
Subject to the immediately succeeding sentence, (i) the
Servicer may direct any depository institution or trust company in which
the Escrow Accounts are maintained to invest the funds held therein in one
or more Eligible Investments; provided, however, that such funds shall be
either (x) immediately available or (y) available in accordance with a
schedule which will permit the Servicer to meet the payment obligations
for which the Escrow Account was established; (ii) the Servicer shall be
entitled to all income and gain realized from any such investment of funds
as additional servicing compensation; and (iii) the Servicer shall deposit
from its own funds in the applicable Escrow Account the amount of any loss
incurred in respect of any such investment of funds immediately upon the
realization of such loss. The Servicer shall not direct the investment of
funds held in any Escrow Account and retain the income and gain realized
therefrom if the terms of the related Mortgage Loan or applicable law
permit the Mortgagor to be entitled to the income and gain realized from
the investment of funds deposited therein, and the Servicer shall not be
required to invest amounts on deposit in Escrow Accounts in Eligible
Investments or Eligible Accounts to the extent that the Servicer is
required by either law or under the terms of any related Mortgage Loan to
deposit or invest such amounts in another type of investments or accounts.
In the event the Servicer is not entitled to direct the investment of such
funds, (1) the Servicer shall direct the depository institution or trust
company in which such Escrow Accounts are maintained to invest the funds
held therein in accordance with the Mortgagor's written investment
instructions, if the terms of the related Mortgage Loan or applicable law
require the Servicer to invest such funds in accordance with the
Mortgagor's directions; and (2) in the absence of appropriate written
instructions from the Mortgagor, the Servicer shall have no obligation to,
but may be entitled to, direct the investment of such funds; provided,
however, that in either event (i) such funds shall be either (y)
immediately available or (z) available in accordance with a schedule which
will permit the Servicer to meet the payment obligations for which the
Escrow Account was established, and (ii) the Servicer shall have no
liability for any loss in investments of such funds that are invested
pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Servicer and the Special
Servicer to the Trustee and to each other under this Agreement is intended
by the parties to be that of an independent contractor and not of a joint
venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the
terms of the related Mortgage Loan, any Lock-Box Agreement or similar
agreement, the Servicer shall establish and maintain, in accordance with
the Servicing Standard, one or more lock-box, cash management or similar
accounts ("Lock-Box Accounts") to be held outside the Trust and maintained
by the Servicer in accordance with the terms of the related Mortgage. No
Lock-Box Account is required to be an Eligible Account. The Servicer shall
apply the funds deposited in such accounts in accordance with terms of the
related Mortgage, any Lock-Box Agreement and in accordance with the
Servicing Standard.
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(h) The Servicer shall not permit defeasance of any Mortgage
Loan on or before the second anniversary of the Closing Date unless such
defeasance will not result in an Adverse REMIC Event and the Servicer has
received an opinion of counsel to such effect and all items in the
following sentence have been satisfied. Subsequent to the second
anniversary of the Closing Date, to the extent that the Servicer can, in
accordance with the related Mortgage Loan, require defeasance of any
Mortgage Loan in lieu of accepting a prepayment of principal thereunder,
including a prepayment of principal accompanied by a Yield Maintenance
Charge, if any, the Servicer shall, to the extent it is not inconsistent
with the Servicing Standard, require such defeasance (or partial
defeasance if permitted under the related Mortgage Loan), provided that
(i) the defeasance collateral consists of U.S. Treasury obligations, (ii)
the Servicer has determined that the defeasance will not result in an
Adverse REMIC Event, (iii) either (A) the related Mortgagor designates a
Single-Purpose Entity (if the Mortgagor no longer complies) to own the
Defeasance Collateral or (B) the Servicer has established for the benefit
of the Trust a Single-Purpose Entity to hold all Defeasance Collateral
relating to the Defeasance Loans, and (iv) the Servicer has requested and
received from the Mortgagor (A) an opinion of counsel generally to the
effect that the Trustee will have a perfected, first priority security
interest in such Defeasance Collateral and (B) written confirmation from a
firm of independent accountants stating that payments made on such
Defeasance Collateral in accordance with the terms thereof will be
sufficient to pay the subject Mortgage Loan (or the portion thereof in
connection with a partial defeasance) in full on or before its Maturity
Date (or, in the case of an ARD Loan, on or before its Anticipated
Repayment Date) and to timely pay each Scheduled Payment to be due prior
thereto but after the defeasance. If the terms of the Mortgage Loan permit
the Servicer to impose the foregoing requirements, no Rating Agency
Confirmation from DCR or Fitch IBCA is required but the Servicer shall
provide notice thereof to the Rating Agencies. If, however, the terms of
the Mortgage Loan do not permit the Servicer to impose such requirements,
the Servicer shall obtain a Rating Agency Confirmation from DCR and Fitch
IBCA in connection with such Defeasance Loan. Any customary and reasonable
out-of-pocket expense incurred by the Servicer pursuant to this Section
8.3(h) shall be paid by the Mortgagor of the Defeasance Loan pursuant to
the related Mortgage, Mortgage Note or other pertinent document, if so
allowed by the terms of such documents. In addition, the Servicer shall be
entitled to collect from the Mortgagor any customary fees in connection
with any defeasance or partial defeasance.
(i) The Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a ground lease,
promptly (and in any event within 45 days of the Closing Date) notify the
related ground lessor of the transfer of such Mortgage Loan to the Trust
pursuant to this Agreement and inform such ground lessor that any notices
of default under the related Ground Lease should thereafter be forwarded
to the Servicer.
(j) Pursuant to the Pari Passu Intercreditor Agreement, the
owner of the Pari Passu Loan has agreed that such owner's rights in, to
and under the Pari Passu Loan is subject to the servicing and all other
rights of the 99-C1 Servicer and the 99-C1 Special Servicer and the 99-C1
Servicer and the 99-C1 Special Servicer are authorized and obligated to
service and administer the Pari Passu Loan pursuant to the 99-C1 Pooling
and Servicing Agreement. Notwithstanding anything herein to the contrary,
the parties hereto acknowledge and agree that the Servicer's obligations
and responsibilities hereunder and the Servicer's authority with respect
to the Pari Passu Loan are limited by and subject to the terms of the Pari
Passu Intercreditor
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Agreement and the rights of the 99-C1 Servicer and the 99-C1 Special
Servicer with respect thereto under the 99-C1 Pooling and Servicing
Agreement. The Servicer shall use reasonable best efforts consistent with
the Servicing Standard to monitor the servicing of the Pari Passu Loan by
the 99-C1 Servicer and the 99-C1 Special Servicer pursuant to the 99-C1
Pooling and Servicing Agreement and shall enforce the rights of the
Trustee (as holder of the Pari Passu Loan) under the 99-C1 Pooling and
Servicing Agreement. The Servicer shall take such actions as it shall deem
reasonably necessary to facilitate the servicing of the Pari Passu Loan by
the 99-C1 Servicer and the 99-C1 Special Servicer including, but not
limited to, delivering appropriate Requests for Release to the Trustee and
Custodian (if any) in order to deliver any portion of the related Mortgage
File to the 99-C1 Servicer or 99-C1 Special Servicer under the 99-C1
Pooling and Servicing Agreement.
SECTION 8.4 SUB-SERVICING. The Servicer may appoint one or
more sub-servicers (each, a "Sub-Servicer") to perform all or any portion
of its duties hereunder for the benefit of the Trustee and the
Certificateholders. The Servicer shall supervise, administer, monitor,
enforce and oversee the servicing of the applicable Mortgage Loans by any
Sub-Servicer appointed by it. The terms of any arrangement or agreement
between the Servicer and a Sub-Servicer, shall provide that such agreement
or arrangement may be terminated, without cause and without the payment of
any termination fees, by the Trustee in the event such Servicer is
terminated in accordance with this Agreement. In addition, neither the
Trustee nor the Paying Agent nor the Certificateholders shall have any
direct obligation or liability (including, without limitation,
indemnification obligations) with respect to any Sub-Servicer. The
Servicer shall pay the costs of enforcement against any of its
Sub-Servicers at its own expense, but shall be reimbursed therefor only
(i) from a general recovery resulting from such enforcement only to the
extent that such recovery exceeds all amounts due in respect of the
related Mortgage Loans or (ii) from a specific recovery of costs, expenses
or attorneys fees against the party against whom such enforcement is
directed. Notwithstanding the provisions of any sub-servicing agreement,
any of the provisions of this Agreement relating to agreements or
arrangements between the Servicer or a Sub-Servicer, or reference to
actions taken through a Sub-Servicer or otherwise, the Servicer shall
remain obligated and liable to the Trustee and the Certificateholders for
the servicing and administering of the applicable Mortgage Loans in
accordance with (and subject to the limitations contained within) the
provisions of this Agreement without diminution of such obligation or
liability by virtue of indemnification from a Sub-Servicer and to the same
extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Mortgage Loans.
SECTION 8.5 SERVICER MAY OWN CERTIFICATES. The Servicer and
any agent of the Servicer in its individual or any other capacity may
become the owner or pledgee of Certificates with the same rights it would
have if it were not the Servicer or such agent; provided, however that if
the Servicer is Xxxxx Fargo Bank, National Association, then the Servicer
may not purchase any Certificate for a price greater than such
Certificates' fair market value. Any such interest of the Servicer or such
agent in the Certificates shall not be taken into account when evaluating
whether actions of the Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions
may have the effect of benefiting the Class or Classes of Certificates
owned by the Servicer.
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SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE,
TAXES AND OTHER. Subject to the limitations set forth below, the Servicer
shall use reasonable efforts consistent with the Servicing Standard to
cause the related Mortgagor to maintain for each Mortgage Loan (other than
any REO Mortgage Loan), and if the related Mortgagor does not so maintain,
the Servicer shall cause to be maintained with a Qualified Insurer, (A) a
Standard Hazard Insurance Policy which does not provide for reduction due
to depreciation in an amount that is at least equal to the lesser of (i)
the full replacement cost of improvements securing such Mortgage Loan or
(ii) the outstanding principal balance of such Mortgage Loan, but, in any
event, in an amount sufficient to avoid the application of any
co-insurance clause and (B) any other insurance coverage for a Mortgage
Loan which the related Mortgagor is required to maintain under the related
Mortgage, provided the Servicer shall not be required to maintain
earthquake insurance on any Mortgaged Property unless such insurance was
required at origination and is available at commercially reasonable rates;
provided, however, that the Special Servicer shall have the right, but not
the duty, to obtain, at its own expense, earthquake insurance on any
Mortgaged Property. Each Standard Hazard Insurance Policy maintained with
respect to any Mortgaged Property that is not an REO Property shall
contain, or have an accompanying endorsement that contains, a standard
mortgagee clause.
If the Mortgaged Property is located in a designated special flood
hazard area by the Federal Emergency Management Agency in the Federal
Register, as amended from time to time (to the extent permitted under the
related Mortgage Loan or as required by law), the Servicer (with respect
to any Mortgaged Property that is not an REO Property) shall cause flood
insurance to be maintained. Such flood insurance shall be in an amount
equal to the lesser of (i) the unpaid principal balance of the related
Mortgage Loan or (ii) the maximum amount of such insurance available for
the related Mortgaged Property under the national flood insurance program,
if the area in which such Mortgaged Property is located is participating
in such program. Any amounts collected by the Servicer under any such
policies (other than amounts to be applied to the restoration or repair of
the related Mortgaged Property or property thus acquired or amounts
released to the Mortgagor in accordance with the terms of the applicable
Mortgage Loan) shall be deposited in the Certificate Account.
Any cost (such as insurance premiums and insurance broker fees
but not internal costs and expenses of obtaining such insurance) incurred
by the Servicer in maintaining any insurance pursuant to this Section 8.6
shall not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Paying Agent for their benefit,
be added to the principal balance of the Mortgage Loan, notwithstanding
that the terms of the Mortgage Loan so permit. Such costs shall be paid as
a Servicing Advance by the Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Servicer shall have no
obligation beyond using its reasonable efforts consistent with the
Servicing Standard to enforce such insurance requirements. Furthermore,
the Servicer shall not be required in any event to maintain or obtain
insurance coverage beyond what is reasonably available at a cost
customarily acceptable and consistent with the Servicing Standard. The
Servicer shall notify the Trustee in the event it makes such
determination.
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The Servicer shall conclusively be deemed to have satisfied
its obligations as set forth in the first paragraph of this Section 8.6
either (i) if the Servicer shall have obtained and maintained a master
force placed or blanket insurance policy insuring against hazard losses on
all of the applicable Mortgage Loans serviced by it, it being understood
and agreed that such policy may contain a deductible clause on terms
substantially equivalent to those commercially available and maintained by
comparable servicers consistent with the Servicing Standard, and provided
that such policy is issued by a Qualified Insurer with a minimum claims
paying ability rating of "A" (or an equivalent rating) from the Rating
Agencies or otherwise approved by the Rating Agencies or (ii) if the
Servicer, provided that its long-term rating is not less than "BBB" by
Fitch IBCA (if rated by Fitch IBCA, and if not rated by Fitch IBCA, then
otherwise acceptable to Fitch IBCA) and "BBB" by DCR, self-insures for its
obligations as set forth in the first paragraph of this Section 8.6. In
the event that the Servicer shall cause any Mortgage Loan to be covered by
such a master force placed or blanket insurance policy, the incremental
cost of such insurance allocable to such Mortgage Loan (i.e., other than
any minimum or standby premium payable for such policy whether or not any
Mortgage Loan is then covered thereby), if not borne by the related
Mortgagor, shall be paid by the Servicer as a Servicing Advance. If such
policy contains a deductible clause, the Servicer shall, if there shall
not have been maintained on the related Mortgaged Property a policy
complying with this Section 8.6 and there shall have been a loss that
would have been covered by such policy, deposit in the Certificate Account
the amount not otherwise payable under such master force placed or blanket
insurance policy because of such deductible clause to the extent that such
deductible exceeds (i) the deductible under the related Mortgage Loan or
(ii) if there is no deductible limitation required under the Mortgage
Loan, the deductible amount with respect to insurance policies generally
available on properties similar to the related Mortgaged Property which is
consistent with the Servicing Standard, and deliver to the Trustee an
Officer's Certificate describing the calculation of such amount. In
connection with its activities as administrator and servicer of the
Mortgage Loans, the Servicer agrees to present, on its behalf and on
behalf of the Trustee, claims under any such master force placed or
blanket insurance policy.
With respect to each Mortgage Loan, the Servicer shall
maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that
are or may become a lien on the related Mortgaged Property and the status
of insurance premiums payable with respect thereto. From time to time, the
Servicer (other than with respect to REO Mortgage Loans and Mortgage Loans
that do not provide for such amounts to be escrowed) shall (i) obtain all
bills for the payment of such items (including renewal premiums), and (ii)
effect payment of all such bills, taxes and other assessments with respect
to such Mortgaged Properties prior to the applicable penalty or
termination date, in each case employing for such purpose Escrow Amounts
as allowed under the terms of the related Mortgage Loan. If a Mortgagor
fails to make any such payment on a timely basis or collections from the
Mortgagor are insufficient to pay any such item before the applicable
penalty or termination date, the Servicer in accordance with the Servicing
Standard shall use its reasonable efforts to pay as a Servicing Advance
the amount necessary to effect the payment of any such item, subject to
Section 4.4 hereof. No costs incurred by the Servicer, the Trustee or the
Fiscal Agent as the case may be, in effecting the payment of taxes and
assessments on the Mortgaged Properties and related insurance premiums
shall, for the purpose of calculating distributions to
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Certificateholders, be added to the principal balance of the Mortgage
Loans, notwithstanding that the terms of such Mortgage Loans so permit.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES AND
DUE-ON-ENCUMBRANCE CLAUSES; ASSUMPTION AGREEMENTS.
(a) In the event the Servicer receives a request from a
Mortgagor pursuant to the provisions of any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) that expressly permits the assignment of
the related Mortgaged Property to, and assumption of such Mortgage Loan
by, another Person, the Servicer shall obtain relevant information for
purposes of evaluating such request. If the Servicer recommends to approve
such assignment, the Servicer shall provide to the Special Servicer a copy
of such recommendation and the materials upon which such recommendation is
based and (A) the Special Servicer shall have the right hereunder to grant
or withhold consent to any such request for such assignment and assumption
in accordance with the terms of the Mortgage Loan and this Agreement, and
the Special Servicer shall not unreasonably withhold such consent and any
such decision of the Special Servicer shall be in accordance with the
Servicing Standard, (B) failure of the Special Servicer to notify the
Servicer in writing, within five Business Days following the Servicer's
delivery of the recommendation described above and the relevant loan
information on which the recommendation is based, of its determination to
grant or withhold such consent shall be deemed to constitute a grant of
such consent and (C) the Servicer shall not permit any such assignment or
assumption unless it has received the written consent of the Special
Servicer or such consent has been deemed to have been granted as described
in the preceding sentence. Upon consent or deemed consent by the Special
Servicer to such proposed assignment and assumption, the Servicer shall
process such request of the related Mortgagor and shall be authorized to
enter into an assignment and assumption or substitution agreement with the
Person to whom the related Mortgaged Property has been or is proposed to
be conveyed, and/or release the original Mortgagor from liability under
the related Mortgage Loan and substitute as obligor thereunder the Person
to whom the related Mortgaged Property has been or is proposed to be
conveyed; provided, however, that the Servicer shall not enter into any
such agreement to the extent that any terms thereof would result in an
Adverse REMIC Event or create any lien on a Mortgaged Property that is
senior to, or on parity with, the lien of the related Mortgage. To the
extent permitted by applicable law, the Servicer shall not enter into such
an assumption or substitution agreement unless the credit status of the
prospective new Mortgagor is in compliance with the Servicer's regular
commercial mortgage origination or servicing standards and criteria. The
Servicer shall notify the Trustee, the Paying Agent and the Special
Servicer of any assignment and assumption or substitution agreement
executed pursuant to this Section 8.7(a). The Servicer shall be entitled
to (as additional servicing compensation) 50% of any assumption fee
collected from a Mortgagor in connection with an assignment and assumption
or substitution executed pursuant to this Section 8.7(a) and the Special
Servicer shall be entitled to (as additional special servicing
compensation) the other 50% of such fee (other than any such fee payable
in connection with the Pari Passu Loan).
(b) Other than with respect to the assignment and assumptions
referred to in subsection (a) above, if any Mortgage Loan that is not a
Specially Serviced Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, (i) provides that such Mortgage Loan
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shall (or may at the mortgagee's option) become due and payable upon the
sale of the related Mortgaged Property, or (ii) provides that such
Mortgage Loan may not be assumed without the consent of the related
mortgagee in connection with any such sale or other transfer, then, the
Special Servicer, on behalf of the Trust, and not the Servicer, shall
either (i) enforce such due-on-sale clause or (ii) if it believes such
action would be in the best economic interest of the Trust, waive the
effect of such provision; provided, however, that if the Principal Balance
of such Mortgage Loan at such time equals or exceeds the Review Threshold,
then prior to waiving the effect of such provision, the Special Servicer
shall obtain Rating Agency Confirmations regarding such waiver. The
Special Servicer shall not waive a due-on-sale clause until and unless the
Rating Agencies shall have approved such action. With respect to a
Mortgage Loan with a "due-on-encumbrance" clause, the Servicer (with
respect to Mortgage Loans that are not Specially Serviced Mortgage Loans)
and the Special Servicer (with respect to any Specially Serviced Mortgage
Loan) will be required to exercise (or waive its right to exercise) any
right it may have (i) to accelerate the payments thereon, or (ii) to
withhold its consent to the creation of any additional lien or other
encumbrance, consistent with the Servicing Standard. However, the Servicer
will not be permitted to waive a due-on-encumbrance provision in
connection with the creation of additional debt secured by the related
Mortgaged Property without (i) the consent of the Special Servicer (except
that the Special Servicer will be deemed to have consented if it does not
respond to written notice requesting such consent within five Business
Days after it has received such notice including the pertinent portions of
the related Mortgage File, or copies thereof), and (ii) obtaining a Rating
Agency Confirmation from each Rating Agency.
(c) The Special Servicer shall have no liability, and shall be
indemnified by the Trust, for any liability to the Mortgagor or the
proposed assignee, for any delay in responding to requests for assumption,
if the same shall occur as a result of the failure of the Rating Agencies,
or any of them, to respond to such request in a reasonable period of time.
In connection with the request for such consent, the Special Servicer
shall prepare and deliver to DCR a memorandum outlining its analysis and
recommendation in accordance with the Servicing Standard, together with
copies of all relevant documentation. The Special Servicer shall also
prepare and provide DCR with such memorandum and documentation for all
transfer, assumption and encumbrance consents granted for Mortgage Loans
below the Review Threshold, but for which the Special Servicer's decision
will be sufficient and a Rating Agency Confirmation is not required. The
Special Servicer shall promptly forward copies of the assignment and
assumption documents relating to any Mortgage Loan to the Servicer, the
Paying Agent and the Trustee, and the Servicer shall promptly thereafter
forward such documents to the Rating Agencies. The Special Servicer shall
be entitled to (as additional special servicing compensation) 100% of any
fee collected from a Mortgagor in connection with the Special Servicer
granting or withholding such consent (other than any such fee payable in
connection with the Pari Passu Loan).
(d) The Servicer shall have the right to consent to any
transfers of interest of a Mortgagor, to the extent such transfer is
allowed under the terms of the related Mortgage Loan, including any
consent to transfer to any subsidiary or affiliate of Mortgagor or to a
person acquiring less than a majority interest in the Mortgagor. The
Servicer shall be entitled to collect and receive from Mortgagors any
customary fees in connection with such transfers of interest as additional
servicing compensation.
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(e) The Trustee for the benefit of the Certificateholders
shall execute any necessary instruments in the form presented to it and
reasonably acceptable to it by the Servicer (pursuant to subsection (a))
or the Special Servicer (pursuant to subsection (b)) for such assignments
and assumptions agreements. Upon the closing of the transactions
contemplated by such documents, the Servicer shall cause the originals of
the assignment and assumption agreement, the release (if any), or the
modification or supplement to the Mortgage Loan to be delivered to the
Custodian (or, if there is no Custodian, the Trustee) except to the extent
such documents have been submitted to the recording office, in which event
the Servicer shall promptly deliver copies of such documents to the
Custodian (or, if there is no Custodian, the Trustee) and the Special
Servicer.
(f) The Servicer (only with respect to Mortgage Loans other
than Specially Serviced Mortgage Loans) and the Special Servicer (only
with respect to Specially Serviced Mortgage Loans) shall not permit a
Mortgage Loan to be assumed unless the Servicer or the Special Servicer,
as the case may be, determines that the assumption is consistent with the
Servicing Standard and the Mortgage Loan documents. In making such
determination, the Servicer or the Special Servicer, as the case may be,
shall, among other things, take into account, subject to the Servicing
Standard and the Mortgage Loan documents, any increase in taxes (based on
a fully assessed number calculated off of the proposed purchase price) as
a result of the transfer. The Servicer or the Special Servicer, as the
case may be, shall compute a debt service coverage ratio for the Mortgage
Loan using leasing commissions, tenant improvement costs and capital
expenditures deducted from cash flow in amounts equal to the originator's
capital expenditures, tenant improvement costs and leasing commission
items at origination and taxes based on a fully assessed number calculated
off of the proposed purchase price and shall provide copies of the results
of such calculation to each Rating Agency showing a comparison of the
recalculated debt service coverage ratio versus the debt service coverage
ratio at origination.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE
FILES. Upon the payment in full of any Mortgage Loan, satisfaction or
discharge in full of any Specially Serviced Mortgage Loan or the receipt
by the Servicer of a notification that payment in full (or such payment,
if any, in connection with the satisfaction and discharge in full of any
Specially Serviced Mortgage Loan) will be escrowed in a manner customary
for such purposes, and upon notification to the Trustee and Custodian (if
any) by the Servicer in the form of a certification (which certification
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be
deposited in the Certificate Account have been or will be so deposited) of
a Servicing Officer and the delivery of a request for release of the
Trustee Mortgage File in the form of Exhibit C hereto to the Trustee and
the Custodian (if any), the Custodian (or, if there is no Custodian, the
Trustee) shall promptly release the related Trustee Mortgage File to the
Servicer and the Trustee shall execute and deliver to the Servicer the
deed of reconveyance or release, satisfaction or assignment of mortgage or
such instrument releasing the lien of the Mortgage, as directed by the
Servicer together with the Mortgage Note with written evidence of
cancellation thereon. The provisions of the immediately preceding sentence
shall not, in any manner, limit or impair the right of the Servicer to
execute and deliver, on behalf of the Trustee, the Certificateholders or
any of them, any and all instruments of satisfaction, cancellation or
assignment without recourse, representation or warranty, or of partial or
full release or discharge and all other comparable instruments, with
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respect to the Mortgage Loans, and with respect to the Mortgaged
Properties held for the benefit of the Certificateholders. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Distribution Account but shall be
paid by the Servicer except to the extent that such expenses are paid by
the related Mortgagor in a manner consistent with the terms of the related
Mortgage and applicable law. From time to time and as shall be appropriate
for the servicing of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any Servicer Fidelity Bond
or Errors or Omissions Policy, or for the purposes of effecting a partial
or total release of any Mortgaged Property from the lien of the Mortgage
or the making of any corrections to the Mortgage Note or the Mortgage or
any of the other documents included in the Trustee Mortgage File, the
Custodian (or, if there is no Custodian, the Trustee) shall, upon request
of the Servicer and the delivery to the Trustee and Custodian (if any) of
a Request for Release signed by a Servicing Officer, in the form of
Exhibit C hereto, release the Trustee Mortgage File to the Servicer or the
Special Servicer, as the case may be.
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
SERVICER TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE
CERTIFICATEHOLDERS. Notwithstanding any other provisions of this
Agreement, the Servicer shall transmit to the Trustee and Custodian (if
any), to the extent required by this Agreement, all documents and
instruments coming into the possession of the Servicer from time to time
and shall account fully to the Trustee and Paying Agent for any funds
received or otherwise collected thereby, including Liquidation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Servicer Mortgage
Files and funds collected or held by, or under the control of, the
Servicer in respect of any Mortgage Loans, whether from the collection of
principal and interest payments or from Liquidation Proceeds or Insurance
Proceeds, including any funds on deposit in the Certificate Account, shall
be held by the Servicer for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property
of the Trustee, subject to the applicable provisions of this Agreement.
The Servicer agrees that it shall not create, incur or subject any
Servicer Mortgage Files or Trustee Mortgage File or any funds that are
deposited in the Certificate Account or any Escrow Account, or any funds
that otherwise are or may become due or payable to the Trustee or the
Paying Agent, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance, or assert by legal action or otherwise
any claim or right of setoff against any Servicer Mortgage Files or
Trustee Mortgage File or any funds collected on, or in connection with, a
Mortgage Loan, except, however, that the Servicer shall be entitled to
receive from any such funds any amounts that are properly due and payable
to the Servicer under this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the Servicer
shall be entitled to the Servicing Fee, which shall be payable by the
Trust from amounts held in the Certificate Account or otherwise collected
from the Mortgage Loans as provided in Section 5.2.
(b) Additional servicing compensation in the form of
assumption fees, defeasance fees, partial defeasance fees, extension fees,
servicing fees, default interest payable at a rate above the Mortgage
Rate, Modification Fees, forbearance fees, Late Fees (net of Advance
Interest) or other usual and customary charges and fees actually received
from Mortgagors shall
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be retained by the Servicer, provided that the Servicer shall be entitled
to (i) receive 50% of assumption fees collected on Mortgage Loans as
provided in Section 8.7(a), (ii) Modification Fees as provided in Section
8.18 hereof; and (iii) 100% of any extension fees collected from the
related Mortgagor in connection with the extension of the Maturity Date of
any Mortgage Loan as provided in Section 8.18; provided, however, that the
Servicer shall not be entitled to any such fees specified in this clause
(b) in connection with any Specially Serviced Mortgage Loans or the Pari
Passu Loan. If the Servicer collects any amount payable to the Special
Servicer hereunder in connection with a REO Mortgage Loan or Specially
Serviced Mortgage Loan, the Servicer shall promptly remit such amount to
the Special Servicer as provided in Section 5.2. The Servicer shall be
required to pay all applicable expenses incurred by it in connection with
its servicing activities hereunder.
(c) Notwithstanding any other provision herein, the Servicing
Fee for each monthly period relating to each Determination Date shall be
reduced by an amount equal to the Compensating Interest (if any) relating
to Mortgage Loans which are not Specially Serviced Mortgage Loans for such
Determination Date.
(d) The Servicer shall also be entitled to additional
servicing compensation of (i) an amount equal to the excess, if any, of
the aggregate Prepayment Interest Excess relating to Mortgage Loans which
are not Specially Serviced Mortgage Loans for each Distribution Date over
the aggregate Prepayment Interest Shortfalls for such Mortgage Loans for
such Distribution Date, (ii) interest or other income earned on deposits
in the Certificate Account and the Distribution Account (but only to the
extent of the net investment earnings, if any, with respect to each such
account), and, (iii) to the extent not required to be paid to any
Mortgagor under applicable law, any interest or other income earned on
deposits in the Escrow Accounts.
SECTION 8.11 SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) On or prior to the first Report Date, the Servicer shall
deliver to the Paying Agent the Loan Setup File; provided that the
Servicer's obligation with respect to information contained therein shall
be limited to the extent of the information contained in the data file
provided with the Prospectus Supplement. For each Distribution Date, (i)
the Servicer shall deliver to the Paying Agent, no later than the related
Report Date, the Servicer Remittance Report and the Loan Periodic Update
File with respect to such Distribution Date and (ii) the Servicer shall
deliver to the Paying Agent on the related Advance Report Date, the amount
of P&I Advance to be made by the Servicer on the related Servicer
Remittance Date. The Special Servicer is required to provide all
information relating to Specially Serviced Mortgage Loans in order for the
Servicer to satisfy its duties in this Section 8.11.
(b) The Servicer shall deliver to the Trustee, the Paying
Agent and the Special Servicer within 30 days following each Distribution
Date a statement setting forth the status of the Certificate Account as of
the close of business on such Distribution Date showing, for the period
covered by such statement, the aggregate of deposits in or withdrawals
from the Certificate Account.
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(c) The Servicer shall promptly inform the Special Servicer of
the name, account number, location and other necessary information
concerning the Certificate Account in order to permit the Special Servicer
to make deposits therein.
(d) The Servicer shall deliver to the Special Servicer within
30 days after receipt any annual, monthly or quarterly financial
statements the Servicer receives from any Mortgagor relating to the
Mortgage Loans. The Servicer shall, upon request, deliver to the Rating
Agencies, the Trustee, the Paying Agent, the Operating Adviser and the
Depositor any such reports within 30 days after receipt. Except as
provided in Section 8.14, the Servicer shall have no duty to conform or
normalize any of the data or information contained in such statements. The
Servicer shall be entitled to deliver such reports in an electronic format
reasonably acceptable to the recipient.
(e) The Servicer shall deliver a copy of any reports or
information delivered to the Trustee or the Paying Agent pursuant to
subsection (a) or subsection (b) of this Section 8.11 to the Depositor,
the Special Servicer and each Rating Agency, in each case upon request by
such Person and only to the extent such reports and information are not
otherwise required to be delivered to such Person under any provision of
this Agreement.
(f) On each Servicer Remittance Date, the Servicer shall
deliver or cause to be delivered to the Paying Agent the CMSA Report with
respect to the Mortgage Loans (and, if applicable, the related REO
Properties) providing the required information as of the related
Determination Date and, to the extent received from the 99-C1 Servicer,
the Pari Passu Loan. The information that pertains to Specially Serviced
Mortgage Loans and REO Properties reflected in such reports shall be based
solely upon the reports delivered by the Special Servicer to the Servicer
in writing and on a computer readable medium reasonably acceptable to the
Servicer and the Special Servicer on the Determination Date prior to the
related Servicer Remittance Date in the form required under Section
9.32(a). The Servicer's responsibilities under this Section 8.11(f) with
respect to REO Loans and Specially Serviced Mortgage Loans shall be
subject to the satisfaction of the Special Servicer's obligations under
Section 9.32(a).
(g) For each Distribution Date, the Servicer shall deliver to
the Paying Agent, not later than the related Report Date, a Servicer Watch
List. The Servicer shall list any Mortgage Loan on the Servicer Watch List
as to which any of the following events have occurred: (i) Mortgage Loans
having a current Debt Service Coverage Ratio that is 80% or less of the
Debt Service Coverage Ratio listed for such Mortgage Loan on Annex A to
the Prospectus Supplement or having a Debt Service Coverage Ratio that is
less than 1.00x, (ii) Mortgage Loans as to which any required inspection
of the related Mortgaged Property conducted by the Servicer indicates a
problem that the Servicer determines can reasonably be expected to
materially adversely affect the cash flow generated by such Mortgaged
Property, (iii) Mortgage Loans which have come to the Servicer's attention
in the performance of its duties under this Agreement, in respect of which
(A) any tenant occupying 25% or more of the space in the related Mortgaged
Property has vacated (without being replaced by a comparable tenant and
lease) or is the subject of bankruptcy or similar proceedings or (B) any
Mortgagor or an affiliate thereof has been the subject of bankruptcy or
similar proceedings, (iv) Mortgage Loans that are at least 30 days
delinquent in payment, (v) Mortgage Loans that are within 60 days of
maturity, (vi) a draw on a letter of credit or the use of any reserve to pay
debt service on a Mortgage Loan, (vii) the establishment of a reserve or a
lockbox for a Mortgage Loan after the Closing Date, and (viii) any other events
identified by the Operating Adviser and agreed to by the Servicer.
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SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. The Servicer
shall deliver to the Depositor, the Paying Agent and the Trustee on or
before the Report Date occurring in May of each year, commencing in May
2001, an Officer's Certificate stating, as to the signer thereof, that (A)
a review of the activities of the Servicer during the preceding calendar
year or portion thereof and of the performance of the Servicer under this
Agreement has been made under such officer's supervision and (B) to the
best of such officer's knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement in all material
respects throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof. The Servicer shall forward
a copy of each such statement to the Rating Agencies.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
REPORT. On or before the Report Date occurring in May of each year,
commencing in May 2001, the Servicer shall cause a firm of nationally
recognized independent public accountants that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Depositor, the Operating Adviser and the Trustee to the effect that such
firm has examined certain documents and records relating to the servicing
of the Mortgage Loans and that, on the basis of such examination conducted
substantially in compliance with the Uniform Single Attestation Program
for Mortgage Bankers ("USAP") or the Audit Program for Mortgages serviced
for FHLMC (the "FHLMC Audit Program"), the servicing for the preceding
calendar year has been conducted in compliance with such agreements except
for such significant exceptions or errors in records that, in the opinion
of such firm, the USAP or FHLMC Audit Program require it to report. The
Servicer shall forward a copy of each such report to the Rating Agencies.
SECTION 8.14 OPERATING STATEMENT ANALYSIS REPORTS REGARDING
THE MORTGAGED PROPERTIES. Not later than the Report Date occurring in July
of each year, beginning in July 2001, the Servicer shall deliver to the
Paying Agent (who shall make such report available via the Paying Agent's
Website as set forth in Section 5.4) an Operating Statement Analysis
Report for each Mortgage Loan in an electronic format reasonably
acceptable to each of the Paying Agent and the Servicer, based on the most
recently available year-end financial statements and most recently
available rent rolls of each applicable Mortgagor (to the extent provided
to the Servicer by or on behalf of each Mortgagor, or, in the case of
Specially Serviced Mortgaged Loans, as provided to the Special Servicer,
which Special Servicer shall forward such information to the Servicer on
or before April 15 of each such year), containing such information and
analyses for each Mortgage Loan as would customarily be included in
accordance with the Servicing Standard including, without limitation, Debt
Service Coverage Ratios and income; subject, in the case of the Pari Passu
Loan, to the receipt of such report from the 99-C1 Servicer or 99-C1
Special Servicer. The Servicer shall make reasonable efforts, consistent
with the Servicing Standard, to obtain such reports from the 99-C1
Servicer or 99-C1 Special Servicer. The Servicer shall deliver such report
upon request to the Trustee, the Placement Agent, the Underwriter, the
Rating Agencies, the Operating Adviser and the Depositor. In addition,
upon request the Servicer shall make available to the Special Servicer,
the Paying Agent and the Trustee, within 30 days following receipt thereof
by the Servicer, copies of any operating statements and rent rolls
collected with respect to the Mortgaged Properties. As and to the extent
reasonably requested by the Special Servicer, the Servicer shall make
inquiry of any Mortgagor
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with respect to such information or as regards the performance of the
related Mortgage Property in general. The Paying Agent shall provide or
make available either electronically or, if requested by a
Certificateholder or Certificate Owner in writing, by first class mail at
no cost to such Certificateholder or Certificate Owner, of such Operating
Statement Analysis Reports pursuant to Section 5.4(a).
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS
OF THE SERVICER.
(a) Subject to paragraphs (b), (c) and (d) below, the Servicer
shall make available at its offices primarily responsible for servicing
the Mortgage Loans, during normal business hours, upon reasonable advance
written notice for review by any Certificateholder, any Certificate Owner,
any Placement Agent, any Underwriter, each Rating Agency, the Paying Agent
or the Depositor, originals or copies of, among other things, the
following items: (i) this Agreement and any amendments thereto, (ii) all
reports and statements delivered to the Paying Agent since the Closing
Date, (iii) all Officer's Certificates (including Officer's Certificates
evidencing any determination of Nonrecoverable Advances) delivered to the
Trustee and the Paying Agent since the Closing Date, (iv) all accountants'
reports delivered to the Trustee and the Paying Agent since the Closing
Date, (v) the most recent property Inspection Reports in the possession of
the Servicer in respect of each Mortgaged Property, (vi) the most recent
Mortgaged Property annual operating statement and rent roll, if any,
collected by or on behalf of the Servicer or the Special Servicer, (vii)
any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into by the Servicer and/or the Special Servicer,
(viii) any Appraisal obtained by the Special Servicer, and (ix) any and
all Officers' Certificates (and attachments thereto) delivered to the
Trustee and the Paying Agent to support the Servicer's determination that
any Advance was not or, if made, would not be, recoverable. The Servicer
will be permitted to require payment of a sum to be paid by the requesting
party (other than the Rating Agencies, the Trustee, the Paying Agent,
Placement Agents or Underwriters) sufficient to cover the reasonable costs
and expenses of making such information available.
(b) Subject to the restrictions described below, the Servicer
shall afford the Rating Agencies, the Depositor, the Trustee, the Paying
Agent, the Special Servicer, the Placement Agents, the Underwriters, the
Operating Adviser, any Certificateholder or Certificate Owner, upon
reasonable notice and during normal business hours, reasonable access to
all information referred to in Section 8.15(a) and any additional
relevant, non-attorney-client-privileged records and documentation
regarding the applicable Mortgage Loans, REO Property and all accounts,
insurance policies and other relevant matters relating to this Agreement,
and access to Servicing Officers of the Servicer responsible for its
obligations hereunder. Copies of information or access will be provided to
Certificateholders and each Certificate Owner providing satisfactory
evidence of ownership of Certificates or beneficial ownership of a
Certificate, as the case may be. Copies (or computer diskettes or other
digital or electronic copies of such information if reasonably available
in lieu of paper copies) of any and all of the foregoing items shall be
made available by the Servicer upon request; provided, however, that the
Servicer shall be permitted to require payment by the requesting party
(other than the Depositor, the Trustee, the Paying Agent, the Special
Servicer, the Placement Agent, any Underwriter, or any Rating Agency) of a
sum sufficient to cover the reasonable expenses actually incurred by the
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Servicer of providing access or copies (including electronic or digital
copies) of any such information requested in accordance with the preceding
sentence.
(c) Nothing herein shall be deemed to require the Servicer to
confirm, represent or warrant the accuracy of (or to be liable or
responsible for) any other Person's information or report, included in any
communication from the Special Servicer, the Mortgagor, the 99-C1 Servicer
or the 99-C1 Special Servicer. Notwithstanding the above, the Servicer
shall not have any liability to the Depositor, the Trustee, the Fiscal
Agent, the Paying Agent, the Special Servicer, the 99-C1 Servicer, the
99-C1 Special Servicer, any Certificateholder, any Certificate Owner, the
Placement Agent, any Underwriter, any Rating Agency or any other Person to
whom it delivers information pursuant to this Section 8.15 or any other
provision of this Agreement for federal, state or other applicable
securities law violations relating to the disclosure of such information.
In the event any Person brings any claims relating to or arising from the
foregoing against the Servicer (or any employee, attorney, officer,
director or agent thereof), the Trust (from amounts held in any account or
otherwise) shall hold harmless and indemnify the Servicer from any loss or
expense (including attorney fees) relating to or arising from such claims.
(d) The Servicer shall produce the reports required of it
under this Agreement; provided, however, that the Servicer shall not be
required to produce (i) any ad hoc non-standard written reports with
respect to the Mortgage Loans or (ii) the reports required hereunder
except in conformity with the requirements hereunder (i.e. not earlier
than the dates required hereunder). In the event the Servicer elects to
provide such non-standard reports, it may require the Person requesting
such report (other than a Rating Agency) to pay a reasonable fee to cover
the costs of the preparation thereof. Notwithstanding anything to the
contrary herein, as a condition to the Servicer making any report or
information available upon request to any Person other than the parties
hereto, the Servicer may require that the recipient of such information
acknowledge that the Servicer may contemporaneously provide such
information to the Depositor, the Trustee, the Fiscal Agent, the Special
Servicer, the Paying Agent, the Placement Agent, any Underwriter, any
Rating Agency and/or the Certificateholders or Certificate Owners. Any
transmittal of information by the Servicer to any Person other than the
Trustee, the Paying Agent, the Servicer, the Special Servicer, the Rating
Agencies or the Depositor may be accompanied by a letter from the Servicer
containing the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any person who possesses material, non-public
information regarding the Trust which issued Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-WF1 from purchasing or
selling such Certificates in circumstances where the other
party to the transaction is not also in possession of such
information. You also acknowledge and agree that such
information is being provided to you for the purpose of, and
such information may be used only in connection with,
evaluation by you or another Certificateholder,
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Certificate Owner or prospective purchaser of such
Certificates or beneficial interest therein."
(e) The Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may
make available by electronic media or bulletin board service (in addition
to making such information available as provided herein) any reports or
information required by this Agreement that the Servicer is required to
provide to any of the Rating Agencies, the Depositor and anyone the
Depositor reasonably designates.
(f) The Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage
Loans as is or should be in their respective possession as the Rating
Agencies may reasonably request.
SECTION 8.16 RULE 144A INFORMATION. For so long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A
under the Securities Act, the Servicer agrees to provide to the Paying
Agent for delivery to any Holder thereof, any Certificate Owner therein
and to any prospective purchaser of the Certificates or beneficial
interest therein reasonably designated by the Paying Agent, upon the
request of such Certificateholder, such Certificate Owner or the Paying
Agent, subject to this Section 8.16 and the provisions of Section 8.15,
any information prepared by the Servicer that is required to be provided
to such holder or prospective purchaser to satisfy the condition set forth
in Rule 144A(d)(4) under the Securities Act, including, without
limitation, copies of the reports and information described in Sections
8.15(a) and (b).
Any recipient of information provided pursuant to this Section
8.16 shall agree that such information shall not be disclosed or used for
any purpose other than the evaluation of the Certificates by such Person
and the Servicer shall be permitted to use the letter referred to in
Section 8.15(d). Unless the Servicer chooses to deliver the information
directly, the Depositor, the Placement Agents, the Underwriters or the
Paying Agent shall be responsible for the physical delivery of the
information requested pursuant to this Section 8.16. As a condition to the
Servicer making any report or information available upon request to any
Person other than the parties hereto, the Servicer may require that the
recipient of such information acknowledge that the Servicer may
contemporaneously provide such information to the Depositor, the Trustee,
the Paying Agent, the Placement Agent, the Underwriters, any Rating Agency
and/or the Certificateholders and Certificate Owners. The Servicer will be
permitted to require payment of a sum to be paid by the requesting party
(other than the Rating Agencies, the Trustee, the Paying Agent, Placement
Agents or Underwriters) sufficient to cover the reasonable costs and
expenses of making such information available.
SECTION 8.17 INSPECTIONS. The Servicer shall, at its own
expense, inspect or cause to be inspected each Mortgaged Property other
than Mortgaged Properties related to Specially Serviced Mortgage Loans and
the Pari Passu Loan, every 12 month period commencing with the Closing
Date, or every 24 month period commencing with the Closing Date if the
principal balance of the related Mortgage Loan is under $2 million. The
Servicer shall prepare an Inspection Report relating to each inspection.
The Servicer shall promptly forward the applicable Inspection Report to
the Paying Agent in an electronic format reasonably acceptable to
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each of the Paying Agent (who shall post such report on the Paying Agent's
Website pursuant to Section 5.4) and the Servicer. Upon request, the
Servicer shall forward any such Inspection Report to the Rating Agencies,
the Placement Agents, the Underwriters, the Depositor, the Trustee and the
Special Servicer. The Special Servicer shall have the right to inspect or
cause to be inspected (at its own expense) every calendar year any
Mortgaged Property related to a Mortgage Loan that is not a Specially
Serviced Mortgage Loan, provided that the Special Servicer notifies the
Servicer prior to such inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS
AND CONSENTS.
Subject to the limitations of Section 12.3 hereof, the
Servicer shall have the following powers:
(a) (i) The Servicer in accordance with the Servicing Standard
may agree to any modification, waiver, amendment or consent of or relating
to any term other than a Money Term (or, with the consent of the Special
Servicer and satisfaction of the provisions of Section 9.39, a Money Term)
of a Mortgage Loan that is not a Specially Serviced Mortgage Loan,
provided that such amendment would not result in an Adverse REMIC Event;
and provided, further that if any consent relates to a release of a letter
of credit relating to any Mortgage Loan, then (i) the Servicer shall
notify the Special Servicer of any Mortgagor's request to release such
letter of credit which the Servicer recommends to release, and (ii) if the
terms of the related Mortgage Loan do not require the Servicer to approve
such release, then the Special Servicer shall within five days provide
notice to the Servicer on whether the Servicer should approve the release
and the failure of the Special Servicer to give the Servicer such notice
shall automatically be deemed to be an approval by the Special Servicer
that the Servicer should grant such release. Notwithstanding the preceding
sentence, from and after the date on which neither the Servicer nor an
Affiliate of the Servicer has an interest in any of the Class G, Class H,
Class I, Class J, Class K, Class L and Class M Certificates, if any such
proposed modification, waiver, amendment or consent is deemed material by
the Servicer in its reasonable discretion and the Servicer recommends to
approve such modification, waiver, amendment or consent, the Servicer
shall provide to the Special Servicer a copy of the Servicer's
recommendation and the relevant information obtained or prepared by the
Servicer in connection therewith and (A) the Special Servicer shall have
the right hereunder to grant or withhold consent to any such proposed
modification, waiver, amendment or consent, and such consent of the
Special Servicer shall not be unreasonably withheld, consistent with the
Servicing Standard, (B) failure of the Special Servicer to notify the
Servicer, within five Business Days following the Servicer's delivery of
the recommendation described above, of its determination to grant or
withhold such consent shall be deemed to constitute a grant of such
consent and (C) the Servicer shall not enter into any such proposed
modification, waiver, amendment or consent unless it has received the
written consent of the Special Servicer or such consent has been deemed to
have been granted as described above. In any event, the Servicer shall
promptly notify the Special Servicer of any material modification, waiver,
amendment or consent executed by the Servicer pursuant to this Section
8.18(a)(i) and provide to the Special Servicer a copy thereof.
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(ii) The Servicer may, without the consent of the
Special Servicer, extend the maturity date of any Balloon Mortgage Loan
that is not a Specially Serviced Mortgage Loan to a date that is not more
than 60 days following the original Maturity Date, if in the Servicer's
sole judgment exercised in good faith (and evidenced by an Officer's
Certificate), a default in the payment of the Balloon Payment is
reasonably foreseeable and such extension is reasonably likely to produce
a greater recovery on a net present value basis than liquidation of such
Mortgage Loan. The Servicer shall process all such extensions and shall be
entitled to (as additional servicing compensation) 100% of any extension
fees collected from a Mortgagor with respect to any such extension.
(b) The Servicer may require, in its discretion, as a
condition to granting any request by a Mortgagor for any consent,
modification, waiver or amendment, that such Mortgagor pay to the Servicer
a reasonable and customary modification fee to the extent permitted by
law. The Servicer may charge the Mortgagor for any costs and expenses
(including attorney's fees) incurred by the Servicer in connection with
any request for a modification, waiver or amendment. The failure or
inability of the Mortgagor to pay any such costs and expenses shall not
impair the right of the Servicer to cause such costs and expenses, and
interest thereon at the Advance Rate, to be paid or reimbursed by the
Trust as a Servicing Advance (to the extent not paid by the Mortgagor).
(c) The Servicer shall notify the Trustee, the Paying Agent
and the Special Servicer of any modification, waiver or amendment of any
term of any Mortgage Loan permitted by it under this Section and the date
thereof, and shall deliver to the Trustee for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment, promptly following the execution
thereof except to the extent such documents have been submitted to the
applicable recording office, in which event the Servicer shall promptly
deliver copies of such documents to the Trustee. The Servicer shall not
agree to any modification, waiver, or amendment of any Money Term of a
Mortgage Loan or any term of a Specially Serviced Mortgage Loan.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Servicer shall send a written notice to the Special
Servicer, the Rating Agencies, the Paying Agent and the Trustee within two
Business Days after becoming aware of a Servicing Transfer Event with
respect to a Mortgage Loan, which notice shall identify the related
Mortgage Loan and set forth in reasonable detail the nature and relevant
facts of such Servicing Transfer Event and, except for the Rating
Agencies, the Paying Agent and the Trustee, shall be accompanied by a copy
of the Servicer Mortgage File.
(b) Prior to the transfer of the servicing of any Specially
Serviced Mortgage Loan to the Special Servicer, the Servicer shall notify
the related Mortgagor of such transfer in accordance with the Servicing
Standard (the form and substance of such notice shall be reasonably
satisfactory to the Special Servicer).
(c) Any calculations or reports prepared by the Servicer to
the extent they relate to Specially Serviced Mortgage Loans shall be based
on information supplied to
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the Servicer in writing by the Special Servicer as provided hereby. The
Servicer shall have no duty to investigate or confirm the accuracy of any
information provided to it by the Special Servicer and shall have no
liability for the inaccuracy of any of its reports due to the inaccuracy
of the information provided by the Special Servicer.
(d) On or prior to each Distribution Date, the Servicer shall
provide to the Special Servicer, in order for the Special Servicer to
comply with its obligations under this Agreement, such information (and in
the form and medium) as the Special Servicer may reasonably request in
writing from time to time, provided that (i) the Servicer shall not be
required to produce any ad hoc reports or incur any unusual expense or
effort in connection therewith and (ii) if the Servicer elects to provide
such ad hoc reports, it may require the Special Servicer to pay a
reasonable fee to cover the costs of the preparation thereof.
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SERVICER.
(a) The Servicer hereby represents and warrants to and
covenants with the Trustee, as of the date hereof:
(i) the Servicer is duly organized, validly existing and
in good standing as a national banking association under the laws of the
United States, and shall be and thereafter remain, in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement, except
where the failure to so qualify or comply would not adversely affect the
Servicer's ability to perform its obligations hereunder in accordance with
the terms of this Agreement;
(ii) the Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all
transactions and obligations contemplated by this Agreement. The Servicer
has duly and validly authorized the execution, delivery and performance of
this Agreement and this Agreement has been duly executed and delivered by
the Servicer; and this Agreement, assuming the due authorization,
execution and delivery thereof by the Depositor, the Trustee, the Fiscal
Agent, the Paying Agent and the Special Servicer, evidences the valid and
binding obligation of the Servicer enforceable against the Servicer in
accordance with its terms subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium,
receivership and other similar laws affecting creditors' rights generally
as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment
of or compliance with the terms and conditions of this Agreement will not
(1) result in a breach of any term or provision of its charter or by-laws
or (2) conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement or
instrument to which it is a party or by which it may be bound, or any law,
governmental rule, regulation, or judgment, decree or order applicable to
it of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it, which materially and adversely affects
its ability to perform its obligations under this Agreement;
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(iv) no litigation is pending or, to the Servicer's
knowledge, threatened, against it, that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or its
ability to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by it of, or compliance by it with, this
Agreement, or the consummation of the transactions contemplated hereby, or
if any such consent, approval, authorization or order is required, it has
obtained the same or will obtain the same prior to the time necessary to
perform its obligations under this Agreement, and, except to the extent in
the case of performance, that its failure to be qualified as a foreign
corporation or licensed in one or more states is not necessary for the
performance by it of its obligations hereunder; and
(vi) the performance of the services by the Servicer
contemplated by this Agreement are in the ordinary course of business of
the Servicer.
(b) It is understood that the representations and warranties
set forth in this Section 8.20 shall survive the execution and delivery of
this Agreement.
(c) Any cause of action against the Servicer arising out of
the breach of any representations and warranties made in this Section
shall accrue upon discovery of such breach by any of the Trustee or the
Servicer. The Servicer shall give prompt notice to the Trustee, the
Depositor and the Special Servicer of the occurrence, or the failure to
occur, of any event that, with notice or the passage of time or both,
would cause any representation or warranty in this Section to be untrue or
inaccurate in any respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which
the Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Servicer shall be a party, or any Person succeeding to the business of the
Servicer, shall be the successor of the Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of
the parties hereto; provided, however, that each of the Rating Agencies
provides a Rating Agency Confirmation. If the conditions to the provisions
in the foregoing sentence are not met, the Trustee may terminate the
Servicer's servicing of the Mortgage Loans pursuant hereto, such
termination to be effected in the manner set forth in Sections 8.28 and
8.29.
SECTION 8.22 RESIGNATION OF SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof,
the Servicer shall not resign from the obligations and duties hereby
imposed on it unless it determines that the Servicer's duties hereunder
are no longer permissible under applicable law or are in material conflict
by reason of applicable law with any other activities carried on by it.
Any such determination permitting the resignation of the Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the
Trustee. No such resignation shall become effective until a successor
servicer designated by the Trustee, with the consent of the Depositor,
shall have
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assumed the Servicer's responsibilities and obligations under this
Agreement and Rating Agency Confirmation shall have been obtained. Notice
of such resignation shall be given promptly by the Servicer to the
Trustee.
(b) The Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee, provided that (i) a
successor servicer (x) is available, (y) has assets of at least
$15,000,000 and (z) is willing to assume the obligations,
responsibilities, and covenants to be performed hereunder by the Servicer
on substantially the same terms and conditions, and for not more than
equivalent compensation to that herein provided; (ii) the Servicer bears
all costs associated with its resignation and the transfer of servicing;
and (iii) Rating Agency Confirmation is obtained with respect to such
servicing transfer, as evidenced by a letter delivered to the Trustee by
each Rating Agency.
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY Servicer.
The Servicer shall have the right without the prior written consent of the
Trustee to (A) delegate or subcontract with or authorize or appoint
anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of the Servicer or Sub-Servicers (as
provided in Section 8.4) to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Servicer hereunder or
(B) assign and delegate all of its duties hereunder; provided, however,
that with respect to clause (B), (i) the Servicer gives the Depositor, the
Special Servicer and the Trustee notice of such assignment and delegation;
(ii) such purchaser or transferee accepting such assignment and delegation
executes and delivers to the Depositor and the Trustee an agreement
accepting such assignment, which contains an assumption by such Person of
the rights, powers, duties, responsibilities, obligations and liabilities
of the Servicer, with like effect as if originally named as a party to
this Agreement; (iii) the purchaser or transferee has assets in excess of
$15,000,000; (iv) such assignment and delegation is the subject of a
Rating Agency Confirmation; and (v) the Depositor consents to such
assignment and delegation, such consent not be unreasonably withheld. In
the case of any such assignment and delegation in accordance with the
requirements of subclause (B) of this Section, the Servicer shall be
released from its obligations under this Agreement, except that the
Servicer shall remain liable for all liabilities and obligations incurred
by it as the Servicer hereunder prior to the satisfaction of the
conditions to such assignment set forth in the preceding sentence. In the
case of any such assignment and delegation in accordance with the
requirements of Subsection A of this Section, the Servicer shall not be
released from its obligations under this Agreement. Notwithstanding the
above, the Servicer may appoint Sub-Servicers in accordance with Section
8.4 hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE SERVICER AND
OTHERS.
(a) Neither the Servicer nor any of the directors, officers,
employees or agents of the Servicer shall be under any liability to the
holders of the Certificates, the Depositor, the Trustee, the Fiscal Agent,
the Paying Agent, the Placement Agents, the Underwriters or the Special
Servicer for any action taken or for refraining from the taking of any
action in good faith, or using reasonable business judgment, consistent
with the Servicing Standard; provided that this provision shall not
protect the Servicer or any such person against any breach of a
representation or warranty contained herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties under the Agreement or
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by reason of negligent disregard of obligations and duties hereunder. The
Servicer and any director, officer, employee or agent of the Servicer may
rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person (including, without limitation, the
Special Servicer) respecting any matters arising hereunder. The Servicer
shall not be under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its duties to service the Mortgage
Loans in accordance with this Agreement; provided that the Servicer may in
its sole discretion undertake any such action which it may reasonably deem
necessary or desirable in order to protect the interests of the
Certificateholders and the Trustee in the Mortgage Loans (subject to the
Special Servicer's servicing of Specially Serviced Mortgage Loans as
contemplated herein), or shall undertake any such action if instructed to
do so by the Trustee. In such event, all legal expenses and costs of such
action (other than those that are connected with the routine performance
by the Servicer of its duties hereunder) shall be expenses and costs of
the Trust, and the Servicer shall be entitled to be reimbursed therefor as
Servicing Advances as provided by Section 5.2, subject to the provisions
of Section 4.4 hereof.
(b) In addition, the Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to, the truth
of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Servicer and conforming to the
requirements of this Agreement. Subject to the Servicing Standard, the
Servicer shall have the right to rely on information provided to it by the
Special Servicer and Mortgagors, and will have no duty to investigate or
verify the accuracy thereof. Neither the Servicer, nor any director,
officer, employee, agent or Affiliate, shall be personally liable for any
error of judgement made in good faith by any officer, unless it shall be
proved that the Servicer or such officer was negligent in ascertaining the
pertinent facts. Neither the Servicer nor any director, officer, employee,
agent or Affiliate, shall be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by
this Agreement.
(c) The Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or
arise from any breach of any representation, warranty or covenant made by
the Depositor, the Special Servicer, Trustee or the Fiscal Agent in this
Agreement. The Trust shall indemnify and hold harmless the Servicer from
any and all claims, liabilities, costs, charges, fees or other expenses
which relate to or arise from any such breach of representation, warranty
or covenant to the extent the Servicer is unable to recover such amounts
from the Person in breach.
(d) Except as otherwise specifically provided herein:
(i) the Servicer may rely, and shall be protected in acting or
refraining from acting, upon any resolution, officer's certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, financial statement, agreement, appraisal, bond
or other document (electronic or paper) reasonably believed or in good faith
believed by it to be genuine and to have been signed or presented by the proper
party or parties; and
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(ii) the Servicer may consult with counsel, and any written
advice or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel.
(e) The Servicer and any director, officer, employee or agent
of the Servicer shall be indemnified by the Trustee, the Fiscal Agent, the
Paying Agent and the Special Servicer, as the case may be, and held
harmless against any loss, liability or expense including reasonable
attorneys' fees incurred in connection with any legal action relating to
the Trustee's, Fiscal Agent's, the Paying Agent or the Special Servicer's,
as the case may be, respective willful misfeasance, bad faith or
negligence in the performance of its respective duties hereunder or by
reason of negligent disregard of its respective duties hereunder, other
than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of any of the
Servicer's duties hereunder or by reason of negligent disregard of the
Servicer's obligations and duties hereunder. The Servicer shall
immediately notify the Trustee and Paying Agent if a claim is made by a
third party with respect to this Agreement or the Mortgage Loans entitling
the Servicer to indemnification hereunder, whereupon the Trustee or the
Paying Agent, as applicable, may assume the defense of any such claim
(with counsel reasonably satisfactory to the Servicer) and pay all
expenses in connection therewith, including counsel fees, and promptly
pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Trustee or Paying Agent shall not affect any rights the Servicer or the
Trust may have to indemnification under this Agreement or otherwise,
unless the Trustee's or the Paying Agent's defense of such claim is
materially prejudiced thereby. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the
Servicer hereunder. Any payment hereunder made by the Trustee, the Fiscal
Agent or the Paying Agent pursuant to this paragraph to the Servicer shall
be paid from the Trustee's, Fiscal Agent's or Paying Agent's own funds,
without reimbursement from the Trust therefor except achieved through
subrogation as provided in this Agreement. Any expenses incurred or
indemnification payments made by the Trustee, the Fiscal Agent or Paying
Agent shall be reimbursed by the party so paid, if a court of competent
jurisdiction makes a final judgment that the conduct of the Trustee, the
Fiscal Agent or Paying Agent, as the case may be was not culpable or found
to have acted with willful misfeasance, bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Servicer and any director, officer, employee or agent
of the Servicer shall be indemnified by the Trust and held harmless
against any and all claims, losses, penalties, fines, forfeitures, legal
fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action relating to this
Agreement, any Mortgage Loans, any REO Property or the Certificates or any
exercise of any right under this Agreement reasonably requiring the use of
counsel or the incurring of expenses other than any loss, liability or
expense incurred by reason of the Servicer's willful misfeasance, bad
faith or negligence in the performance of duties hereunder. The Servicer
shall promptly notify the Trustee and the Paying Agent if a claim is made
by a third party with respect to this Agreement or the Mortgage Loans
entitling the Servicer to indemnification hereunder, whereupon the
Trustee, on behalf of the Trust, shall assume the defense of any such
claim (with counsel reasonably satisfactory to the
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Servicer) and out of the Trust pay all expenses in connection therewith,
including counsel fees, and out of the Trust promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee and the Paying
Agent shall not affect any rights the Servicer may have to indemnification
under this Agreement or otherwise, unless the Trust is prejudiced thereby.
The indemnification provided herein shall survive the termination of this
Agreement. The Trustee, the Paying Agent or the Servicer shall promptly
make from the Certificate Account any payments certified by the Servicer
to the Trustee and the Paying Agent as required to be made to the Servicer
pursuant to this Section 8.25.
(b) The Servicer agrees to indemnify the Trustee, the Fiscal
Agent, the Special Servicer, the Paying Agent, the Trust, the Depositor,
and any director, officer, employee, agent or Controlling Person thereof,
and hold them harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that the Trustee, the Fiscal Agent,
the Special Servicer, the Paying Agent, the Depositor, and the Trust may
sustain arising from or as a result of the willful misfeasance, bad faith
or negligence in the performance of any of the Servicer's duties hereunder
or by reason of negligent disregard of the Servicer's obligations and
duties hereunder (including a breach of such obligations a substantial
motive of which is to obtain an economic advantage from being released
from such obligations), and if in any such situation the Servicer is
replaced, the parties hereto agree that the amount of such claims, losses,
penalties, fines, legal fees and related costs, judgments, and other
costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor servicer. The Trustee, the Fiscal
Agent, the Special Servicer, the Paying Agent, or the Depositor, as
applicable, shall immediately notify the Servicer if a claim is made by
any Person with respect to this Agreement or the Mortgage Loans entitling
the Trustee, the Fiscal Agent, the Depositor, the Special Servicer, the
Paying Agent, or the Trust to indemnification under this Section 8.25(b),
whereupon the Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Trustee, the Fiscal Agent, the
Special Servicer, the Paying Agent, or the Depositor, as applicable) and
pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so
notify the Servicer shall not affect any rights the Trustee, the Fiscal
Agent, the Special Servicer, the Paying Agent, the Depositor, or the Trust
may have to indemnification under this Agreement or otherwise, unless the
Servicer's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this
Agreement and the resignation or termination of the Servicer, the Fiscal
Agent, the Special Servicer, the Paying Agent, and the Trustee. Any
expenses incurred or indemnification payments made by the Servicer shall
be reimbursed by the party so paid, if a court of competent jurisdiction
makes a final, non-appealable judgment that the conduct of the Servicer
was not culpable or that the Servicer did not act with willful
misfeasance, bad faith or negligence.
(c) The Servicer shall indemnify and hold harmless the Trust,
the Trustee, the Fiscal Agent and the Paying Agent, and each of their
respective directors, each of its officers, employees, agents and any
Controlling Person of the Fiscal Agent, the Trustee or the Paying Agent
from and against any loss, claim, damage or liability, joint or several,
or any action in respect thereof, to which the Trust, the Trustee, Fiscal
Agent or the Paying Agent, or any such
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director, officer, employees, agents or such Controlling Person may become
subject, under the 1933 Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement of a material fact contained in the Preliminary Prospectus
Supplement or Final Prospectus Supplement or in the Private Placement
Memorandum, or arises out of, or is based upon the omission to state
therein a material fact necessary to make the statements therein not
misleading, and shall reimburse the Trust, Trustee, Fiscal Agent or Paying
Agent or any such director, officer, employee, agent or Controlling Person
for any legal and other expenses reasonably incurred by the Trust, the
Trustee, the Fiscal Agent, or Paying Agent or any such director, officer,
employee, agent or Controlling Person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action, but in each case only to the extent that the untrue statement or
omission was made in reliance upon and in conformity with written
information concerning the Servicer furnished to the Depositor by or on
behalf of the Servicer specifically for inclusion therein. The Trustee,
the Fiscal Agent or the Paying Agent, as applicable, shall immediately
notify the Servicer if a claim is made by a third party with respect to
this Section 8.25(c) entitling the Trust or the Trustee, the Fiscal Agent
or the Paying Agent, as the case may be, or any of its directors,
officers, employees, agents or Controlling Persons, as the case may be, to
indemnification hereunder, whereupon the Servicer shall assume the defense
of any such claim (with counsel reasonably satisfactory to the Fiscal
Agent, the Trustee or Paying Agent, as the case may be) and pay all
expenses in connection therewith, including counsel fees, and promptly
pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Servicer shall not affect any rights the Trust, the Fiscal Agent, the
Paying Agent and the Trustee may have to indemnification under this
Section 8.25(c), unless the Servicer's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or termination of the
Servicer, the Fiscal Agent, the Paying Agent and the Trustee.
(d) The parties expressly agree that the only written
information concerning the Servicer furnished by or on behalf of the
Servicer for inclusion in the Preliminary Prospectus Supplement and Final
Prospectus Supplement is the information set forth under the paragraphs
under the caption "SERVICING OF THE MORTGAGE LOANS--The Servicer" of the
Preliminary Prospectus Supplement and Final Prospectus Supplement.
(e) The 99-C1 Servicer and any director, officer, employee or
agent of the 99-C1 Servicer shall be indemnified by the Trust and held
harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses (collectively, "Losses") incurred in
connection with any legal action relating to the 99-C1 Pooling and
Servicing Agreement and this Agreement, and relating to the Pari Passu
Loan (but excluding any such Losses allocable to the Related Trust Fund
Mortgage Loan), reasonably requiring the use of counsel or the incurring
of expenses other than any Losses incurred by reason of the 99-C1
Servicer's willful misfeasance, bad faith or negligence in the performance
of its duties under the 99-C1 Pooling and Servicing Agreement.
SECTION 8.26 EXCHANGE ACT REPORTING. The Servicer, the Special
Servicer, the Paying Agent and the Trustee and the Fiscal Agent shall
reasonably cooperate with the Depositor in connection with the Depositor's
satisfying the reporting requirements in respect of the Trust
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under the Exchange Act. The Paying Agent shall prepare, execute and file
on behalf of the Depositor with respect to the Trust any Forms 8-K and
10-K customary for similar securities as required by the Exchange Act and
the Rules and Regulations of the Securities and Exchange Commission
thereunder; provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. The Paying Agent shall
file any such items that have not been received in such XXXXX-compatible
format and shall convert any items to such format. Such XXXXX filings
shall be at the expense of the Depositor. The Paying Agent shall continue
to make such filings until such time as the Depositor notifies the Paying
Agent that it has obtained from the Securities Exchange Commission a
no-action letter or other exemptive relief relating to reducing reporting
requirements in respect of the Trust under the Exchange Act and in
accordance with and to the extent permitted by applicable law has filed a
Form 15 relating to the automatic termination of reporting in respect of
the Trust under the Exchange Act. Beginning on or before January 31, 2001,
the Depositor shall pay the Paying Agent before January 31 of each year a
fee of $5,000 as compensation for preparing and filing such reports.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. The Servicer
shall act in accordance with this Agreement and the REMIC Provisions and
related provisions of the Code in order to create or maintain the status
of the three REMICs as REMICs under the Code. The Servicer shall use its
best efforts to take no action or cause any REMIC to take any action that
could (i) endanger the status of any REMIC as a REMIC under the Code or
(ii) result in the imposition of a tax upon any REMIC (including, but not
limited to, the tax on prohibited transactions as defined in Code Section
860F(a)(2) or on prohibited contributions pursuant to Section 860G(d)).
SECTION 8.28 TERMINATION.
(a) The obligations and responsibilities of the Servicer
created hereby (other than the obligation of the Servicer to make payments
to the Paying Agent as set forth in Section 8.29 and the obligations of
the Servicer to the Trustee, Fiscal Agent, the Paying Agent, the Special
Servicer and the Trust) shall terminate on the date which is (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining outstanding or (B) the disposition of all REO Property, (ii) if
an Event of Default described in clauses 8.28(b)(ii), (iii) or (iv) has
occurred, 60 days following the date on which the Trustee or Depositor
gives written notice to the Servicer that the Servicer is terminated or
(iii) if an Event of Default described in clauses 8.28(b)(i), (v), (vi) or
(vii) has occurred, immediately upon the date on which the Trustee or the
Depositor gives written notice to the Servicer that the Servicer is
terminated. After any Event of Default, the Trustee (i) may elect to
terminate the Servicer by providing such notice, and (ii) shall provide
such notice if holders of Certificates representing more than 25% of the
Certificate Balance of all Certificates so direct the Trustee.
(b) "Event of Default," wherever used herein, means any one of
the following events:
(i) any failure by the Servicer to remit to the Paying
Agent any payment required to be remitted by the Servicer under the terms
of this Agreement, including any required Advances; or
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(ii) any failure on the part of the Servicer duly to
observe or perform in any material respect any other of the duties,
covenants or agreements on the part of the Servicer contained in this
Agreement which continues unremedied for a period of 30 days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Depositor or the
Trustee; provided, however, that if the Servicer certifies to the Trustee
and the Depositor that the Servicer is in good faith attempting to remedy
such failure, such cure period will be extended to the extent necessary to
permit the Servicer to cure such failure; provided, further that such cure
period may not exceed 90 days; or
(iii) any breach of the representations and warranties
contained in Section 8.20 hereof that materially and adversely affects the
interest of any holder of any Class of Certificateholders and that
continues unremedied for a period of 30 days after the date on which
notice of such breach, requiring the same to be remedied, shall have been
given to the Servicer by the Depositor or the Trustee, provided, however,
that if the Servicer certifies to the Trustee and the Depositor that the
Servicer is in good faith attempting to remedy such breach, such cure
period will be extended to the extent necessary to permit the Servicer to
cure such breach; provided, further that such cure period may not exceed
90 days; or
(iv) the Trustee shall have received written notice from
either Rating Agency that the continuation of the Servicer in such
capacity would result in the downgrade, qualification (including the
placement of any rated Certificate on "credit watch" or the equivalent) or
withdrawal of any rating then assigned by that Rating Agency to any Class
of Certificates; or
(v) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state bankruptcy,
insolvency or similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(vi) the Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings relating to the Servicer or relating to
all or substantially all of its property; or
(vii) the Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable 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.
SECTION 8.29 PROCEDURE UPON TERMINATION.
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(a) Notice of any termination pursuant to clause (i) of
Section 8.28(a), specifying the Servicer Remittance Date upon which the
final transfer by the Servicer to the Paying Agent shall be made, shall be
given promptly in writing by the Servicer to the Trustee and the Paying
Agent no later than the later of (i) five Business Days after the final
payment or other liquidation of the last Mortgage Loan or (ii) the sixth
day of the month of such final distribution. Upon any such termination,
the duties of the Servicer (other than the obligation of the Servicer to
pay to the Paying Agent the amounts remaining in the Certificate Account
as set forth below and the obligations of the Servicer to the Trustee and
the Trust and the Fiscal Agent as provided herein) shall terminate and the
Servicer shall transfer to the Paying Agent the amounts remaining in the
Certificate Account after making the withdrawals permitted to be made
pursuant to Section 5.2 and shall thereafter terminate the Certificate
Account and any other account or fund maintained with respect to the
Mortgage Loans.
(b) On the date specified in a written notice of termination
given to the Servicer pursuant to clause (ii) of Section 8.28(a), or on
the date on which a written notice of termination is given to the Servicer
pursuant to clause (iii) of Section 8.28(a) all authority, power and
rights of the Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall terminate; provided that in no event
shall the termination of the Servicer be effective until a successor
servicer shall have succeeded the Servicer as successor servicer, notified
the Servicer of such designation, a Rating Agency Confirmation shall have
been obtained from each Rating Agency with respect to such designation,
and such successor servicer shall have assumed the Servicer's obligations
and responsibilities, as set forth in an agreement substantially in the
form hereof, with respect to the Mortgage Loans. Except as provided in the
next sentence, the Trustee may not succeed the Servicer as servicer until
and unless it has satisfied the provisions that would apply to a Person
succeeding to the business of the Servicer pursuant to Section 8.22(b)
hereof. Notwithstanding the foregoing sentence, in the event that the
Servicer is terminated as a result of an event described in Section
8.28(b)(v), 8.28(b)(vi) or 8.28(b)(vii), the Trustee shall act as
successor servicer immediately upon delivery of a notice of termination to
the Servicer and shall use its best efforts within 90 days of assuming the
duties of the Servicer, either to satisfy the conditions of Section
8.22(b) hereof or to transfer the duties of the Servicer to a successor
servicer who has satisfied such conditions. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents or otherwise. The
Servicer agrees to cooperate with the Trustee, the Paying Agent and the
Fiscal Agent in effecting the termination of the Servicer's
responsibilities and rights hereunder as Servicer including, without
limitation, notifying Mortgagors of the assignment of the servicing
function and providing the Trustee all documents and records in electronic
or other form reasonably requested by it to enable the successor servicer
designated by the Trustee to assume the Servicer's functions hereunder and
to effect the transfer to such successor for administration by it of all
amounts which shall at the time be or should have been deposited by the
Servicer in the Certificate Account and any other account or fund
maintained or thereafter received with respect to the Mortgage Loans.
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(c) If the Servicer receives a written notice of termination
pursuant to clause (ii) of Section 8.28(a) and such written notice of
termination relates solely to an Event of Default specified in Section
8.28(b)(iv), and if the Servicer provides the Trustee with the appropriate
"request for proposal" materials within five Business Days after receipt
of such written notice of termination, then the Trustee shall promptly
thereafter (using such "request for proposal" materials provided by the
Servicer) solicit good faith bids for the rights to service the Mortgage
Loans under this Agreement from at least three Qualified Bidders or, if
three Qualified Bidders cannot be located, then from as many persons as
the Trustee can determine are Qualified Bidders. At the Trustee's request,
the Servicer shall supply the Trustee with the names of Persons from whom
to solicit such bids. In no event shall the Trustee be responsible if less
than three Qualified Bidders submit bids for the right to service the
Mortgage Loans under this Agreement.
Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Servicer,
and to agree to be bound by the terms hereof, not later than 30 days after
termination of the Servicer hereunder. The Trustee shall solicit bids (i)
on the basis of such successor Servicer retaining all Sub-Servicers to
continue the primary servicing of the Mortgage Loans pursuant to the terms
of the respective sub-servicing agreements and to enter into a
sub-servicing agreement with the terminated Servicer to service each of
the Mortgage Loans not already subject to a sub-servicing agreement at a
servicing fee rate per annum equal to the Servicing Fee Rate minus three
basis points per Mortgage Loan serviced (each a "Servicing Retained Bid")
and (ii) on the basis of terminating each sub-servicing agreement and
sub-servicer (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) to act as successor
Servicer hereunder or such other Qualified Bidder as the terminated
Servicer may direct (the "Successful Bidder"). The Trustee shall direct
the Successful Bidder to enter into this 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 the terminated
Servicer as contemplated above), not later than 30 days after the
termination of the Servicer hereunder, and in connection therewith to
deliver the amount of the Successful Bidder's cash bid to the Trustee by
wire transfer of immediately available funds to an account specified by
the Trustee no later than 10:00 a.m. New York City time on the date
specified for the assignment and assumption of the servicing rights
hereunder.
Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid,
the Trustee shall remit or cause to be remitted to the terminated Servicer
the amount of such cash bid received from the Successful Bidder (net of
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to
an account specified by the terminated Servicer no later than 1:00 p.m.
New York City time on the date specified for the assignment and assumption
of the servicing rights hereunder.
If the Successful Bidder has not entered into this Agreement
as successor Servicer within 30 days after the termination of the Servicer
hereunder or no Successful Bidder was identified within such 30 day
period, the Trustee shall have no further obligations under this Section
8.29(c) and may act or may select another successor to act as Servicer
hereunder in accordance with Section 8.29(b).
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ARTICLE IX
ADMINISTRATION AND SERVICING OF
SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) For and on behalf of the Certificateholders and the
Trustee, the Special Servicer shall service the Specially Serviced
Mortgage Loans and manage the related REO Properties in accordance with
the provisions of this Agreement and the Servicing Standard (subject to
the servicing of the Pari Passu Loan by the 99-C1 Servicer and the 99-C1
Special Servicer).
(b) The Special Servicer shall cooperate with the Servicer and
provide the Servicer with the information reasonably requested by the
Servicer, in writing, to the extent required to allow the Servicer to
perform its servicing obligations with respect to the Specially Serviced
Mortgage Loans hereunder; provided, however, that (i) the Special Servicer
shall not be required to produce any ad hoc reports or incur any unusual
expense or effort in connection therewith and (ii) if the Special Servicer
elects to provide such ad hoc reports, the Special Servicer may require
the Servicer to pay a reasonable fee to cover the costs of the preparation
thereof. The Special Servicer's obligations with respect to the servicing
of any Specially Serviced Mortgage Loan and any related REO Properties
shall terminate when such Specially Serviced Mortgage Loan has become a
Rehabilitated Mortgage Loan, unless and until another Servicing Transfer
Event with respect to such Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the
Servicer and the Paying Agent within two Business Days after becoming
aware that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which
notice shall identify the applicable Mortgage Loan. Upon the receipt of
such notice by the Servicer and the Paying Agent, such Mortgage Loan shall
become a Rehabilitated Mortgage Loan and will be serviced by the Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with
respect to a Mortgage Loan and upon the reasonable request of the Special
Servicer, the Servicer shall xxxx its records for such Mortgage Loan to
cause any monthly statements for amounts due on such Mortgage Loan to be
sent thereafter to the Special Servicer rather than the related Mortgagor.
Upon receipt of any such monthly statement, the Special Servicer shall,
within two Business Days, advise the Servicer of any changes to be made,
and return the monthly statement to the Servicer. The Servicer shall
thereafter promptly send the corrected monthly statement to the Mortgagor.
If a Mortgage Loan becomes a Rehabilitated Mortgage Loan, the Servicer
shall send the monthly statement to the Mortgagor as it did before such
Mortgage Loan became a Specially Serviced Mortgage Loan.
(e) All amounts collected by the Servicer with respect to a
Specially Serviced Mortgage Loan (other than a Mortgage Loan that has
become an REO Property) shall be deposited in the Certificate Account. The
Servicer shall within three Business Days after receipt of any such
payment, notify the Special Servicer of the receipt of such payment and
the amount
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thereof. The Special Servicer shall, within one Business Day thereafter,
instruct the Servicer in writing how to apply such payment (with the
application of such payments to be made in accordance with the related
Mortgage Loan documents or in accordance with this Agreement, as
applicable).
(f) The Special Servicer represents any custom-made software
or hardware designed or purchased or licensed by the Special Servicer and
used by the Special Servicer in the course of operation or management of,
or the compiling, reporting or generation of date required by this
Agreement does not contain any deficiency (x) in the ability of such
software or hardware to identify correctly or perform calculations or
other processing with respect to dates after December 31, 1999 or (y) that
would cause such software to be fit no longer for the purpose for which it
was intended by reason of the changing of the date from 1999 to 2000.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY OF SPECIAL SERVICER. The Special Servicer, at its expense, shall
maintain in effect a Servicer Fidelity Bond and a Servicer Errors and
Omissions Insurance Policy. The Servicer Errors and Omissions Insurance
Policy and Servicer Fidelity Bond shall be issued by a Qualified Insurer
(unless the Special Servicer self insures as provided below) and be in
form and amount consistent with the Servicing Standard. In the event that
any such Servicer Errors and Omissions Insurance Policy or Servicer
Fidelity Bond ceases to be in effect, the Special Servicer shall obtain a
comparable replacement policy or bond from an insurer or issuer meeting
the requirements set forth above as of the date of such replacement. So
long as the long-term rating of the Special Servicer is not less than two
rating categories (ignoring pluses or minuses) lower than the highest
rating of the Certificates, but in any event not less than "BBB" as rated
by Fitch IBCA (if rated by Fitch IBCA, and if not rated by Fitch IBCA,
then otherwise acceptable to Fitch IBCA) and "BBB" as rated by DCR, the
Special Servicer may self-insure for the Servicer Fidelity Bond and the
Servicer Error and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the
right to use a Sub-Servicer on the same terms and conditions as those set
forth in Section 8.4 for a Sub-Servicer of the Servicer. The Special
Servicer shall notify the Servicer and Trustee of the appointment of any
Sub-Servicer of the Special Servicer.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this
Agreement, the Special Servicer is hereby authorized and empowered when
the Special Servicer believes it appropriate in accordance with the
Servicing Standard, to take any and all the actions with respect to
Specially Serviced Mortgage Loans which the Servicer may perform as set
forth in Section 8.3(a), including (i) to execute and deliver, on behalf
of itself or the Trust, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Specially Serviced Mortgage
Loans and with respect to the related REO Properties and (ii) to
effectuate foreclosure or other conversion of the ownership of any REO
Property securing a Mortgage Loan. The Trustee shall execute on the
Closing Date a Power of Attorney in the form of Exhibit S-2 hereto and
shall furnish the Special Servicer from time to time, upon request, with
any additional powers of attorney of the Trust,
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empowering the Special Servicer to take such actions as it determines to
be reasonably necessary to comply with its servicing, administrative and
management duties hereunder, and the Trustee shall execute and deliver or
cause to be executed and delivered such other documents as a Special
Servicing Officer may request, that are necessary or appropriate to enable
the Special Servicer to service, administer and manage the Specially
Serviced Mortgage Loans and carry out its duties hereunder, in each case
as the Special Servicer determines is in accordance with the Servicing
Standard and the terms of this Agreement; provided, that, prior to
initiating any proceedings in any court of law or equity (but not
defending any proceedings in any court of law or equity) or instituting
any proceeding to foreclose on any Mortgaged Property in the name of the
Trust in any state, the Special Servicer shall notify the Trustee in
writing and not institute or initiate any such proceedings for a period of
five Business Days from the date of its delivery of such notice to the
Trustee, unless the Special Servicer reasonably believes that such action
should be taken in less than five Business days to preserve the property
of the Trust for the benefit of Certificateholders, and the Trustee may
within five Business Days of its receipt of such notice advise the Special
Servicer that it has received an Opinion of Counsel (the cost of which
shall be an expense of the Trust) from an attorney duly licensed to
practice law in the state where the related Mortgaged Property or REO
Property is located, that it is likely that the laws of the state in which
said action is to be taken either prohibit such action if taken in the
name of the Trust or that the Trust would be adversely affected under the
"doing business" or tax laws of such state if such action is taken in its
name; provided, further, that the Special Servicer shall not be liable to
the extent that it relies on the advice provided in such Opinion of
Counsel. Upon receipt of any such advice from the Trustee, the Special
Servicer shall take such action in the name of such Person or Persons, in
trust for the Trust, as shall be consistent with the Opinion of Counsel
obtained by the Trustee. Such Person or Persons shall acknowledge in
writing that such action is being taken by the Special Servicer in the
name of the Trust. In the performance of its duties hereunder, the Special
Servicer shall be an independent contractor and shall not, except in those
instances where it is, after notice to the Trustee as provided above,
taking action in the name of the Trust, be deemed to be the agent of the
Trust. The Special Servicer shall indemnify the Trustee for any loss,
liability or reasonable expense (including attorneys' fees) incurred by
the Trustee or any director, officer, employee, agent or Controlling
Person of it or its affiliates in connection with any negligent or
intentional misuse of the foregoing powers of attorney furnished to the
Special Servicer by the Trustee. Such indemnification shall survive the
resignation or termination of the Special Servicer hereunder, the
resignation or termination of the Trustee and the termination of this
Agreement. The Special Servicer shall not have any responsibility or
liability for any act or omission of the Trustee, the Servicer or the
Depositor that is not attributable to the failure of the Special Servicer
to perform its obligations hereunder. The Special Servicer may
conclusively rely on any advice of counsel rendered in a
Nondisqualification Opinion.
(b) In servicing and administering the Specially Serviced
Mortgage Loans and managing any related REO Properties, the Special
Servicer shall employ procedures consistent with the Servicing Standard.
The Special Servicer shall conduct, or cause to be conducted, inspections,
at its own expense, of the Mortgaged Properties relating to Specially
Serviced Mortgage Loans at such times and in such manner as shall be
consistent with the Servicing Standard; provided, that the Special
Servicer shall conduct, or cause to be conducted, inspections
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of the Mortgaged Properties relating to Specially Serviced Mortgage Loans
as soon as practicable after it becomes a Specially Serviced Mortgage Loan
and at least once during each twelve-month period that ends on June 30 of
any calendar year thereafter (commencing with the twelve-month period
ending June 30, 2001). The Special Servicer shall provide to the Servicer
and the Operating Adviser copies of the Inspection Reports relating to
such inspections as soon as practicable after the completion of any
inspection.
(c) Pursuant to the Pari Passu Intercreditor Agreement, the
owner of the Pari Passu Loan has agreed that such owner's rights in, to
and under the Pari Passu Loan are subject to the servicing and all other
rights of the 99-C1 Servicer and the 99-C1 Special Servicer and the 99-C1
Servicer and the 99-C1 Special Servicer are authorized and obligated to
service and administer the Pari Passu Loan pursuant to the 99-C1 Pooling
and Servicing Agreement. Notwithstanding anything herein to the contrary,
the parties hereto acknowledge and agree that the Special Servicer's
obligations and responsibilities hereunder and the Special Servicer's
authority with respect to the Pari Passu Loan are limited by and subject
to the terms of the Pari Passu Intercreditor Agreement and the rights of
the 99-C1 Servicer and the 99-C1 Special Servicer with respect thereto
under the 99-C1 Pooling and Servicing Agreement.
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS.
Subject to the limitations of Section 12.3, the Special
Servicer shall have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a
provision in the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan
shall (or may at the Mortgagee's option) become due and payable upon the
sale or other transfer of an interest in the related Mortgaged Property,
or
(ii) provides that such Specially Serviced Mortgage Loan
may not be assumed without the consent of the related mortgagee in
connection with any such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after
consultation with the Operating Adviser and in accordance with the REMIC
Provisions, take such actions as it deems to be in the best economic
interest of the Trust in accordance with the Servicing Standard, and may
waive or enforce any due-on-sale clause contained in the related Mortgage
Note or Mortgage; provided, however, that if the Principal Balance of such
Mortgage Loan at such time equals or exceeds the Review Threshold, then
prior to waiving the effect of such provision, the Special Servicer shall
obtain Rating Agency Confirmation regarding such waiver. In connection
with the request for such consent, the Special Servicer shall prepare and
deliver to DCR a memorandum outlining its analysis and recommendation in
accordance with the Servicing Standard, together with copies of all
relevant documentation. The Special Servicer shall also prepare and
provide DCR with such memorandum and documentation for all transfer,
assumption and encumbrance consents granted
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for Mortgage Loans below the Review Threshold, but for which the Special
Servicer's decision will be sufficient and a Rating Agency Confirmation is
not required. The Rating Agencies shall respond to such request in a
reasonable period of time. As to any Mortgage Loan that is not a Specially
Serviced Mortgage Loan and contains a provision in the nature of a
"due-on-sale" clause, the Special Servicer shall have the rights and
duties set forth in Section 8.7(b). The Special Servicer shall be entitled
to 100% of all assumption fees in connection with Specially Serviced
Mortgage Loans.
After notice to the Operating Adviser, the Special Servicer is
also authorized to take or enter into an assignment and assumption
agreement from or with the Person to whom such property has been or is
about to be conveyed, and/or to release the original Mortgagor from
liability upon the Specially Serviced Mortgage Loan and substitute the new
Mortgagor as obligor thereon; provided, that except as otherwise permitted
by Section 9.5(c), any such assignment and assumption or substitution
agreement shall contain no terms that could result in an Adverse REMIC
Event. To the extent permitted by law, the Special Servicer shall enter
into an assumption or substitution agreement only if the credit status of
the prospective new mortgagor and the underwriting of the new mortgagor is
in compliance with the Special Servicer's regular commercial mortgage
origination or servicing standards and criteria. The Special Servicer
shall notify the Servicer of any such assignment and assumption or
substitution agreement and the Special Servicer shall forward to the
Trustee the original of such agreement, which original shall be added by
the Trustee to the related Mortgage File and shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof.
(b) In connection with any assignment and assumption of a
Specially Serviced Mortgage Loan, in no event shall the Special Servicer
consent to the creation of any lien on a Mortgaged Property that is senior
to, or on a parity with, the lien of the related Mortgage. Nothing in this
Section 9.5 shall constitute a waiver of the Trustee's right, as the
mortgagee of record, to receive notice of any assignment and assumption of
a Specially Serviced Mortgage Loan, any sale or other transfer of the
related Mortgaged Property or the creation of any lien or other
encumbrance with respect to such Mortgaged Property.
(c) Subject to the Servicing Standard and Section 9.34, and
the rights and duties of the Servicer under Section 8.18, the Special
Servicer may enter into any modification, waiver or amendment (including,
without limitation, the substitution or release of collateral or the
pledge of additional collateral) of the terms of any Specially Serviced
Mortgage Loan, including any modification, waiver or amendment to (i)
reduce the amounts owing under any Specially Serviced Mortgage Loan by
forgiving principal, accrued interest and/or any Yield Maintenance Charge,
(ii) reduce the amount of the Scheduled Payment on any Specially Serviced
Mortgage Loan, including by way of a reduction in the related Mortgage
Rate, (iii) forebear in the enforcement of any right granted under any
Mortgage Note or Mortgage relating to a Specially Serviced Mortgage Loan,
(iv) extend the Maturity Date of any Specially Serviced Mortgage Loan
and/or (v) accept a principal prepayment on any Specially Serviced
Mortgage Loan during any period during which voluntary Principal
Prepayments are prohibited, provided, in the case of any such
modification, waiver or amendment, that (A) the related Mortgagor is in
default with respect to the Specially Serviced Mortgage Loan or, in the
reasonable judgment of
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the Special Servicer, such default is reasonably foreseeable, (B) in the
reasonable judgment of the Special Servicer, such modification, waiver or
amendment would increase the recovery on the Specially Serviced Mortgage
Loan to Certificateholders on a net present value basis (the relevant
discounting of amounts that will be distributable to Certificateholders to
be performed at related Mortgage Rate), (C) such modification, waiver or
amendment would not cause an Adverse REMIC Event to occur, and (D) if
notice to the Operating Adviser of such modification, waiver or amendment
is required pursuant to Section 9.39, the Special Servicer has made such
notice.
In no event, however, shall the Special Servicer (i) extend
the Maturity Date of a Specially Serviced Mortgage Loan beyond a date that
is two years prior to the Final Rated Distribution Date, (ii) if the
Specially Serviced Mortgage Loan is secured by a ground lease, extend the
Maturity Date of such Specially Serviced Mortgage Loan beyond a date which
is ten (10) years prior to the expiration of the term of such ground
lease, (iii) reduce the related Mortgage Rate on any such Specially
Serviced Mortgage Loan to less than the lesser of (a) the original
Mortgage Rate less the Administrative Cost Rate and (b) the highest
Pass-Through Rate on any Class of Certificate (other than the Class X
Certificates), or (iv) defer interest due on any Specially Serviced
Mortgage Loan in excess of 10% of the Scheduled Principal Balance of such
Specially Serviced Mortgage Loan or defer the collection of interest on
any Specially Serviced Mortgage Loan without accruing interest on such
deferred interest at a rate at least equal to the Mortgage Rate of such
Specially Serviced Mortgage Loan. Upon request, the Paying Agent shall
provide to the Special Servicer the rates in clause (iii) above.
Notwithstanding the foregoing, if a Mortgage Loan is a Balloon
Mortgage Loan that has failed to make the Balloon Payment at its original
Maturity Date, and such Balloon Loan is not a Specially Serviced Mortgage
Loan (other than by reason of the failure to make its Balloon Payment) and
has not been delinquent in the preceding twelve months (other than with
respect to the Balloon Payment), then in addition to the other
alternatives specified above, the Special Servicer may make one or more
extensions, in the aggregate not exceeding three years, at the existing
Mortgage Rate for such Mortgage Loan. The preceding sentence does not
modify the limitations of clause (i), (ii) or (iii) of the preceding
paragraph.
The determination of the Special Servicer contemplated by
clause (B) of the proviso to the first paragraph, and clause (ii) of the
second paragraph, of this Section 9.5(c) shall be evidenced by an
Officer's Certificate setting forth the information required under
subsection (c).
(d) In the event the Special Servicer intends to permit a
Mortgagor to substitute collateral for all or any portion of a Mortgaged
Property pursuant to Section 9.5(c) or pledge additional collateral for
the Mortgage Loan pursuant to Section 9.5(c), if the security interest of
the Trust in such collateral would be perfected by possession, or if such
collateral requires special care or protection, then prior to agreeing to
such substitution or addition of collateral, the Special Servicer shall
make arrangements for such possession, care or protection, and prior to
agreeing to such substitution or addition of collateral (or such
arrangement for possession, care or protection) shall obtain the prior
written consent of the Trustee with respect thereto (which consent shall
not be unreasonably withheld, delayed or conditioned); provided, however,
that the Trustee shall not be required (but has the option) to consent to
any substitution
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or addition of collateral or to hold any such collateral which will
require the Trustee to undertake any additional duties or obligations or
incur any additional expense.
(e) The Special Servicer will promptly deliver to the
Servicer, the Operating Adviser, the Trustee, the Paying Agent and the
Rating Agencies a notice, specifying any such assignments and assumptions,
modifications, waivers or amendments, such notice identifying the affected
Specially Serviced Mortgage Loan. Such notice shall set forth the reasons
for such waiver, modification, or amendment (including, but not limited
to, information such as related income and expense statements, rent rolls,
occupancy status, property inspections, and an internal or external
appraisal performed in accordance with MAI standards and methodologies
(and, if done externally, the cost of such appraisal shall be recoverable
as a Servicing Advance subject to the provisions of Section 4.4 hereof)).
The Special Servicer shall also deliver to the Trustee (or the Custodian),
for deposit in the related Mortgage File, an original counterpart of the
agreement relating to such modification, waiver or amendment promptly
following the execution thereof.
(f) No fee described in this Section shall be collected by the
Special Servicer from the Mortgagor (or on behalf of the Mortgagor) in
conjunction with any consent or any modification, waiver or amendment of
the Mortgage Loan if the collection of such fee would cause such consent,
modification, waiver or amendment to be a "significant modification" of
the Mortgage Note within the meaning of Treasury Regulation ss.
1.860G-2(b). Subject to the foregoing, the Special Servicer shall use its
reasonable efforts, in accordance with the Servicing Standard, to collect
any modification fees and other expenses connected with a permitted
modification of a Mortgage Loan from the Mortgagor. The inability of the
Mortgagor to pay any costs and expenses of a proposed modification shall
not impair the right of the Special Servicer, the Servicer or the Trustee
to be reimbursed by the Trust for such expenses (including any cost and
expense associated with the Opinion of Counsel referred to in this
Section).
(g) The Special Servicer shall cooperate with the Servicer (as
provided in Section 8.7) in connection with assignments and assumptions of
Mortgage Loans that are not Specially Serviced Mortgage Loans, and shall
be entitled to receive 50% of any assumption fee paid by the related
Mortgagor in connection with an assignment and assumption executed
pursuant to Section 8.7(a) and 100% of any assumption fee paid by the
related Mortgagor in connection with an assignment and assumption executed
pursuant to Section 8.7(b).
(h) Notwithstanding anything herein to the contrary, (i) the
Special Servicer shall not have any right or obligation to consult with or
to seek and/or obtain consent or approval from the Operating Advisor prior
to acting, and provisions of this Agreement requiring such shall be of no
effect, if the Operating Adviser resigns or is removed, during the period
following such resignation or removal until a replacement is elected and
(ii) no advice, direction or objection from or by the Operating Adviser,
as contemplated by this Agreement, may (and the Special Servicer shall
ignore and act without regard to any such advice, direction or objection
that the Special Servicer has determined, in its reasonable, good faith
judgment, would) (A) require or cause the Special Servicer to violate
applicable law, the terms of any Mortgage Loan, any provision of this
Agreement or the REMIC Provisions, including the Special Servicer's
obligation to act in accordance with the Servicing Standard, (B) result in
an Adverse REMIC Event with respect to any REMIC Pool, (C) expose the
Trust, the Depositor, the Servicer, the
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Special Servicer, the Fiscal Agent, the Paying Agent or the Trustee, or
any of their respective Affiliates, officers, directors, employees or
agents, to any material claim, suit or liability, or (D) materially expand
the scope of the Special Servicer's responsibilities under this Agreement.
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any
Specially Serviced Mortgage Loan, or the receipt by the Special Servicer
of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Special Servicer will immediately notify
the Servicer. The Special Servicer shall determine, in accordance with the
Servicing Standard, whether an instrument of satisfaction shall be
delivered and, if the Special Servicer determines that such instrument
should be delivered, the Special Servicer shall deliver written approval
of such delivery to the Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of
the related REO Property and in accordance with the Servicing Standard,
the Trustee shall execute or cause to be executed such documents as shall
be prepared and furnished to the Trustee by a Special Servicing Officer
(in form reasonably acceptable to the Trustee) and as are necessary for
such purposes. The Trustee or Custodian shall, upon request of the Special
Servicer and delivery to the Trustee and Custodian of a request for
release signed by a Special Servicing Officer substantially in the form of
Exhibit C, release the related Mortgage File to the Special Servicer.
After the transfer of servicing with respect to any Specially Serviced
Mortgage Loan to the Special Servicer, in accordance with the Servicing
Standard, the Servicer shall notify, in writing, the Mortgagor under each
Specially Serviced Mortgage Loan transferred to the Special Servicer, of
such transfer.
(c) The Special Servicer shall send notification in writing,
to the Servicer to request any documents and instruments in the possession
of the Servicer related to any Specially Serviced Mortgage Loan.
(d) The Special Servicer shall, with respect to any
Rehabilitated Mortgage Loan, release to the Servicer all documents and
instruments in the possession of the Special Servicer related to such
Rehabilitated Mortgage Loan. Prior to the transfer of servicing with
respect to any Rehabilitated Mortgage Loan to the Servicer in accordance
with the Servicing Standard, the Special Servicer shall notify, in
writing, each Mortgagor under each Rehabilitated Mortgage Loan of such
transfer.
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SPECIAL
SERVICER TO BE HELD FOR THE TRUSTEE.
(a) The Special Servicer shall transmit to the Custodian (or,
if there is no Custodian, the Trustee) such documents and instruments
coming into the possession of the Special Servicer as from time to time
are required by the terms hereof to be delivered to the Trustee. Any funds
received by the Special Servicer in respect of any Specially Serviced
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Mortgage Loan or any REO Property or which otherwise are collected by the
Special Servicer as Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds in respect of any Specially Serviced Mortgage Loan or
any REO Property shall be transmitted to the Servicer within one Business
Day of receipt to the Certificate Account, except that if such amounts
relate to REO Income, they shall be deposited in the REO Account. The
Special Servicer shall provide access to information and documentation
regarding the Specially Serviced Mortgage Loans to the Trustee, the
Servicer, the Fiscal Agent, the Paying Agent, the Operating Adviser and
their respective agents and accountants at any time upon reasonable
written request and during normal business hours, provided that the
Special Servicer shall not be required to take any action or provide any
information that the Special Servicer determines will result in any
material cost or expense to which it is not entitled to reimbursement
hereunder or will result in any material liability for which it is not
indemnified hereunder; provided further that the Trustee and the Paying
Agent shall be entitled to receive from the Special Servicer all such
information as the Trustee and the Paying Agent shall reasonably require
to perform their respective duties hereunder. In fulfilling such a
request, the Special Servicer shall not be responsible for determining
whether such information is sufficient for the Trustee's, the Servicer's,
the Fiscal Agent's, the Paying Agent's or the Operating Adviser's
purposes.
(b) The Special Servicer hereby acknowledges that the Trust
owns the Specially Serviced Mortgage Loans and all Mortgage Files
representing such Specially Serviced Mortgage Loans and all funds now or
hereafter held by, or under the control of, the Special Servicer that are
collected by the Special Servicer in connection with the Specially
Serviced Mortgage Loans (but excluding any Special Servicer Compensation
and all other amounts to which the Special Servicer is entitled
hereunder); and the Special Servicer agrees that all documents or
instruments constituting part of the Mortgage Files, and such funds
relating to the Specially Serviced Mortgage Loans which come into the
possession or custody of, or which are subject to the control of, the
Special Servicer, shall be held by the Special Servicer for and on behalf
of the Trust.
(c) The Special Servicer also agrees that it shall not create,
incur or subject any Specially Serviced Mortgage Loans, or any funds that
are required to be deposited in any REO Account to any claim, lien,
security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Specially Serviced Mortgage Loan or any funds,
collected on, or in connection with, a Specially Serviced Mortgage Loan.
SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SPECIAL SERVICER.
(a) Special Servicer hereby represents, warrants to and
covenants with the Trustee (in its capacity as Trustee of the Trust) that
as of the date hereof:
(i) the Special Servicer is duly organized, validly
existing and in good standing as a corporation under the laws of the state
of its incorporation and shall be and thereafter remain, in compliance
with the laws of each state in which any Mortgaged Property (including any
REO Property) which is, or is related to, a Specially Serviced Mortgage
Loan is
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located to the extent necessary to perform its obligations under this
Agreement, except where the failure to so qualify or comply would not
adversely affect the Special Servicer's ability to perform its obligations
hereunder in accordance with the terms of this Agreement;
(ii) the Special Servicer has the full power and
authority to execute, deliver, perform, and to enter into and consummate
all transactions and obligations contemplated by this Agreement. The
Special Servicer has duly and validly authorized the execution, delivery
and performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the Depositor, the
Trustee, the Paying Agent, the Servicer and the Fiscal Agent, evidences
the valid and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with its terms subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, receivership, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment
of or compliance with the terms and conditions of this Agreement will not
(1) result in a breach of any term or provision of its charter or by-laws
or (2) conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement or
instrument to which it is a party or by which it may be bound, or any law,
governmental rule, regulation, or judgment, decree or order applicable to
it of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it, which materially and adversely affects
its ability to perform its obligations under this Agreement.
(iv) no litigation is pending or, to the Special
Servicer's knowledge, threatened, against it, that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or its ability to service the Mortgage Loans or to perform any
of its other obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by it, or compliance by it with, this Agreement,
or the consummation of the transactions contemplated hereby, or if any
such consent, approval, authorization or order is required, it has
obtained the same or will obtain the same prior to the time necessary to
perform its obligations under this Agreement, and, except to the extent in
the case of performance, that its failure to be qualified as a foreign
corporation or licensed in one or more states is not necessary for the
performance by it of its obligations hereunder; and
(vi) the performance of the services by the Special
Servicer contemplated by this Agreement are in the ordinary course of
business of the Special Servicer.
(b) It is understood that the representations and warranties
set forth in this Section 9.8 shall survive the execution and delivery of
this Agreement.
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(c) Any cause of action against the Special Servicer arising
out of the breach of any representations and warranties made in this
Section shall accrue upon the giving of written notice to the Special
Servicer by any of the Trustee, the Servicer, the Paying Agent or the
Fiscal Agent. The Special Servicer shall give prompt notice to the
Trustee, the Paying Agent, the Fiscal Agent, the Depositor, the Operating
Adviser and the Servicer of the occurrence, or the failure to occur, of
any event that, with notice, or the passage of time or both, would cause
any representation or warranty in this Section to be untrue or inaccurate
in any respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL
LIABILITY INSURANCE POLICIES.
(a) For all REO Property, to the extent consistent with the
Servicing Standard, the Special Servicer shall use efforts, consistent
with the Servicing Standard, to maintain with a Qualified Insurer a
Standard Hazard Insurance Policy which does not provide for reduction due
to depreciation in an amount which is not less than the full replacement
cost of the improvements of such REO Property or in an amount not less
than the unpaid principal balance plus all unpaid interest and the
cumulative amount of Servicing Advances (plus Advance Interest) made with
respect to such Mortgage Loan of such Mortgage Loan, whichever is less,
but, in any event, in an amount sufficient to avoid the application of any
co-insurance clause.
If the Mortgaged Property is in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available), the
Special Servicer shall maintain a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance
Administration in an amount representing coverage equal to the lesser of
the then outstanding Principal Balance of the Specially Serviced Mortgage
Loan and unpaid Advances (plus Advance Interest) and the maximum insurance
coverage required under such current guidelines. It is understood and
agreed that the Special Servicer has no obligation to obtain earthquake or
other additional insurance on REO Property, except as required by law and,
nevertheless, at its sole option and at the Trust's expense, it (if
required at origination and is available at commercially reasonable rates)
may obtain such earthquake insurance. The Special Servicer shall use its
reasonable efforts, consistent with the Servicing Standard, to obtain a
comprehensive general liability insurance policy for all REO Properties.
The Special Servicer shall, to the extent available at commercially
reasonable rates (as determined by the Special Servicer in accordance with
the Servicing Standard) and to the extent consistent with the Servicing
Standard, use its reasonable efforts to maintain a Rent Loss Policy
covering revenues for a period of at least twelve months and a
comprehensive general liability policy with coverage comparable to prudent
lending requirements in an amount not less than $1 million per occurrence.
All applicable policies required to be maintained by the Special Servicer
pursuant to this Section 9.9(a) shall name the Trustee as loss payee and
be endorsed with a standard mortgagee clause. The costs of such insurance
shall be a Servicing Advance, subject to the provisions of Section 4.4
hereof.
(b) Any amounts collected by the Special Servicer under any
insurance policies maintained pursuant to this Section 9.9 (other than
amounts to be applied to the restoration or repair of the REO Property)
shall be deposited into the applicable REO Account.
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Any cost incurred in maintaining the insurance required hereby for any REO
Property shall be a Servicing Advance, subject to the provisions of
Section 4.4 hereof.
(c) Notwithstanding the above, (i) the Special Servicer shall
have no obligation beyond using its reasonable efforts consistent with the
Servicing Standard to enforce such insurance requirements and (ii) the
Special Servicer shall not be required in any event to maintain or obtain
insurance coverage beyond what is reasonably available at a cost
customarily acceptable and consistent with the Servicing Standard. The
Special Servicer shall notify the Trustee and the Rating Agencies of any
such determination.
The Special Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in the first paragraph of Section
9.9(a) either (i) if the Special Servicer shall have obtained and
maintained a master force placed or blanket insurance policy insuring
against hazard losses on all of the applicable Mortgage Loans serviced by
it, it being understood and agreed that such policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers consistent with the
Servicing Standard, and provided that such policy is issued by a Qualified
Insurer with a minimum claims paying ability rating of at least "A" by
Fitch IBCA and "A" by DCR or otherwise approved by the Rating Agencies or
(ii) if the Special Servicer, provided that the rating of such Person's
long-term debt is not less than "A" by Fitch IBCA and "A" by DCR
self-insures for its obligations as set forth in the first paragraph of
Section 9.9(a). In the event that the Special Servicer shall cause any
Mortgage Loan to be covered by such a master force placed or blanket
insurance policy, the incremental cost of such insurance allocable to such
Mortgage Loan (i.e., other than any minimum or standby premium payable for
such policy whether or not any Mortgage Loan is then covered thereby), if
not borne by the related Mortgagor, shall be paid by the Special Servicer
as a Servicing Advance, subject to the provisions of Section 4.4 hereof.
If such policy contains a deductible clause, the Special Servicer shall,
if there shall not have been maintained on the related Mortgaged Property
a policy complying with this Section 9.9 and there shall have been a loss
that would have been covered by such policy, deposit in the Certificate
Account the amount not otherwise payable under such master force placed or
blanket insurance policy because of such deductible clause to the extent
that such deductible exceeds (i) the deductible under the related Mortgage
Loan or (ii) if there is no deductible limitation required under the
Mortgage Loan, the deductible amount with respect to insurance policies
generally available on properties similar to the related Mortgaged
Property which is consistent with the Servicing Standard, and deliver to
the Trustee an Officer's Certificate describing the calculation of such
amount. In connection with its activities as administrator and servicer of
the Mortgage Loans, the Special Servicer agrees to present, on its behalf
and on behalf of the Trustee, claims under any such master force placed or
blanket insurance policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
The Special Servicer will prepare and present or cause to be prepared and
presented on behalf of the Trustee all claims under the Insurance Policies
with respect to REO Property, and take such actions (including the
negotiation, settlement, compromise or enforcement of the insured's claim)
as shall be necessary to recover under such policies. Any proceeds
disbursed to the Special Servicer in respect of such policies shall be
promptly remitted to the Certificate Account, upon receipt, except for any
amounts realized that are to be applied to the repair or restoration of
the applicable
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REO Property in accordance with the Servicing Standard. Any extraordinary
expenses (but not ordinary and routine or anticipated expenses) incurred
by the Special Servicer in fulfilling its obligations under this Section
9.10 shall be paid by the Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the Special
Servicer shall be entitled to (i) the Special Servicing Fee, (ii) the
Liquidation Fee and (iii) the Work-Out Fee. Such amounts, if any,
collected by the Special Servicer from the related Mortgagor shall be
transferred by the Special Servicer to the Servicer within one Business
Day of receipt thereof, and deposited by the Servicer in the Certificate
Account. The Special Servicer shall be entitled to receive a Liquidation
Fee from the Liquidation Proceeds received in connection with a final
disposition of a Specially Serviced Mortgage Loan or REO Property.
Notwithstanding any other provision herein, the Special Servicing Fee for
each monthly period relating to each Determination Date shall be reduced
by an amount equal to the Compensating Interest, if any, relating to
Specially Serviced Mortgage Loans which have received voluntary Principal
Prepayments not from Liquidation Proceeds or from modifications of
Specially Serviced Mortgage Loans for such Determination Date. The Special
Servicer shall also be entitled to additional servicing compensation of an
amount equal to the excess, if any, of the aggregate Prepayment Interest
Excess relating to Mortgage Loans which are Specially Serviced Mortgage
Loans which have received voluntary Principal Prepayments not from
Liquidation Proceeds or from modifications of Specially Serviced Mortgage
Loans for each Distribution Date over the aggregate Prepayment Interest
Shortfalls for such Mortgage Loans for such Distribution Date.
(b) The Special Servicer shall be entitled to cause the
Servicer to withdraw from the Certificate Account the Special Servicer
Compensation in respect of each such Mortgage Loan in the time and manner
set forth in Section 5.2 of this Agreement. The Special Servicer shall be
required to pay all expenses incurred by it in connection with its
servicing activities hereunder and shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
(c) Additional Special Servicer compensation in the form of
net interest or income on any REO Account, assumption fees, extension
fees, servicing fees, Modification Fees, forbearance fees, Late Fees (net
of Advance Interest) or other usual and customary charges and fees
actually received from the Mortgagor in connection with any Specially
Serviced Mortgage Loan shall be retained by the Special Servicer, to the
extent not required to be deposited in the Certificate Account pursuant to
the terms of this Agreement (other than any such fees payable in
connection with the Pari Passu Loan). The Special Servicer shall also be
permitted to receive 50% of all assumption fees collected with respect to
Mortgage Loans that are not Specially Serviced Mortgage Loans as provided
in Section 8.7(a) and 100% of all assumption fees collected with respect
to Mortgage Loans that are Specially Serviced Mortgage Loans as provided
in Section 8.7(b) (other than any such fees payable in connection with the
Pari Passu Loan). To the extent any component of Special Servicer
Compensation is in respect of amounts usually and customarily paid by
Mortgagors, the Special Servicer shall use reasonable good faith efforts
to collect such amounts from the related Mortgagor, and to the extent so
collected, in full
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or in part, the Special Servicer shall not be entitled to compensation for
the portion so collected therefor hereunder out of the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing
Standard and subject to Section 9.4(a), shall use its reasonable efforts
to foreclose upon, repossess or otherwise comparably convert the ownership
of Mortgaged Properties securing such of the Specially Serviced Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments of such
Mortgage Loan, the sale of such Mortgage Loan in accordance with this
Agreement or the modification of such Mortgage Loan in accordance with
this Agreement. In connection with such foreclosure or other conversion of
ownership, the Special Servicer shall follow the Servicing Standard. The
foregoing is subject to the proviso that the Special Servicer shall not
request that the Servicer make a Servicing Advance for Liquidation
Expenses unless the Special Servicer shall in its sole discretion
determine, consistent with the Servicing Standard, (i) that such
foreclosure will increase on a net present value basis the Liquidation
Proceeds of the Specially Serviced Mortgage Loan to the Trust and (ii)
that such Liquidation Expenses will be recoverable from Liquidation
Proceeds, and any such Servicing Advance by the Servicer or the Trustee or
the Fiscal Agent shall be subject to the determination(s) of
recoverability contemplated by Section 4.4.
(b) The Special Servicer shall not acquire any personal
property relating to any Specially Serviced Mortgage Loan pursuant hereto
unless either:
(i) such personal property is incidental to real
property (within the meaning of Section 856(e)(1) of the Code) so acquired
by the Special Servicer; or
(ii) the Special Servicer shall have received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the
Trust) to the effect that the holding of such personal property by any
REMIC will not cause the imposition of a tax on any REMIC Pool under the
Code or cause any REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this
Agreement, the Special Servicer shall not, on behalf of the Trust, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, and shall not otherwise acquire possession of, or take any
other action with respect to, any Mortgaged Property, if, as a result of
any such action the Trust would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA, or any applicable
comparable federal, state or local law, or a "discharger" or "responsible
party" thereunder, unless the Special Servicer has also previously
determined in accordance with the Servicing Standard, based on a Phase I
Environmental Report prepared by a Person (who may be an employee or
affiliate of the Servicer or the Special Servicer) who regularly conducts
environmental site assessments in accordance with the standards of FNMA in
the case of multi-family mortgage loans and customary servicing practices
in the case of commercial loans for environmental assessments, which
report shall be delivered to the Trustee, that:
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(i) such Mortgaged Property is in compliance with
applicable Environmental Laws or, if not, after consultation with an
environmental expert that taking such actions as are necessary to bring
the Mortgaged Property in compliance therewith is reasonably likely to
produce a greater recovery on a net present value basis than not taking
such actions; and
(ii) there are no circumstances or conditions present or
threatened at such Mortgaged Property relating to the use, management,
disposal or release of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation,
testing, monitoring, removal, clean-up or remediation could be required
under any federal, state or local law or regulation, or that, if any such
materials are present for which such action could be required, after
consultation with an environmental expert taking such actions with respect
to the affected Mortgaged Property is reasonably likely to produce a
greater recovery on a net present value basis than not taking such
actions;
provided, however, that such compliance pursuant to clause (i) above or
the taking of such action pursuant to this clause (ii) shall only be
required to the extent that the cost thereof is a Servicing Advance of the
Servicer pursuant to this Agreement, subject to the provisions of Section
4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated
by Section 9.12(c) may be treated as a Liquidation Expense, or in the
event the related Specially Serviced Mortgage Loan is not liquidated and a
Final Recovery Determination has been made with respect to such Specially
Serviced Mortgage Loan, the Servicer shall treat such cost as a Servicing
Advance subject to the provisions of Section 4.4 hereof; provided that, in
the latter event, the Special Servicer shall use its good faith reasonable
business efforts to recover such cost from the Mortgagor in connection
with the curing of the default under the Specially Serviced Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section
9.12(c), that taking such actions as are necessary to bring any Mortgaged
Property into compliance with applicable Environmental Laws, or taking
such actions with respect to the containment, removal, clean-up or
remediation of hazardous substances, hazardous materials, hazardous
wastes, or petroleum-based materials affecting any such Mortgaged
Property, is not reasonably likely to produce a greater recovery on a net
present value basis than not taking such actions, then the Special
Servicer shall take such action as it deems to be in the best economic
interest of the Trust, including, without limitation, releasing the lien
of the related Mortgage. If the Special Servicer determines that a
material possibility exists that Liquidation Expenses with respect to
Mortgaged Property (taking into account the cost of bringing it into
compliance with applicable Environmental Laws) would exceed the principal
balance of the related Mortgage Loan, the Special Servicer shall not
attempt to bring such Mortgaged Property into compliance and shall not
acquire title to such Mortgaged Property unless it has received the
written consent of the Trustee to such action.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of maintaining
any action with respect to any Specially
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Serviced Mortgage Loan, including, without limitation, any action to
obtain a deficiency judgment with respect to any Specially Serviced
Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains,
through foreclosure on a Mortgage or otherwise, the right to receive title
to a Mortgaged Property, the Special Servicer, as its agent, shall direct
the appropriate party to deliver title to the REO Property to the Trustee
or its nominee.
The Special Servicer may consult with counsel to determine
when an Acquisition Date shall be deemed to occur under the REMIC
Provisions with respect to the Mortgaged Property, the expense of such
consultation being treated as a Servicing Advance related to the
foreclosure, subject to the provisions of Section 4.4 hereof. The Special
Servicer, on behalf of the Trust, shall sell the REO Property
expeditiously, but in any event within the time period, and subject to the
conditions, set forth in Section 9.15. Subject to Section 9.15, the
Special Servicer shall manage, conserve, protect and operate the REO
Property for the holders of beneficial interests in the Trust solely for
the purpose of its prompt disposition and sale.
SECTION 9.14 OPERATION OF REO PROPERTY.
(a) The Special Servicer shall segregate and hold all funds
collected and received in connection with the operation of each REO
Property separate and apart from its own funds and general assets and
shall establish and maintain with respect to each REO Property an account
held in trust for the benefit of the Certificateholders in the name of
"LaSalle Bank National Association, as Trustee for the Holders of Bear
Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates Series 2000-WF1 [name of Property Account]"
(each, an "REO Account"), which shall be an Eligible Account. Amounts in
any REO Account shall be invested in Eligible Investments. The Special
Servicer shall deposit all funds received with respect to an REO Property
in the applicable REO Account within two days of receipt. The Special
Servicer shall account separately for funds received or expended with
respect to each REO Property. All funds in each REO Account may be
invested only in Eligible Investments. The Special Servicer shall notify
the Trustee and the Servicer in writing of the location and account number
of each REO Account and shall notify the Trustee prior to any subsequent
change thereof.
(b) On or before each Special Servicer Remittance Date, the
Special Servicer shall withdraw from each REO Account and deposit in the
Certificate Account, the REO Income received or collected during the
Collection Period immediately preceding such Special Servicer Remittance
Date on or with respect to the related REO Properties and reinvestment
income thereon; provided, however, that the Special Servicer may retain in
such REO Account such portion of such proceeds and collections as may be
necessary to maintain in the REO Account sufficient funds for the proper
operation, management and maintenance of the related REO Property,
including, without limitation, the creation of reasonable reserves for
repairs, replacements, and necessary capital improvements and other
related expenses. The Special Servicer shall notify the Servicer of all
such deposits (and the REO Properties to which the deposits relate) made
into the Certificate Account.
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(c) If the Trust acquires the Mortgaged Property, the Special
Servicer shall have full power and authority, in consultation with the
Operating Adviser, and subject to the specific requirements and
prohibitions of this Agreement, to do any and all things in connection
therewith as are consistent with the Servicing Standard, subject to the
REMIC Provisions, and in such manner as the Special Servicer deems to be
in the best interest of the Trust, and, consistent therewith, may request
that the Servicer make Servicing Advances (which the Servicer shall make,
subject to Section 4.4) to pay for the following items, to the extent such
amounts cannot be paid from REO Income:
(i) all insurance premiums due and payable in respect of
such REO Property;
(ii) all real estate taxes and assessments in respect of
such REO Property that could result or have resulted in the imposition of
a lien thereon; and
(iii) all costs and expenses necessary to maintain,
operate, lease and sell such REO Property (other than capital
expenditures).
(d) The Special Servicer may, and to the extent necessary to
(i) preserve the status of the REO Property as "foreclosure property"
under the REMIC Provisions or (ii) avoid the imposition of a tax on
"income from nonpermitted assets" within the meaning of the REMIC
Provisions, shall use reasonable best efforts to contract with any
Independent Contractor for the operation and management of the REO
Property, provided that:
(i) the terms and conditions of any such contract shall
not be inconsistent herewith;
(ii) the terms of such contract shall be consistent with
the provisions of Section 856 of the Code and Treasury Regulations Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any
such contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in
connection with the operation and management of such Mortgaged Property
underlying the REO Property and (B) deposit on a daily basis all amounts
payable to the Trust in accordance with the contract between the Trust and
the Independent Contractor in an Eligible Account;
(iv) none of the provisions of this Section 9.14
relating to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special Servicer of
any of its duties and obligations to the Trustee with respect to the
operation and management of any such REO Property;
(v) if the Independent Contractor is an Affiliate of the
Special Servicer, the consent of the Operating Adviser and a
Nondisqualification Opinion must be obtained; and
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(vi) the Special Servicer shall be obligated with
respect thereto to the same extent as if it alone were performing all
duties and obligations in connection with the operation and management of
such REO Property.
The Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for the
Trust pursuant to this subsection (d) for indemnification of the Special
Servicer by such Independent Contractor, and nothing in this Agreement
shall be deemed to limit or modify such indemnification. All fees of the
Independent Contractor (other than fees paid for performing services
within the ordinary duties of a Special Servicer which shall be paid by
the Special Servicer) shall be paid from the income derived from the REO
Property. To the extent that the income from the REO Property is
insufficient, such fees shall be advanced by the Servicer as a Servicing
Advance, subject to the provisions of Section 4.4 hereof.
(e) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not rent, lease, or otherwise earn income on behalf
of the Trust or the beneficial owners thereof with respect to REO Property
which might cause the REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (without
giving effect to the final sentence thereof) or result in the receipt by
any REMIC of any "income from nonpermitted assets" within the meaning of
Section 860F(a)(2) of the Code or any "net income from foreclosure
property" which is subject to tax under the REMIC Provisions unless (i)
the Trustee and the Special Servicer have received an Opinion of Counsel
(at the Trust's sole expense) to the effect that, under the REMIC
Provisions and any relevant proposed legislation, any income generated for
REMIC I by the REO Property would not result in the imposition of a tax
upon REMIC I or (ii) in accordance with the Servicing Standard, the
Special Servicer determines the income or earnings with respect to such
REO Property will offset any tax under the REMIC Provisions relating to
such income or earnings and will maximize the net recovery from the REO
Property to the Certificateholders. The Special Servicer shall notify the
Trustee, the Paying Agent and the Servicer of any election by it to incur
such tax, and the Special Servicer (i) shall hold in escrow in an Eligible
Account an amount equal to the tax payable thereby from revenues collected
from the related REO Property, (ii) provide the Paying Agent with all
information for the Paying Agent to file the necessary tax returns in
connection therewith and (iii) upon request by the Paying Agent, pay from
such account to the Paying Agent the amount of the applicable tax. The
Paying Agent shall file the applicable tax returns based on the
information supplied by the Special Servicer and pay the applicable tax
from the amounts collected by the Special Servicer.
(f) Subject to, and without limiting the generality of the
foregoing, the Special Servicer, on behalf of the Trust, shall not:
(i) permit the Trust to enter into, renew or extend any
New Lease with respect to the REO Property, if the New Lease by its terms
will give rise to any income that does not constitute Rents from Real
Property;
(ii) permit any amount to be received or accrued under
any New Lease other than amounts that will constitute Rents from Real
Property;
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(iii) authorize or permit any construction on the REO
Property, other than the completion of a building or other improvement
thereon, and then only if more than ten percent of the construction of
such building or other improvement was completed before default on the
Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) operate, other than through an Independent
Contractor, or allow any other Person to operate, other than through an
Independent Contractor, the REO Property on any date more than 90 days
after the Acquisition Date; unless, in any such case, the Special Servicer
has requested and received an Opinion of Counsel at the Trust's sole
expense to the effect that such action will not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (without giving effect to the final sentence
thereof) at any time that it is held by the applicable REMIC Pool, in
which case the Special Servicer may take such actions as are specified in
such Opinion of Counsel.
SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired by
the Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser,
shall use its reasonable best efforts to sell any REO Property in
accordance with the Servicing Standard, but prior to the end of the third
calendar year following the end of the year of its acquisition, but in any
event prior to the Final Rated Distribution Date, unless (i) the Trustee,
on behalf of the applicable REMIC Pool, has been granted an extension of
time (an "Extension") (which extension shall be applied for at least 60
days prior to the expiration of the period specified above) by the
Internal Revenue Service to sell such REO Property, in which case the
Special Servicer shall continue to attempt to sell the REO Property for
its fair market value for such period longer than the period specified
above as such Extension permits or (ii) the Special Servicer seeks and
subsequently receives, at the expense of the Trust, a Nondisqualification
Opinion, addressed to the Trustee and the Special Servicer, to the effect
that the holding by the Trust of such REO Property subsequent to the
period specified above after its acquisition will not result in the
imposition of taxes on "prohibited transactions" of a REMIC, as defined in
Section 860F(a)(2) of the Code, or cause any REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding, in which case the
Special Servicer shall continue to attempt to sell the REO Property for
its fair market value within the extended period specified in the
Nondisqualification Opinion. If the Trustee has not received an Extension
or such Opinion of Counsel and the Special Servicer is not able to sell
such REO Property within the period specified above, or if an Extension
has been granted and the Special Servicer is unable to sell such REO
Property within the extended time period, the Special Servicer shall,
after consultation with the Operating Adviser, before the end of such
period or extended period, as the case may be, auction the REO Property to
the highest bidder (which may be the Special Servicer) in accordance with
the Servicing Standard; provided, however, that no Interested Person shall
be permitted to purchase the REO Property at a price less than the
Purchase Price except as provided in Section 9.36; and provided, further
that if the Special Servicer intends to bid on any REO Property, (i) the
Special Servicer shall notify the Trustee of such intent, (ii) the Trustee
shall promptly obtain, at the expense of the Trust an Appraisal of such
REO Property and (iii) the
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Special Servicer shall not bid less than the fair market value set forth
in such Appraisal. Neither any Seller nor the Depositor may purchase REO
Property at a price in excess of the fair market value thereof.
(b) Within 30 days of the sale of the REO Property, the
Special Servicer shall provide to the Trustee, the Paying Agent and the
Servicer a statement of accounting for such REO Property, including
without limitation, (i) the Acquisition Date for the REO Property, (ii)
the date of disposition of the REO Property, (iii) the sale price and
related selling and other expenses, (iv) accrued interest (including
interest deemed to have accrued) on the Specially Serviced Mortgage Loan
to which the REO Property related, calculated from the Acquisition Date to
the disposition date, (v) final property operating statements, and (vi)
such other information as the Trustee or the Paying Agent may reasonably
request in writing.
(c) The Liquidation Proceeds from the final disposition of the
REO Property shall be deposited in the Certificate Account within one
Business Day of receipt.
(d) The Special Servicer shall provide the necessary
information to the Servicer and the Paying Agent to allow the Servicer to
prepare, deliver and file reports of foreclosure and abandonment in
accordance with Section 6050J and Section 6050P, if required, of the Code
with respect to such REO Property and shall deliver such information with
respect thereto as the Servicer, the Paying Agent or the Trustee may
request in writing.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In connection
with the enforcement of the rights of the Trust to any property securing
any Specially Serviced Mortgage Loan other than the related Mortgaged
Property, the Special Servicer shall consult with counsel to determine how
best to enforce such rights in a manner consistent with the REMIC
Provisions and shall not, based on a Nondisqualification Opinion addressed
to the Special Servicer and the Trustee (the cost of which shall be an
expense of the Trust), take any action that could result in the failure of
any REMIC Pool to qualify as a REMIC while any Certificates are
outstanding, unless such action has been approved by a vote of 100% of
each Class of Certificateholders (including the Class R-I, Class R-II and
Class R-III Certificateholders).
SECTION 9.17 SALE OF DEFAULTED MORTGAGE LOANS. In lieu of
exercising remedies pursuant to the terms of any Mortgage Loan and
Mortgage, the Special Servicer may sell a Specially Serviced Mortgage Loan
that is a Defaulted Mortgage Loan for cash in accordance with Section 9.36
hereof.
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
The Special Servicer shall deliver to the Depositor, the Servicer and the
Trustee on or before the Report Date occurring in March of each year,
commencing in March 2001, an Officer's Certificate stating, as to the
signer thereof, that (A) a review of the activities of the Special
Servicer during the preceding calendar year or portion thereof and of the
performance of the Special Servicer under this Agreement has been made
under such officer's supervision and (B) to the best of such officer's
knowledge, based on such review, the Special Servicer has fulfilled all
its obligations under this Agreement in all material respects throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and
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the nature and status thereof. The Special Servicer shall forward a copy
of each such statement to the Rating Agencies.
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT.
On or before the Report Date occurring in April of each year, commencing
in April 2001, the Special Servicer, at its expense, shall cause a firm of
nationally recognized independent public accountants that is a member of
the American Institute of Certified Public Accountants to furnish a
statement to the Depositor, the Servicer, the Operating Adviser, the
Paying Agent and the Trustee to the effect that such firm has examined
certain documents and records relating to the servicing of the Mortgage
Loans and that, on the basis of such examination conducted substantially
in compliance with the USAP or the FHLMC Audit Program, such servicing for
the preceding calendar year has been conducted in compliance with such
agreements except for such significant exceptions or errors in records
that, in the opinion of such firm, the USAP or FHLMC Audit Program require
it to report. The Special Servicer shall forward a copy of each such
report to the Rating Agencies.
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which
the Special Servicer may be merged or consolidated, or any Person
resulting from any merger, conversion, other change in form or
consolidation to which the Special Servicer shall be a party, or any
Person succeeding to the business of the Special Servicer, shall be the
successor of the Special Servicer hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto; provided, however, that each of the Rating Agencies provides
Rating Agency Confirmation to the Trustee. If the conditions to the
proviso in the foregoing sentence are not met, the Trustee may terminate
the Special Servicer's servicing of the Specially Serviced Mortgage Loans
pursuant hereto, such termination to be effected in the manner set forth
in Section 9.31.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21, the
Special Servicer shall not resign from the obligations and duties hereby
imposed on it unless it determines that the Special Servicer's duties
hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities
carried on by it. Any such determination permitting the resignation of the
Special Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Servicer, the Operating Adviser, and the Trustee.
No such resignation shall become effective until a successor servicer
designated by the Operating Adviser and the Trustee shall have (i)
satisfied the requirements that would apply pursuant to Section 9.20
hereof if a merger of the Special Servicer had occurred, (ii) assumed the
Special Servicer's responsibilities and obligations under this Agreement
and (iii) Rating Agency Confirmation shall have been obtained. Notice of
such resignation shall be given promptly by the Special Servicer to the
Servicer and the Trustee.
(b) The Special Servicer may resign from the obligations and
duties hereby imposed on it, upon reasonable notice to the Trustee,
provided that (i) a successor Special Servicer is (x) available, (y)
reasonably acceptable to the Operating Adviser, the Depositor, and the
Trustee, and (z) willing to assume the obligations, responsibilities and
covenants to be
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performed hereunder by the Special Servicer on substantially the same
terms and conditions, and for not more than equivalent compensation as
that herein provided, (ii) the successor Special Servicer has assets of at
least $15,000,000 and (iii) Rating Agency Confirmation is obtained with
respect to such resignation, as evidenced by a letter from each Rating
Agency delivered to the Trustee. Any costs of such resignation and of
obtaining a replacement Special Servicer shall be borne by the Special
Servicer and shall not be an expense of the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the Special Servicer hereunder in form and substance
reasonably satisfactory to the Trustee.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL
SERVICER. Except as expressly provided herein including Section 9.3, the
Special Servicer shall not assign or transfer any of its rights, benefits
or privileges hereunder to any other Person, or delegate to or subcontract
with, or authorize or appoint any other Person to perform any of the
duties, covenants or obligations to be performed by the Special Servicer
hereunder; provided that the Special Servicer shall have the right without
the prior written consent of the Trustee to delegate or assign to or
subcontract with or authorize or appoint an Affiliate of the Special
Servicer to perform and carry out any duties, covenants or obligations to
be performed and carried out by the Special Servicer hereunder. In no
case, however, shall any such delegation, subcontracting or assignment to
an Affiliate of the Special Servicer relieve the Special Servicer of any
responsibility, obligation or liability hereunder. Notice of such
permitted assignment shall be given promptly by the Special Servicer to
the Servicer and the Trustee, and any cost thereof shall be borne by the
Special Servicer.
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER
AND OTHERS.
(a) Neither the Special Servicer nor any of the directors,
officers, employees or agents of the Special Servicer shall be under any
liability to the Certificateholders or the Trustee for any action taken or
for refraining from the taking of any action in good faith and using
reasonable business judgment; provided that this provision shall not
protect the Special Servicer or any such person against any breach of a
representation or warranty contained herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties hereunder or by reason of
negligent disregard of obligations and duties hereunder. The Special
Servicer and any director, officer, employee or agent of the Special
Servicer may rely in good faith on any document of any kind which is prima
facie properly executed and submitted by any Person (including, without
limitation, the information and reports delivered by or at the direction
of the Servicer or any director, officer, employee or agent of the
Servicer) respecting any matters arising hereunder. The Special Servicer
shall not be under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its duties to service the
Specially Serviced Mortgage Loans in accordance with this Agreement;
provided that the Special Servicer may in its sole discretion undertake
any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders and the Trustee
in the Specially Serviced Mortgage Loans, or shall undertake any such
action if instructed to do so by the Trustee. In such event, all
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legal expenses and costs of such action (other than those that are
connected with the routine performance by the Special Servicer of its
duties hereunder) shall be expenses and costs of the Trust, and the
Special Servicer shall be entitled to be reimbursed therefor as provided
by Section 5.2 hereof. Notwithstanding any term in this Agreement, the
Special Servicer shall not be relieved from liability to, or entitled to
indemnification from, the Trust for any action taken by it at the
direction of the Operating Adviser which is in conflict with the Servicing
Standard.
(b) In addition, the Special Servicer shall have no liability
with respect to, and shall be entitled to conclusively rely on as to the
truth of the statements and the correctness of the opinions expressed in
any certificates or opinions furnished to the Special Servicer and
conforming to the requirements of this Agreement. Neither the Special
Servicer, nor any director, officer, employee, agent or Affiliate, shall
be personally liable for any error of judgement made in good faith by any
officer, unless it shall be proved that the Special Servicer or such
officer was negligent in ascertaining the pertinent facts. Neither the
Special Servicer, nor any director, officer, employee, agent or Affiliate,
shall be personally liable for any action taken, suffered or omitted by it
in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement. The
Special Servicer shall be entitled to rely on reports and information
supplied to it by the Servicer and the related Mortgagors and shall have
no duty to investigate or confirm the accuracy of any such report or
information.
(c) The Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or
arise from any breach of any representation, warranty or covenant made by
the Depositor, the Servicer, the Fiscal Agent, the Paying Agent or Trustee
in this Agreement. The Trust shall indemnify and hold harmless the Special
Servicer from any and all claims, liabilities, costs, charges, fees or
other expenses which relate to or arise from any such breach of
representation, warranty or covenant to the extent such amounts are not
recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be
protected in acting or refraining from acting upon, any resolution,
officer's certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed or in good faith
believed by it to be genuine and to have been signed or presented by the
proper party or parties; and
(ii) the Special Servicer may consult with counsel, and
any written advice or Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel.
(e) The Special Servicer and any director, officer, employee
or agent of the Special Servicer shall be indemnified by the Trustee, the
Fiscal Agent and the Paying Agent, as the case may be, and held harmless
against any loss, liability or expense including reasonable attorneys'
fees incurred in connection with any legal action relating to the
Trustee's, the Fiscal Agent's or Paying Agent's, as the case may be,
respective willful misfeasance, bad faith or
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negligence in the performance of its respective duties hereunder or by
reason of negligent disregard by such Person of its respective duties
hereunder, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of
the Special Servicer's duties hereunder or by reason of negligent
disregard of the Special Servicer's obligations and duties hereunder. The
Special Servicer shall promptly notify the Trustee, the Fiscal Agent and
Paying Agent if a claim is made by a third party entitling the Special
Servicer to indemnification hereunder, whereupon the Trustee or the Paying
Agent, as applicable, shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Special Servicer). Any failure to
so notify the Trustee or the Paying Agent, as applicable, shall not affect
any rights the Special Servicer may have to indemnification hereunder or
otherwise, unless the interest of the Trustee or the Paying Agent, as
applicable, is materially prejudiced thereby. The indemnification provided
herein shall survive the termination of this Agreement and the termination
or resignation of the Special Servicer. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Special
Servicer hereunder. Any payment hereunder made by the Trustee, the Fiscal
Agent or Paying Agent, as the case may be, pursuant to this paragraph to
the Special Servicer shall be paid from the Trustee's, Fiscal Agent's or
Paying Agent's, as the case may be, own funds, without reimbursement from
the Trust therefor, except achieved through subrogation as provided in
this Agreement.
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any director, officer, employee
or agent of the Special Servicer shall be indemnified by the Trust, and
held harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses incurred in connection with any legal
action relating to (i) this Agreement, and (ii) any action taken by the
Special Servicer in accordance with the instruction delivered in writing
to the Special Servicer by the Trustee or the Servicer pursuant to any
provision of this Agreement in each case and the Special Servicer and each
of its directors, officers, employees and agents shall be entitled to
indemnification from the Trust for any loss, liability or expense
(including attorney's fees) incurred in connection with the provision by
the Special Servicer of any information included by the Special Servicer
in the report required to be provided by the Special Servicer pursuant to
this Agreement, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the performance
of duties hereunder or by reason of negligent disregard of obligations and
duties hereunder. The Special Servicer shall promptly notify the Trustee
and the Paying Agent if a claim is made by a third party with respect
hereto or the Specially Serviced Mortgage Loans entitling the Special
Servicer to indemnification hereunder, whereupon the Trustee shall assume
the defense of any such claim (with counsel reasonably satisfactory to the
Special Servicer) and the Trust shall pay, from amounts on deposit in the
Certificate Account pursuant to Section 5.2, all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy
any judgment or decree which may be entered against it or them in respect
of such claim. Any failure to so notify the Trustee or the Paying Agent
shall not affect any rights the Special Servicer may have to
indemnification hereunder or otherwise, unless the interest of the Trust
is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer. Any expenses incurred or
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indemnification payments made by the Trust shall be reimbursed by the
party responsible if a court of competent jurisdiction makes a final,
non-appealable judgment that such Person was found to have acted with
willful misfeasance, bad faith or negligence.
(b) The Special Servicer agrees to indemnify the Trust, and
the Trustee, the Fiscal Agent, the Paying Agent, the Depositor, the
Servicer and any director, officer, employee or agent or Controlling
Person of the Trustee, the Fiscal Agent, the Paying Agent, the Depositor
and the Servicer, and hold them harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses that the
Trust or the Trustee, the Fiscal Agent, the Paying Agent, the Depositor or
the Servicer may sustain arising from or as a result of the willful
misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder by the Special Servicer. The Trustee, the Fiscal Agent, the
Paying Agent, the Depositor or the Servicer shall immediately notify the
Special Servicer if a claim is made by a third party with respect to this
Agreement or the Specially Serviced Mortgage Loans entitling the Trust or
the Trustee, the Fiscal Agent, the Paying Agent, the Depositor or the
Servicer, as the case may be, to indemnification hereunder, whereupon the
Special Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Trustee, the Fiscal Agent, the Paying
Agent, the Depositor or the Servicer, as the case may be) and pay all
expenses in connection therewith, including counsel fees, and promptly
pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Special Servicer shall not affect any rights the Trust or the Trustee, the
Fiscal Agent, the Paying Agent, the Depositor or the Servicer may have to
indemnification under this Agreement or otherwise, unless the Special
Servicer's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this
Agreement and the termination or resignation of the Special Servicer or
the Trustee or Fiscal Agent. Any expenses incurred or indemnification
payments made by the Special Servicer shall be reimbursed by the party so
paid, if a court of competent jurisdiction makes a final, non-appealable
judgment that such person was found to have acted with willful
misfeasance, bad faith or negligence.
(c) The initial Special Servicer and the Depositor expressly
agree that the only information furnished by or on behalf of the Special
Servicer for inclusion in the Prospectus Supplement is the information set
forth in the paragraphs under the caption "Servicing of the Mortgage
Loans--The Special Servicer" of the Preliminary Prospectus Supplement and
Final Prospectus Supplement.
(d) The 99-C1 Special Servicer and any director, officer,
employee or agent of the 99-C1 Special Servicer shall be indemnified by
the Trust and held harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments and any other
costs, liabilities, fees and expenses (collectively, "Losses") incurred in
connection with any legal action relating to the 99-C1 Pooling and
Servicing Agreement and this Agreement, and relating to the Pari Passu
Loan (but excluding any such Losses allocable to the Related Trust Fund
Mortgage Loan), reasonably requiring the use of counsel or the incurring
of expenses other than any Losses incurred by reason of the 99-C1 Special
Servicer's willful misfeasance, bad faith or negligence in the performance
of its duties under the 99-C1 Pooling and Servicing Agreement.
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SECTION 9.25 [RESERVED].
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The
Special Servicer or any agent of the Special Servicer (if the Special
Servicer is not Xxxxx Fargo Bank, National Association unless Xxxxx Fargo
Bank, National Association acquires the Certificates at the then fair
market value of such Certificates) in its individual capacity or in any
other capacity may become the owner or pledgee of Certificates with the
same rights as it would have if they were not the Special Servicer or such
agent. Any such interest of the Special Servicer or such agent in the
Certificates shall not be taken into account when evaluating whether
actions of the Special Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions
may have the effect of benefiting the Class or Classes of Certificates
owned by the Special Servicer.
SECTION 9.27 TAX REPORTING. From and after the Closing Date,
the Special Servicer shall provide the necessary information to the
Servicer to allow the Servicer to comply with the Mortgagor tax reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code with
respect to any Specially Serviced Mortgage Loan. The Special Servicer
shall provide to the Servicer copies of any such reports. The Servicer
shall forward such reports to the Trustee and the Paying Agent.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated
that the Servicer will be collecting all payments with respect to the
Mortgage Loans (other than payments with respect to REO Income). If,
however, the Special Servicer should receive any payments with respect to
any Mortgage Loan (other than REO Income) it shall, within one Business
Day of receipt from the Mortgagor or otherwise of any amounts attributable
to payments with respect to or the sale of any Mortgage Loan or any
Specially Serviced Mortgage Loan, if any, (but not including REO Income,
which shall be deposited in the applicable REO Account as provided in
Section 9.14 hereof), either, (i) forward such payment (endorsed, if
applicable, to the order of the Servicer), to the Servicer, or (ii)
deposit such amounts, or cause such amounts to be deposited, in the
Certificate Account. The Special Servicer shall notify the Servicer of
each such amount received on or before the date required for the making of
such deposit or transfer, as the case may be, indicating the Mortgage Loan
or Specially Serviced Mortgage Loan to which the amount is to be applied
and the type of payment made by or on behalf of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS. The Special
Servicer shall not take any action or cause any REMIC to take any action
that would (i) endanger the status of any REMIC as a REMIC under the Code
or (ii) subject to Section 9.14(e), result in the imposition of a tax upon
any REMIC (including, but not limited to, the tax on prohibited
transactions as defined in Code Section 860F(a)(2) or on prohibited
contributions pursuant to Section 860G(d)) unless the Servicer and the
Trustee have received a Nondisqualification Opinion (at the expense of the
party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such
tax. The Special Servicer shall comply with the provisions of Article XII
hereof.
SECTION 9.30 TERMINATION.
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(a) The obligations and responsibilities of the Special
Servicer created hereby (other than the obligation of the Special Servicer
to make payments to the Servicer as set forth in Section 9.28 and the
obligations of the Special Servicer pursuant to Sections 9.8 and 9.24
hereof) shall terminate on the date which is the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining outstanding or, (B) the disposition of all REO Property in
respect of any Specially Serviced Mortgage Loan, (ii) 60 days following
the date on which the Trustee or the Operating Adviser has given written
notice to the Special Servicer that this Agreement is terminated pursuant
to Section 9.30(b) or 9.30(c), respectively, and (iii) the effective date
of any resignation of the Special Servicer effected pursuant to and in
accordance with Section 9.21.
(b) The Trustee may terminate the Special Servicer, in the
event that (i) the Special Servicer has failed to remit any amount
required to be remitted to the Trustee, the Servicer, the Fiscal Agent,
the Paying Agent or the Depositor under the terms of this Agreement, (ii)
the Special Servicer has breached any material obligation set forth in
this Agreement and has failed to cure such breach within thirty (30) days
after written notice of such failure, requiring the same to be remedied,
shall have been given to the Special Servicer by the Trustee or the
Servicer, that materially and adversely affects the interests of the
Certificateholders, provided, however, that if the Special Servicer
certifies to the Trustee and the Depositor that the Special Servicer is in
good faith attempting to remedy such failure, such cure period will be
extended to the extent necessary to permit the Special Servicer to cure
such failure by not more than an additional 90 days; (iii) the Special
Servicer has made one or more false or misleading representations or
warranties herein that materially and adversely affects the interest of
the Certificateholders, and has failed to cure such breach within thirty
(30) days after notice by the Trustee or the Servicer; (iv) the Trustee
shall have received written notice from either Rating Agency that the
continuation of the Special Servicer in such capacity would result in the
downgrade, qualification (including the placement of any rated Certificate
on "credit watch" or the equivalent) or withdrawal of any rating then
assigned by that Rating Agency to any Class of Certificates; (v) a decree
or order of a court or agency or supervisory authority having jurisdiction
in the premises in an involuntary case under any present or future federal
or state bankruptcy, insolvency or similar law for the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation
of its affairs, shall have been entered against the Special Servicer and
such decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; (vi) the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings relating to the Special
Servicer or of or relating to all or substantially all of its property; or
(vii) 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. Such termination shall be effective on the date after the date
of any of the above events that the Trustee specifies in a written notice
to the Special Servicer specifying the reason for such termination.
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(c) The Operating Adviser shall have the right to direct the
Trustee to terminate the Special Servicer, provided that the Operating
Adviser shall appoint a successor Special Servicer who will (i) be
reasonably satisfactory to the Trustee, the Servicer and the Depositor,
and (ii) execute and deliver to the Trustee an agreement, in form and
substance reasonably satisfactory to the Trustee, whereby the successor
Special Servicer agrees to assume and perform punctually the duties of the
Special Servicer specified in this Agreement; and provided, further, that
the Trustee shall have received Rating Agency Confirmation from each
Rating Agency prior to the termination of the Special Servicer. The
Special Servicer shall not be terminated pursuant to this subsection (c)
until a successor Special Servicer shall have been appointed.
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of
Section 9.30(a), specifying the Distribution Date upon which the final
distribution shall be made, shall be given promptly by the Special
Servicer to the Trustee and the Paying Agent no later than the later of
(i) five Business Days after the final payment or other liquidation of the
last Mortgage Loan or (ii) the sixth day of the month in which the final
Distribution Date will occur. Upon any such termination, the rights and
duties of the Special Servicer (other than the rights and duties of the
Special Servicer pursuant to Sections 9.8, 9.23 and 9.24 hereof) shall
terminate and the Special Servicer shall transfer to the Servicer the
amounts remaining in each REO Account and shall thereafter terminate each
REO Account and any other account or fund maintained with respect to the
Specially Serviced Mortgage Loans.
(b) On the date specified in a written notice of termination
given to the Special Servicer pursuant to clause (ii) of Section 9.30(a),
all rights and duties of the Special Servicer under this Agreement,
whether with respect to the Specially Serviced Mortgage Loans or
otherwise, shall terminate (other than the rights and duties of the
Special Servicer pursuant to Sections 9.8, 9.23 and 9.24 hereof);
provided, that in no event shall the termination of the Special Servicer
be effective until the Trustee or other successor Special Servicer shall
have succeeded the Special Servicer as successor Special Servicer,
notified the Special Servicer of such designation, and such successor
shall have assumed the Special Servicer's obligations and
responsibilities, as set forth in an agreement substantially in the form
hereof, with respect to the Specially Serviced Mortgage Loans. The Trustee
or other successor Special Servicer may not succeed the Special Servicer
as Special Servicer until and unless it has satisfied the provisions that
would apply to a Person succeeding to the business of the Special Servicer
pursuant to Section 9.20 hereof. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Special Servicer, as
attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination. The
Special Servicer agrees to cooperate with the Trustee and the Fiscal Agent
in effecting the termination of the Special Servicer's responsibilities
and rights hereunder as Special Servicer including, without limitation,
providing the Trustee all documents and records in electronic or other
form reasonably requested by it to enable the successor Special Servicer
designated by the Trustee to assume the Special Servicer's functions
hereunder and to effect the transfer to such successor for administration
by it of all amounts which shall at the time be or should have been
deposited by the Special Servicer in any REO
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Account and any other account or fund maintained or thereafter received
with respect to the Specially Serviced Mortgage Loans.
(c) Upon any termination of the Special Servicer hereunder,
any Work-Out Fees payable with respect to any then existing Rehabilitated
Mortgage Loans shall cease to be payable (either to the terminated Special
Servicer or any successor).
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced Mortgage
Loan, shall provide to the Servicer, the Paying Agent, and the Trustee on
or prior to the Determination Date for each month, a Special Servicer
Monthly Report, a CMSA Report and Loan Periodic Update File in such
electronic format as is mutually acceptable to the Servicer and the
Special Servicer and in CMSA format (as in effect on the date hereof). The
Servicer and the Paying Agent may use such reports or information
contained therein to prepare its reports and the Servicer may, at its
option, forward such reports directly to the Depositor and the Rating
Agencies. The Special Servicer Monthly Report shall contain a narrative
description for each Specially Serviced Mortgage Loan of the current
status of such Mortgage Loan including the status of any workout or
foreclosure, the change in such status since the prior Special Servicer
Monthly Report, and other information described in Exhibit O.
(b) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination with
respect to any Mortgage Loan or REO Property and the basis thereof. Each
Final Recovery Determination shall be evidenced by an Officer's
Certificate delivered to the Trustee, the Paying Agent and the Servicer no
later than the ten Business Day following such Final Recovery
Determination.
(c) The Special Servicer shall provide to the Servicer or the
Paying Agent at the reasonable request in writing of the Servicer or
Paying Agent, any information in its possession with respect to the
Specially Serviced Mortgage Loans which the Servicer or Paying Agent, as
the case may be, shall require in order for the Servicer or Paying Agent
to comply with its obligations under this Agreement; provided that the
Special Servicer shall not be required to take any action or provide any
information that the Special Servicer determines will result in any
material cost or expense to which it is not entitled to reimbursement
hereunder or will result in any material liability for which it is not
indemnified hereunder. The Servicer will provide the Special Servicer at
the request of the Special Servicer any information in its possession with
respect to the Mortgage Loans which the Servicer shall require in order
for the Special Servicer to comply with its obligations under this
Agreement.
(d) Not later than 20 days after each Special Servicer
Remittance Date, the Special Servicer shall forward to the Servicer a
statement setting forth the status of each REO Account as of the close of
business on such Special Servicer Remittance Date, stating that all
remittances required to be made by it as required by this Agreement to be
made by the Special Servicer have been made (or, if any required
distribution has not been made by the Special Servicer, specifying the
nature and status thereof) and showing, for the period from the day
following the preceding Special Servicer Remittance
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Date to such Special Servicer Remittance Date, the aggregate of deposits
into and withdrawals from each REO Account for each category of deposit
specified in Section 5.1 of this Agreement and each category of withdrawal
specified in Section 5.2 of this Agreement.
(e) The Special Servicer shall use reasonable efforts to
obtain and, to the extent obtained, to deliver to the Servicer, the
Trustee and the Operating Adviser, on or before April 15 of each year,
commencing with April 15, 2000, (i) copies of the prior year operating
statements and quarterly statements, if available, for each Mortgaged
Property underlying a Specially Serviced Mortgage Loan or REO Property as
of its fiscal year end, provided that either the related Mortgage Note or
Mortgage requires the Mortgagor to provide such information, or if the
related Mortgage Loan has become an REO Property, (ii) a copy of the most
recent rent roll available for each Mortgaged Property, and (iii) a table,
setting forth the Debt Service Coverage Ratio and occupancy with respect
to each Mortgaged Property covered by the operating statements delivered
above.
(f) The Special Servicer shall deliver to the Servicer, the
Paying Agent, the Depositor and the Trustee all such other information
with respect to the Specially Serviced Mortgage Loans at such times and to
such extent as the Servicer, the Paying Agent, the Trustee or Depositor
may from time to time reasonably request; provided, however, that the
Special Servicer shall not be required to produce any ad hoc non-standard
written reports with respect to such Mortgage Loans except if any Person
(other than Paying Agent or the Trustee) requesting such report pays a
reasonable fee to be determined by the Special Servicer.
(g) The Special Servicer shall deliver a written Inspection
Report of each Specially Serviced Mortgage Loan in accordance with Section
9.4(b).
(h) The Special Servicer shall provide as soon as practicable
after a Mortgage Loan becomes a Specially Serviced Mortgage Loan, to the
Servicer its estimate of the net recoverable amount to the
Certificateholders and anticipated expenses in connection therewith (and a
general description of the plan to achieve such recovery) of such
Specially Serviced Mortgage Loan and other information reasonably
requested by the Servicer. The Special Servicer shall update such
information on a quarterly basis.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE SERVICER
AND PAYING AGENT.
(a) The Special Servicer shall furnish on a timely basis such
reports, certifications, and information as are reasonably requested by
the Servicer or Paying Agent to enable it to perform its duties under this
Agreement; provided that no such request shall (i) require or cause the
Special Servicer to violate the Code, any provision of this Agreement,
including the Special Servicer's obligation to act in accordance with the
servicing standards set forth in this Agreement and to maintain the REMIC
status of any REMIC Pool or (ii) expose the Special Servicer, the Trust,
the Fiscal Agent, the Paying Agent, or the Trustee to liability or
materially expand the scope of the Special Servicer's responsibilities
under this Agreement. In addition, the Special Servicer shall notify the
Servicer of all expenditures incurred by it with respect to the Specially
Serviced Mortgage Loans which are required to be made by the Servicer
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as Servicing Advances as provided herein, subject to the provisions of
Section 4.4 hereof. The Special Servicer shall also remit all invoices
relating to Servicing Advances promptly upon receipt of such invoices.
(b) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters, the expense of which shall be charged to the Operating
Adviser, but in no event shall such costs be an expense of the Trust:
(i) whether the foreclosure of a Mortgaged Property
relating to a Specially Serviced Mortgage Loan would be in the best
economic interest of the Trust;
(ii) if the Special Servicer elects to proceed with a
foreclosure, whether a deficiency judgment should or should not be sought
because the likely recovery will or will not be sufficient to warrant the
cost, time and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any
"due-on-sale" clause or "due-on-encumbrance" clause contained in a
Mortgage Loan or a Specially Serviced Mortgage Loan is in the best
economic interest of the Trust;
(iv) in connection with entering into an assumption
agreement from or with a person to whom a Mortgaged Property securing a
Specially Serviced Mortgage Loan has been or is about to be conveyed, or
to release the original Mortgagor from liability upon a Specially Serviced
Mortgage Loan and substitute a new Mortgagor, and whether the credit
status of the prospective new Mortgagor is in compliance with the Special
Servicer's regular commercial mortgage origination or servicing standard;
(v) in connection with the foreclosure on a Specially
Serviced Mortgage Loan secured by a Mortgaged Property which is not in
compliance with CERCLA, or any comparable environmental law, whether it is
in the best economic interest of the Trust to bring the Mortgaged Property
into compliance therewith and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which
shall include any proposed release, substitution or addition of
collateral), extension, waiver, amendment, discounted payoff or sale of a
Mortgage Loan, prepare a summary of such proposed action and an analysis
of whether or not such action is reasonably likely to produce a greater
recovery on a present value basis than liquidation of such Mortgage Loan;
such analysis shall specify the basis on which the Special Servicer made
such determination, including the status of any existing material default
or the grounds for concluding that a payment default is imminent.
SECTION 9.34 CERTAIN REMIC LIMITATIONS ON MODIFICATION OF
SPECIALLY SERVICED MORTGAGE LOANS. Notwithstanding anything to the
contrary in this Agreement, the Special Servicer shall not permit any
modification of any Money Term of a Specially Serviced Mortgage Loan
unless (i) the Special Servicer shall have received a Nondisqualification
Opinion or a ruling from the Internal Revenue Service to the effect that
such modification would not be treated as an exchange pursuant to Section
1001 of the Code (or, if it would be so treated, would
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not be treated as a "significant modification" for purposes of Treasury
Regulations Sec 1.860G-2(B) of the Code), the reasonable cost of which
opinion shall be an expense of the Trust or (ii) such modification meets
the requirements set forth in Section 9.5.
SECTION 9.35 [RESERVED].
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS AND REO
PROPERTIES.
(a) The Special Servicer may, after providing notice to the
Operating Adviser, subject to the limitations in paragraph (d) below,
offer to sell for cash to any Person, for an amount equal to the Purchase
Price therefor, any REO Property or Defaulted Mortgage Loan. In the case
of REO Property, the Special Servicer shall offer to sell such REO
Property no later than the time determined by the Special Servicer to be
sufficient to result in the sale of such REO Property on or prior to the
date specified in Section 9.15 and in any event prior to the Final Rated
Distribution Date. The Special Servicer shall give the Operating Adviser,
the Servicer, the Paying Agent and the Trustee not less than five days'
prior written notice of its intention to sell any such Defaulted Mortgage
Loan or REO Property, and in respect of such sale, the Special Servicer
shall offer such Defaulted Mortgage Loan or REO Property for sale in a
fair auction or other manner as is consistent with the Servicing Standard
and shall accept the highest cash bid received in such auction or other
procedure from any Person for any Defaulted Mortgage Loan or REO Property
in an amount, except as otherwise provided in this Section at least equal
to the Purchase Price therefor.
In the absence of a bid in an amount at least equal to the
Purchase Price (after deducting allocable expenses), the Special Servicer
shall accept the highest bid received from any Person other than the
Servicer, the Special Servicer or the Operating Adviser, if any, that the
Special Servicer determines to be a fair price for the Defaulted Mortgage
Loan or REO Property. However, the Special Servicer may be the purchaser
of a Defaulted Mortgage Loan or a related REO Property only if the price
at which the Special Servicer purchases is at least equal to the highest
bid and it has received at least three bids from non-affiliated parties.
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. The Special Servicer
shall not accept a bid from Xxxxx Fargo Bank, National Association, either
Seller or the Depositor unless such bid is in the good faith judgment of
the Special Servicer, equal to (and not greater than) the then market
value of such REO Property or the fair price of the Defaulted Mortgaged
Loan.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest cash bid if the
Special Servicer determines, in accordance with the Servicing Standard,
that rejection of such bid would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
bid (including a bid lower than the Purchase Price) of a Person other than
an Interested Person or the Operating Adviser, if any, if it determines,
in accordance with the Servicing Standard, that acceptance of such bid
would be in the best interests of the Certificateholders (for example, if
the prospective buyer making the lower bid is more likely to perform its
obligations, or the terms offered by the prospective buyer making the
lower bid are more favorable), provided, that if any Defaulted
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Mortgage Loan or REO Property as to which an Appraisal Reduction has
occurred is to be sold by the Special Servicer, then the Special Servicer
shall not, without the approval of the Operating Adviser, if any (but
subject to paragraph (d) below), accept any bid for such loan or property
that is less than 90% of the appraised value of the related Mortgaged
Property (based on the appraisal used in determining the related Appraisal
Reduction). The Special Servicer, after notice to the Operating Adviser,
if any, shall determine no later than six months prior to the end of the
two-year period referred in Section 9.15 with respect to any REO Property
whether a sale of such REO Property pursuant to any bids being made with
respect thereto is in the best economic interests of the
Certificateholders as a whole. If the Special Servicer so determines in
accordance with the Servicing Standard after notice to the Operating
Adviser, if any, that such a sale would not be in the best interests of
the Certificateholders, the Special Servicer shall seek an extension of
such period in the manner described in Section 9.15.
In determining whether any bid received from an Interested
Person or whether the price to be paid by the Special Servicer or any
Affiliate thereof represents a fair price or market value for any
Defaulted Mortgage Loan or any REO Property, the Special Servicer may rely
conclusively on the opinion of the value of such REO Property by an
independent MAI-designated appraiser selected by the Trustee at the
expense of the Trust. In determining whether any bid constitutes a fair
price or market value for any Defaulted Mortgage Loan or any REO Property,
the Special Servicer shall take into account, among other factors, the
period and amount of any delinquency on the affected Defaulted Mortgage
Loan, the physical condition of the related Mortgaged Property or such REO
Property, the state of the local economy and the Trust's obligation to
dispose of any REO Property within the two-year period specified in
Section 9.15.
(b) Subject to the REMIC Provisions, the Special Servicer
shall act on behalf of the Trust in negotiating and taking any other
action necessary or appropriate in connection with the sale of any
Defaulted Mortgage Loan or REO Property, including the collection of all
amounts payable in connection therewith. Any sale of a Defaulted Mortgage
Loan or REO Property shall be without recourse to, or representation or
warranty by, the Trustee, the Paying Agent, the Fiscal Agent, the
Depositor, the Special Servicer, the Servicer, or the Trust.
Notwithstanding the foregoing, nothing herein shall limit the liability of
the Servicer, the Special Servicer or the Trustee to the Trust and the
Certificateholders for failure to perform its duties in accordance
herewith. None of the Special Servicer, the Servicer, the Depositor, the
Paying Agent, the Fiscal Agent or the Trustee shall have any liability to
the Trust or any Certificateholder with respect to the price at which a
Defaulted Mortgage Loan is sold if the sale is consummated in accordance
with the terms of this Agreement.
(c) The proceeds of any sale after deduction of the expenses
of such sale incurred in connection therewith shall be deposited within
one Business Day in the Certificate Account.
(d) Notwithstanding anything herein to the contrary, the
Special Servicer shall not be required to take or refrain from taking any
action pursuant to instructions from the Operating Adviser that would
cause it to violate applicable law or any term or provision of this
Agreement, including the REMIC Provisions and the Servicing Standard.
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SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates
of the then Controlling Class may elect the operating adviser (the
"Operating Adviser"). The Operating Adviser shall be elected for the
purpose of receiving reports and information from the Special Servicer in
respect of the Specially Serviced Mortgage Loans.
(b) An election of an Operating Adviser also shall be held
upon the resignation or removal of the Person acting as Operating Adviser.
Notice of the meeting of the Holders of the Controlling Class shall be
mailed or delivered to each Holder by the Paying Agent, at the direction
of the Trustee not less than 10 nor more than 60 days prior to the
meeting. The notice shall state the place and the time of the meeting,
which may be held by telephone. A majority of Certificate Balance of the
Certificates of the then Controlling Class, present in person or
represented by proxy, shall constitute a quorum for the nomination of an
Operating Adviser. At the meeting, each Holder shall be entitled to
nominate one Person to act as Operating Adviser. The Trustee shall cause
the election of the Operating Adviser to be held as soon thereafter as is
reasonably practicable.
(c) Each Holder of the Certificates of the Controlling Class
shall be entitled to vote in each election of the Operating Adviser. The
voting in each election of the Operating Adviser shall be in writing
mailed, telecopied, delivered or sent by courier and actually received by
the Paying Agent on or prior to the date of such election. Immediately
upon receipt by the Paying Agent of votes (which have not been rescinded)
from the Holders of Certificates representing more than 50% of the
Certificate Balance of the Certificates of the then Controlling Class
which are cast for a single Person, such Person shall be, upon such
Person's acceptance, the Operating Adviser. The Paying Agent shall
promptly forward the votes to the Trustee who will establish the identity
of the Operating Adviser. Until an Operating Adviser is elected or in the
event that an Operating Adviser shall have resigned or been removed and a
successor Operating Adviser shall not have been elected, there shall be no
Operating Adviser (and any delivery, consent, consultation or similar
requirements herein regarding the Operating Adviser will be inapplicable
until a successor Operating Adviser is elected).
(d) The Operating Adviser may be removed at any time by the
written vote, copies of which must be delivered to the Trustee, of more
than 50% of the Certificate Balance of the Holders of the Certificates of
the then Controlling Class.
(e) The Trustee shall act as judge of each election and,
absent manifest error, the determination of the results of any election by
the Trustee shall be conclusive. Notwithstanding any other provisions of
this Section 9.37, the Trustee may make such reasonable regulations as it
may deem advisable for any election.
(f) Notwithstanding any provision of this Section 9.37 or any
other provision of this Agreement to the contrary, at any time that the
Special Servicer has been elected as Operating Adviser or no Operating
Adviser has been elected, (i) the Special Servicer shall not be required
to deliver notices or information to, or obtain the consent or approval
of, the Operating
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Adviser and (ii) to the extent any Person other than the Special Servicer
is otherwise required hereunder to provide notices or information to, or
obtain the consent or approval of, the Operating Adviser, such Person
shall be required to provide such notices or information to, or obtain the
consent or approval of, the Special Servicer.
(g) GMAC Commercial Mortgage Corporation is the initial
Operating Adviser.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The
Operating Adviser shall have no liability to the Trust or the
Certificateholders for any action taken, or for refraining from the taking
of any action, in good faith and using reasonable business judgment
pursuant to this Agreement, or using reasonable business judgment. By its
acceptance of a Certificate, each Certificateholder (and Certificate
Owner) confirms its understanding that the Operating Adviser may take
actions that favor the interests of one or more Classes of the
Certificates over other Classes of the Certificates and that the Operating
Adviser may have special relationships and interests that conflict with
those of Holders of some Classes of the Certificates and each
Certificateholder (and Certificate Owner) agrees to take no action against
the Operating Adviser based upon such special relationship or conflict.
SECTION 9.39 DUTIES OF OPERATING ADVISER.
(a) The Operating Adviser may advise, and receive notice from,
the Special Servicer, but is not required to do so on any of the following
actions:
(i) any foreclosure upon or comparable conversion (which
may include acquisition of an REO Property) of the ownership of properties
securing such of the Specially Serviced Mortgage Loans as come into and
continue in default;
(ii) any modification of a Money Term of a Mortgage Loan
other than a modification consisting of the extension of the original
Maturity Date of a Mortgage Loan for two years or less;
(iii) any proposed sale of a Defaulted Mortgage Loan
(other than upon termination of the Trust pursuant to Article X);
(iv) any determination to bring an REO Property into
compliance with Environmental Laws; and
(v) any acceptance of substitute or additional
collateral for a Mortgage Loan.
In addition, the Operating Adviser may direct the Trustee to
remove the Special Servicer at any time upon the appointment and
acceptance of such appointment by a successor to the Special Servicer
appointed by the Operating Adviser; provided that, prior to the
effectiveness of any such appointment, the Trustee shall have received (A)
Rating Agency Confirmation from each Rating Agency and (B) a
Nondisqualification Opinion (which shall not be an expense of the Trustee
or the Trust).
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(b) The Operating Adviser and any Holder or Certificate Owner
of a Class G, Class H, Class I, Class J, Class K, Class L or Class M
Certificate shall be entitled to receive, upon written request made to the
Trustee, Servicer or Special Servicer (as appropriate) accompanied by a
Report Certification, a copy of any notice or report required to be
prepared or delivered by such party (whether prepared and delivered upon
request or otherwise) pursuant to this Agreement. Any such party from whom
such a report or notice is requested will be entitled to make delivery
thereof contingent upon the payment by the requesting party of the
reasonable cost of copying and delivering such notice or report to such
requesting person.
ARTICLE X
PURCHASE AND
TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR
LIQUIDATION OF ALL MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee and
Paying Agent created hereby (other than the obligation of the Paying
Agent, to make payments to the Class R-I Certificateholders, the Class
R-II Certificateholders and REMIC III Certificateholders as set forth in
Section 10.2 and other than the obligations in the nature of information
or tax reporting) shall terminate on the earliest of (i) the later of (A)
the final payment or other liquidation of the last Mortgage Loan remaining
in the Trust and (B) the disposition of all REO Property or (ii) the sale
of the property held by the Trust in accordance with Section 10.1(b) or
(iii) the termination of the Trust pursuant to Section 10.1(c) below;
provided that in no event shall the Trust created hereby continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to the Court of St. Xxxxx, living on the date hereof.
(b) The Servicer shall give the Trustee and Paying Agent
notice of the date when the Aggregate Certificate Balance of the
Certificates, after giving effect to distributions of principal made on
the next Distribution Date, is less than or equal to one percent (1%) of
the initial Aggregate Certificate Balance of the Certificates as of the
Cut-Off Date. The Trustee shall promptly forward such notice to the
Depositor, the Servicer, the Special Servicer, the Controlling Class, the
Operating Adviser and the Holders of the Class R-I Certificates, who in
such priority (and in the case of the Class R-I Certificateholders, a
majority of the Class R-I Certificateholders), may purchase, in whole
only, the Mortgage Loans and any other property, if any, remaining in the
Trust. If any party desires to exercise such option, it will notify the
Trustee who will notify any party with a prior right to exercise such
option. If any party that has been provided notice by the Trustee notifies
the Trustee within ten Business Days after receiving notice of the
proposed purchase that it wishes to purchase the assets of the Trust, then
such party (or, in the event that more than one of such parties notifies
the Trustee that it wishes to purchase the assets of the Trust, the party
with the first right to purchase the assets of the Trust) may purchase the
assets of the Trust in accordance with this Agreement. Upon the Paying
Agent's receipt of the Termination Price set forth below, the Trustee
shall promptly release or cause to be released to the Servicer for the
benefit of the Depositor, the Holder of the majority of the Class
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R-I Certificates, the Special Servicer or the Servicer, as the case may
be, the Mortgage Files pertaining to the Mortgage Loans. The "Termination
Price" shall equal 100% of the aggregate Principal Balances of the
Mortgage Loans (other than Mortgage Loans as to which a Final Recovery
Determination has been made) on the day of such purchase plus accrued and
unpaid interest thereon at the applicable Mortgage Rates (or Mortgage
Rates less the Servicing Fee Rate, if the Servicer is the Purchaser), with
respect to the Mortgage Loans to the Due Date for each Mortgage Loan
ending in the Collection Period with respect to which such purchase
occurs, plus unreimbursed Advances and interest on such unreimbursed
Advances at the Advance Rate, plus the fair market value of any other
property remaining in REMIC I. As a condition to the purchase of the Trust
pursuant to this Section 10.1(b), the Depositor, the Holder of the
majority of the Class R-I Certificates, the Special Servicer or the
Servicer, as the case may be, must deliver to the Trustee an Opinion of
Counsel, which shall be at the expense of the Depositor, such Holders, the
Special Servicer or the Servicer, as the case may be, stating that such
termination will be a "qualified liquidation" under section 860F(a)(4) of
the Code. Such purchase shall be made in accordance with Section 10.3.
(c) If at any time the Holders of the Class R-I Certificates
own 100% of the REMIC I Interests such Holders may terminate REMIC I
(which will in turn result in the termination of REMIC II and REMIC III)
upon (i) the delivery to the Trustee and the Depositor of an Opinion of
Counsel (which opinion shall be at the expense of such Holders) stating
that such termination will be a "qualified liquidation" of each REMIC
under Section 860F of the Code, and (ii) the payment of any and all costs
associated with such termination. Such termination shall be made in
accordance with Section 10.3.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of
Section 10.1, specifying the Distribution Date upon which the final
distribution shall be made, shall be given promptly by the Trustee by
first class mail to the Paying Agent, the Rating Agencies, the Class R-I
and REMIC III Certificateholders mailed no later than ten days prior to
the date of such termination. Such notice shall specify (A) the
Distribution Date upon which final distribution on the Class R-I, Class
R-II and REMIC III Certificates will be made, and upon presentation and
surrender of the Class R-I, Class R-II and REMIC III Certificates at the
office or agency of the Certificate Registrar therein specified, and (B)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distribution being made only upon presentation and surrender
of the Class R-I, Class R-II, and REMIC III Certificates at the office or
agency of the Certificate Registrar therein specified. The Trustee shall
give such notice to the Depositor and the Certificate Registrar at the
time such notice is given to Holders of the Class R-I, Class R-II and
REMIC III Certificates. Upon any such termination, the duties of the
Certificate Registrar with respect to the Class R-I, Class R-II and REMIC
III Certificates shall terminate and the Trustee shall terminate, or
request the Servicer and Paying Agent to terminate, the Certificate
Account and the Distribution Account and any other account or fund
maintained with respect to the Certificates, subject to the Paying Agent's
obligation hereunder to hold all amounts payable to the Class R-I, Class
R-II and REMIC III Certificateholders in trust without interest pending
such payment.
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(b) In the event that all of the Holders do not surrender
their certificates evidencing the Class R-I, Class R-II and REMIC III
Certificates for cancellation within three months after the time specified
in the above-mentioned written notice, the Certificate Registrar shall
give a second written notice to the remaining Class R-I, Class R-II and
REMIC III Certificateholders to surrender their certificates evidencing
the Class R-I, Class R-II and REMIC III Certificates for cancellation and
receive the final distribution with respect thereto. If within one year
after the second notice any Class R-I, Class R-II and REMIC III
Certificates shall not have been surrendered for cancellation, the
Certificate Registrar may take appropriate steps to contact the remaining
Class R-I, Class R-II and REMIC III Certificateholders concerning
surrender of such certificates, and the cost thereof shall be paid out of
the amounts distributable to such Holders. If within two years after the
second notice any such Class R-I, Class R-II and REMIC III Certificates
shall not have been surrendered for cancellation, the Paying Agent shall,
subject to applicable state law relating to escheatment, hold all amounts
distributable to such Holders for the benefit of such Holders. No interest
shall accrue on any amount held by the Trustee and not distributed to a
Class R-I, Class R-II and REMIC III Certificateholders due to such
Certificateholder's failure to surrender its Certificate(s) for payment of
the final distribution thereon in accordance with this Section. Any money
held by the Paying Agent pending distribution under this Section 10.2
after 90 days after the adoption of a plan of complete liquidation shall
be deemed for tax purposes to have been distributed from the REMICs and
shall be beneficially owned by the related Holder.
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC shall be terminated in accordance
with the following additional requirements, unless at the request of the
Servicer or the Class R-I Certificateholders, as the case may be, the
Trustee seeks, and the Trustee and the Paying Agent subsequently receive
an Opinion of Counsel (at the expense of the Servicer or the Class R-I
Certificateholders, as the case may be), addressed to the Depositor, the
Trustee and the Paying Agent to the effect that the failure of the Trust
to comply with the requirements of this Section 10.3 will not (i) result
in the imposition of taxes on "prohibited transactions" on any REMIC under
the REMIC Provisions or (ii) cause any REMIC Pool to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of
the final payment on the REMIC III Certificates the Servicer shall prepare
and the Trustee on behalf of the REMIC I Interests, REMIC II or REMIC III
shall adopt a plan of complete liquidation of the REMIC I Pool, meeting
the requirements of a qualified liquidation under the REMIC Provisions,
which plan shall be signed by the Trustee; provided that the Trustee shall
have no obligation to determine the accuracy or adequacy of such plan of
liquidation other than that such plan of liquidation meets the
requirements outlined in Sections 10.1, 10.2 and 10.3;
(ii) At or after the time of adoption of such a plan of
complete liquidation and at or prior to the time of making of the final
payment on the REMIC III Certificates, the Trustee shall sell all of the
assets of the Trust for cash at the Termination Price; provided that if
the Holders of the Class R-I Certificates are purchasing the assets of the
Trust,
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the amount to be paid by such Holders may be paid net of the amount to be
paid to such Holders as final distributions on any Certificates held by
such Holders;
(iii) At the time of the making of the final payment on
the Certificates, the Paying Agent shall distribute or credit, or cause to
be distributed or credited, (A) to the Holders of the Class R-I
Certificates all assets of REMIC I remaining after such final payment of
the REMIC Interests, (B) to the Holders of the Class R-II Certificates all
remaining assets of REMIC II and (C) to the Holders of the Class R-III
Certificates all remaining assets of REMIC III (in each case other than
cash retained to meet claims), and the Trust shall terminate at that time;
and
(iv) In no event may the final payment on the REMIC I
Regular Interests, REMIC II Regular Interests or REMIC Regular
Certificates or the final distribution or credit to the Holders of the
Residual Certificates, respectively, be made after the 89th day from the
date on which the plan of complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II or Class
R-III Certificates, respectively, the Holders thereof hereby (i) authorize
the Trustee to take such action as may be necessary to adopt a plan of
complete liquidation of the REMIC Pool and (ii) agree to take such other
action as may be necessary to adopt a plan of complete liquidation of the
Trust upon the written request of the Depositor, which authorization shall
be binding upon all successor Class R-I, Class R-II and Class R-III
Certificateholders, respectively.
(c) On the final federal income tax return for each REMIC
Pool, the Paying Agent shall attach a statement specifying the date of the
adoption of the plan of liquidation.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
The provisions of this Article XI shall apply to each of the
REMIC I Regular Interests, REMIC II Regular Interests, REMIC Regular
Certificateholders and Residual Certificateholders to the extent
appropriate.
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting
or take any action or proceeding in any court for a partition or winding
up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder,
shall have any right to vote or in any manner otherwise control the
Servicer or operation and management of the Trust, or the obligations of
the parties hereto, nor shall anything herein set forth, or contained in
the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members
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of an association, nor shall any Certificateholder be under any liability
to any third person by reason of any action taken by the parties to this
Agreement pursuant to any provision hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless
the Holders of Certificates evidencing not less than 50% of the Aggregate
Principal Amount of the Certificates then outstanding shall have made
written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the cost,
expenses and liabilities to be incurred therein or thereby, and the
Trustee, for sixty days after its receipt of such notice, request and
offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding and no direction inconsistent with such written
request has been given the Trustee during such sixty-day period by such
Certificateholders; it being understood and intended, and being expressly
covenanted by each Certificateholder with every other Certificateholder
and the Trustee, that no one or more Holders of Certificates shall have
any right in any manner whatever by virtue or by availing of any provision
of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any
right under this Agreement, except in the manner herein provided and for
the benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section, each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee
and the Paying Agent, within three Business Days after receipt by the
Certificate Registrar of a request by the Trustee or Paying Agent, as the
case may be, in writing, a list, in such form as the Trustee or Paying
Agent, as the case may be, may reasonably require, of the names and
addresses of the Certificateholders of each Class as of the most recent
Record Date.
(b) If the Depositor, the Operating Adviser, the Special
Servicer, the Servicer, the Paying Agent, or three or more Holders
(hereinafter referred to as "applicants," with a single Person which
(together with its Affiliates) is the Holder of more than one Class of
Certificates being viewed as a single "applicant" for these purposes)
apply in writing to the Trustee, and such application states that the
applicants desire to communicate with other Holders with respect to their
rights under this Agreement or under the Certificates and is accompanied
by a copy of the communication which such applicants propose to transmit,
then the Trustee shall, within six Business Days after the receipt of such
application (and subject to the Certificate Registrar's compliance with
its obligations under clause (a) above, if applicable), send, at such
Person's expense, the written communication proffered by the applicants to
all Certificateholders at their addresses as they appear in the
Certificate Register.
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(c) Every Holder, by receiving and holding a Certificate,
agrees with the Depositor, the Certificate Registrar, the Paying Agent,
the Servicer and the Trustee that neither the Depositor, the Certificate
Registrar, the Paying Agent, the Servicer nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Depositor and Paying Agent. Such
instrument or instruments (as the action embodies therein and evidenced
thereby) are herein sometimes referred to as an "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agents shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Trustee,
the Depositor and Paying Agent, if made in the manner provided in this
Section. The Trustee agrees to promptly notify the Depositor of any such
instrument or instruments received by it, and to promptly forward copies
of the same.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of
such execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to such notary
public or other officer the execution thereof. Whenever such execution is
by an officer of a corporation or a member of a partnership on behalf of
such corporation or partnership, such certificate or affidavit shall also
constitute sufficient proof of such officer's or member's authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the individual executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any
notation of ownership or other writing thereon made by anyone other than
the Trustee) shall be proved by the Certificate Register, and neither the
Trustee nor the Depositor nor the Paying Agent shall be affected by any
notice to the contrary.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Certificate shall
bind every future Holder of the same Certificate and the Holder of every
Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, omitted
or suffered to be done by the Trustee, the Paying Agent or the Depositor
in reliance thereon, whether or not notation of such action is made upon
such Certificate.
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ARTICLE XII
REMIC ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC
Pool.
SECTION 12.1 REMIC ADMINISTRATION.
(a) An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the Mortgage Loans, such amounts
as shall from time to time be held in the Certificate Account and the
Distribution Account, the Insurance Policies and any REO Properties as a
REMIC under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in
which the REMIC I Interests are issued. For purposes of such election, the
REMIC I Regular Interests shall each be designated as a separate class of
"regular interests" in the REMIC I and the Class R-I Certificates shall be
designated as the sole class of "residual interests" in the REMIC I.
Neither the Trustee nor the Paying Agent shall permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in any of the
REMICs other than the REMIC I, REMIC II and REMIC III Regular Interests
and the Residual Certificates.
An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a
REMIC under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in
which the REMIC II Interest is issued. For the purposes of such election,
the REMIC II Regular Interests shall be designated as the "regular
interests" in REMIC II and the Class R-II Certificates shall be designated
as the sole class of the "residual interests" in REMIC II.
An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as
a REMIC under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in
which the REMIC III Certificates are issued. For purposes of such
election, the Class X-0, Xxxxx X-0, Class X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class I, Class J, Class K and Class L
Certificates, together with the REMIC III Class M Regular Interest and the
REMIC III Excess Interest, shall be designated as the "regular interests"
in REMIC III and the Class R-III Certificates shall be designated as the
sole class of "residual interests" in REMIC III.
(b) The Closing Date is hereby designated as the "Startup Day"
of each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Paying Agent shall pay all routine tax related
expenses (not including any taxes, however denominated, including any
additions to tax, penalties and interest) of each REMIC Pool, excluding
any professional fees or extraordinary expenses related to audits or any
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administrative or judicial proceedings with respect to each REMIC Pool
that involve the Internal Revenue Service or state tax authorities.
(d) The Paying Agent shall cause to be prepared, signed, and
timely filed with the Internal Revenue Service, on behalf of each REMIC
Pool, an application for a taxpayer identification number for such REMIC
Pool on Internal Revenue Service Form SS-4. The Paying Agent, upon receipt
from the Internal Revenue Service of the Notice of Taxpayer Identification
Number Assigned, shall promptly forward a copy of such notice to the
Depositor and the Servicer. The Paying Agent shall prepare and file Form
8811 on behalf of each REMIC Pool and shall designate an appropriate
Person to respond to inquiries by or on behalf of Certificateholders for
original issue discount and related information in accordance with
applicable provisions of the Code.
(e) The Paying Agent shall prepare and file all of each REMIC
Pool's federal and state income or franchise tax and information returns
as such REMIC Pool's direct representative; the expenses of preparing such
returns shall be borne by the Paying Agent and the cost of filing such
returns shall be borne by the applicable REMIC Pool, except that if
additional state tax returns are required to be filed in more than three
states, the Paying Agent shall be entitled, with respect to any such
additional filings, to (i) be paid a reasonable fee and (ii) receive its
reasonable costs and expenses, both as amounts reimbursable pursuant to
Section 5.2(a)(vi) hereof. The Depositor, the Servicer and the Special
Servicer shall provide on a timely basis to the Paying Agent or its
designee such information with respect to the Trust or any REMIC Pool as
is in its possession, which the Depositor or the Servicer and the Special
Servicer has received or prepared by virtue of its role as Depositor or
Servicer and the Special Servicer hereunder and reasonably requested by
the Paying Agent to enable it to perform its obligations under this
subsection, and the Paying Agent shall be entitled to conclusively rely on
such information in the performance of its obligations hereunder. The
Depositor shall indemnify the Trust and the Paying Agent and the Trustee
and Fiscal Agent for any liability or assessment against any of them or
cost or expense (including attorneys' fees) incurred by them resulting
from any error resulting from bad faith, negligence, or willful
malfeasance of the Depositor in providing any information for which the
Depositor is responsible for preparing. The Servicer and the Special
Servicer shall indemnify the Paying Agent, the Trustee, the Fiscal Agent
and the Depositor for any liability or assessment against the Paying
Agent, the Trustee, the Fiscal Agent, the Depositor or any REMIC Pool and
any expenses incurred in connection with such liability or assessment
(including attorney's fees) resulting from any error in any of such tax or
information returns resulting from errors in the information provided by
the Servicer or the Special Servicer, as the case may, be or caused by the
negligence, willful misconduct or bad faith of the Servicer or the Special
Servicer, as the case may be. The Paying Agent shall indemnify the
Servicer, the Special Servicer, the Trustee, the Fiscal Agent, the
Depositor or any REMIC Pool for any expense incurred by the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Depositor and any
REMIC Pool resulting from any error in any of such tax or information
returns resulting from errors in the preparation of such returns caused by
the negligence, willful misconduct or bad faith of the Paying Agent. Each
indemnified party shall immediately notify the indemnifying party or
parties of the existence of a claim for indemnification under this Section
12.1(e), and provide the indemnifying party or parties, at the expense of
such indemnifying party or parties, an opportunity to contest the tax or
assessment or expense giving rise to such claim, provided that
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the failure to give such notification rights shall not affect the
indemnification rights in favor of any REMIC Pool under this Section
12.1(e). Any such indemnification shall survive the resignation or
termination of the Servicer, the Special Servicer, the Paying Agent, the
Trustee, and the Fiscal Agent or the termination of this Agreement.
(f) The Paying Agent shall perform on behalf of each REMIC all
reporting and other tax compliance duties that are the responsibility of
such REMIC Pool under the Code, REMIC Provisions, or other compliance
guidance issued by the Internal Revenue Service or any state or local
taxing authority. Among its other duties, the Paying Agent shall provide
(i) to the Internal Revenue Service or other Persons (including, but not
limited to, the transferor of a Residual Certificate, to a Disqualified
Organization or to an agent that has acquired a Residual Certificate on
behalf of a Disqualified Organization) such information as is necessary
for the application of any tax relating to the transfer of a Residual
Certificate to any Disqualified Organization and (ii) to the
Certificateholders such information or reports as are required by the Code
or REMIC Provisions.
(g) The Paying Agent shall forward to the Depositor copies of
quarterly and annual REMIC tax returns and Form 1099 information returns
and such other information within the control of the Paying Agent as the
Depositor may reasonably request in writing. Moreover, the Paying Agent
shall forward to each Certificateholder such forms and furnish such
information within its control as are required by the Code to be furnished
to them, shall prepare and file with the appropriate state authorities as
may to the actual knowledge of a Responsible Officer of the Paying Agent
be required by applicable law and shall prepare and disseminate to
Certificateholders Forms 1099 (or otherwise furnish information within the
control of the Paying Agent) to the extent required by applicable law. The
Paying Agent will make available to any Certificateholder any tax related
information required to be made available to Certificateholders pursuant
to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in
Class R-I, Class R-II and Class R-III Certificates, respectively (or of
the greatest percentage of such Class R-I, Class R-II and Class R-III
Certificates if no Holder holds more than 50% thereof), shall be the
applicable REMIC's Tax Matters Person. The duties of the Tax Matters
Person for each of the REMIC Pools are hereby delegated to the Paying
Agent, and each Residual Certificateholder, by acceptance of its Residual
Certificate, agrees, on behalf of itself and all successor holders of such
Residual Certificate, to such delegation to the Paying Agent as their
agent and attorney in fact. If the Code or applicable regulations
prohibits the Paying Agent from signing any applicable Internal Revenue
Service, court or other administrative documents or from acting as Tax
Matters Person (as an agent or otherwise), the Paying Agent shall take
whatever action is necessary for the signing of such documents and
designation of a Tax Matters Person, including the designation of such
Residual Certificateholder. The Paying Agent shall not be required to
expend or risk its own funds or otherwise incur any other financial
liability in the performance of its duties hereunder or in the exercise of
any of its rights or powers (except to the extent of the ordinary expenses
of performing its duties under this Agreement), if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
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(i) The Trustee, the Paying Agent, the Holders of the Residual
Certificates, the Servicer and the Special Servicer shall each exercise
reasonable care, to the extent within its control, and with respect to
each of the Trustee, the Paying Agent, the Servicer and the Special
Servicer, within the scope of its express duties, and shall each act in
accordance with this Agreement and the REMIC Provisions in order to create
and maintain the status of each REMIC Pool as a REMIC or, as appropriate,
adopt a plan of complete liquidation.
(j) The Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Fiscal Agent and the Holders of Residual Certificates shall
not take any action or fail to take any action or cause any REMIC Pool to
take any action or fail to take any action if any of such persons knows or
could, upon the exercise of reasonable diligence, know, that, under the
REMIC Provisions such action or failure, as the case may be, could (i)
endanger the status of any REMIC Pool as a REMIC or (ii) result in the
imposition of a tax upon any REMIC Pool (including but not limited to the
tax on prohibited transactions as defined in Code Section 860F(a)(2))
unless the Trustee and the Paying Agent have received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the
effect that the contemplated action will not endanger such status or
result in the imposition of such a tax. Any action required under this
section which would result in an unusual or unexpected expense shall be
undertaken at the expense of the party seeking the Trustee, the Paying
Agent or the Holders of the Residual Certificates to undertake such
action.
(k) In the event that any tax is imposed on REMIC I, REMIC II
or REMIC III, including, without limitation, "prohibited transactions"
taxes as defined in Section 860F(a)(2) of the Code, any tax on "net income
from foreclosure property" as defined in Section 860G(c) of the Code, any
taxes on contributions to REMIC I, REMIC II or REMIC III after the Startup
Day pursuant to Section 860G(d) of the Code, and any other tax imposed by
the Code or any applicable provisions of state or local tax laws (other
than any tax permitted to be incurred by the Special Servicer pursuant to
Section 9.14(e)), such tax, together with all incidental costs and
expenses (including, without limitation, penalties and reasonable
attorneys' fees), shall be charged to and paid by: (i) the Paying Agent,
if such tax arises out of or results from a breach of any of its
obligations under this Agreement; (ii) the Special Servicer, if such tax
arises out of or results from a breach by the Special Servicer of any of
its obligations under this Agreement; (iii) the Servicer, if such tax
arises out or results from a breach by the Servicer of any of its
obligations under this Agreement; (iv) the Trustee, if such tax arises out
of or results from a breach of the obligations of the Trustee under this
Agreement; or (v) the Trust in all other instances. Any tax permitted to
be incurred by the Special Servicer pursuant to Section 9.14(e) shall be
charged to and paid by the Trust from the net income generated on the
related REO Property. Any such amounts payable by the Trust in respect of
taxes shall be paid by the Paying Agent out of amounts on deposit in the
Distribution Account.
(l) The Paying Agent and, to the extent that records are
maintained by the Servicer or the Special Servicer in the normal course of
its business, the Servicer and the Special Servicer shall, for federal
income tax purposes, maintain books and records with respect to each REMIC
Pool on a calendar year and on an accrual basis. Notwithstanding anything
to the contrary contained herein, except to the extent provided otherwise
in the Mortgage Loans or in the Mortgages, all amounts collected on the
Mortgage Loans shall, for federal income tax
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purposes, be allocated first to interest due and payable on the Mortgage
Loans (including interest on overdue interest, other than additional
interest at a penalty rate payable following a default). The books and
records must be sufficient concerning the nature and amount of each REMIC
Pool's investments to show that such REMIC Pool has complied with the
REMIC Provisions.
(m) Neither the Trustee, the Paying Agent, the Servicer nor
the Special Servicer shall enter into any arrangement by which any REMIC
Pool will receive a fee or other compensation for services.
(n) In order to enable the Paying Agent to perform its duties
as set forth herein, the Depositor shall provide, or cause to be provided,
to the Paying Agent within ten (10) days after the Closing Date all
information or data that the Paying Agent reasonably determines to be
relevant for tax purposes on the valuations and offering prices of the
Certificates, including, without limitation, the yield, prepayment
assumption, issue prices and projected cash flows of the Senior
Certificates, Subordinate Certificates and Residual Certificates, as
applicable, and the projected cash flows of the Mortgage Loans.
Thereafter, the Depositor shall provide to the Paying Agent or its
designee, promptly upon request therefor, any such additional information
or data within the Depositor's possession or knowledge that the Paying
Agent may, from time to time, reasonably request in order to enable the
Paying Agent to perform its duties as set forth herein. The Paying Agent
is hereby directed to use any and all such information or data provided by
the Depositor in the preparation of all federal and state income or
franchise tax and information returns and reports for each REMIC Pool to
Certificateholders as required herein. The Depositor hereby indemnifies
the Trustee, the Fiscal Agent, the Paying Agent and each REMIC Pool for
any losses, liabilities, damages, claims, expenses (including attorneys'
fees) or assessments against the Trustee, the Fiscal Agent, the Paying
Agent and each REMIC Pool arising from any errors or miscalculations of
the Paying Agent pursuant to this Section that result from any failure of
the Depositor to provide, or to cause to be provided, accurate information
or data to the Paying Agent (but not resulting from the methodology
employed by the Paying Agent) on a timely basis and such indemnification
shall survive the termination of this Agreement and the termination or
resignation of the Paying Agent, the Trustee and the Fiscal Agent.
The Paying Agent agrees that all such information or data so
obtained by it are to be regarded as confidential information and agrees
that it shall use its best reasonable efforts to retain in confidence, and
shall ensure that its officers, employees and representatives retain in
confidence, and shall not disclose, without the prior written consent of
the Depositor, any or all of such information or data, or make any use
whatsoever (other than for the purposes contemplated by this Agreement) of
any such information or data without the prior written consent of the
Depositor, unless such information is generally available to the public
(other than as a result of a breach of this Section 12.1(n)) or is
required by law or applicable regulations to be disclosed or is disclosed
(i) to independent auditors and accountants, counsel and other
professional advisers of the Paying Agent and its parent, or (ii) in
connection with its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Servicer
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of
REMIC I as "qualified mortgages" as defined in Section
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860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(p) 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 REMIC would be reduced to zero is the Final Rated
Distribution Date.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither
the Trustee nor the Paying Agent, the Servicer nor the Special Servicer
shall permit the sale, disposition or substitution of any of the Mortgage
Loans (except in a disposition pursuant to (i) the foreclosure or default
of a Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool,
(iii) the termination of any REMIC Pool in a "qualified liquidation" as
defined in Section 860F(a)(4) of the Code, or (iv) a substitution pursuant
to Article II hereof), nor acquire any assets for the Trust, except as
provided in Article II hereof, nor sell or dispose of any investments in
the Certificate Account or Distribution Account for gain, nor accept any
contributions to any REMIC Pool (other than a cash contribution during the
3-month period beginning on the Startup Day), unless it has received an
Opinion of Counsel (at the expense of the Person requesting such action)
to the effect that such disposition, acquisition, substitution, or
acceptance will not (A) affect adversely the status of any REMIC Pool as a
REMIC or of the REMIC Certificates, other than the Residual Certificates,
as the regular interests therein, (B) affect the distribution of interest
or principal on the Certificates, (C) result in the encumbrance of the
assets transferred or assigned to any REMIC Pool (except pursuant to the
provisions of this Agreement) or (D) cause any REMIC Pool to be subject to
a tax on "prohibited transactions" or "prohibited contributions" or other
tax pursuant to the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding
anything to the contrary in this Agreement, neither the Trustee, the Paying
Agent, the Servicer nor the Special Servicer shall permit any modification of
any Money Term of a Mortgage Loan or a Specially Serviced Mortgage Loan unless
(i) the Trustee, the Paying Agent and the Servicer have received a
Nondisqualification Opinion or a ruling from the Internal Revenue Service (at
the expense of the party making the request that the Servicer or the Special
Servicer modify the Mortgage Loan or a Specially Serviced Mortgage Loan) to the
effect that such modification would not be treated as an exchange pursuant to
Section 1001 of the Code (or, if it would be so treated, would not be treated as
a "significant modification" for purposes of Treas. Reg. Sec. 1.860G-2(B) of the
Code) or (ii) such modification meets the requirements set forth in Sections
8.18 or 9.5.
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS
OF REMIC STATUS. In the event that any REMIC Pool fails to qualify as a
REMIC, loses its status as a REMIC, or incurs state or local taxes, or tax
as a result of a prohibited transaction or prohibited contribution subject
to taxation under the REMIC Provisions due to the negligent performance by
either the Trustee or the Paying Agent of its respective duties and
obligations set forth herein, the Trustee or the Paying Agent, as the case
may be, shall be liable to the REMIC Pools and the Holders of the Residual
Certificates for any and all losses, claims, damages, liabilities or
expenses ("Losses") resulting from such negligence and relating to the
Residual Certificates;
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provided, however, that the Paying Agent or the Trustee, as applicable,
shall not be liable for any such Losses attributable to the action or
inaction of the Servicer, the Special Servicer, the Fiscal Agent, the
Trustee (with respect to the Paying Agent), the Paying Agent (with respect
to the Trustee), the Depositor or the Holders of such Residual
Certificates nor for any such Losses resulting from any actions or failure
to act based upon reliance on an Opinion of Counsel or from misinformation
provided by the Servicer, the Special Servicer, the Trustee (with respect
to the Paying Agent), the Paying Agent (with respect to the Trustee), the
Fiscal Agent, the Depositor or such Holders of the Residual Certificates
on which the Trustee or the Paying Agent, as the case may be, has relied.
The foregoing shall not be deemed to limit or restrict the rights and
remedies of the Holders of the Residual Certificates now or hereafter
existing at law or in equity. The Trustee or the Paying Agent, as the case
may be, shall be entitled to intervene in any litigation in connection
with the foregoing and to maintain control over its defense.
SECTION 12.5 GRANTOR TRUST REPORTING. The parties intend that
the portions of the Trust consisting of Excess Interest and the Excess
Interest Sub-account shall constitute, and that the affairs of the Trust
(exclusive of the REMIC Pools) shall be conducted so as to qualify such
portions as, a "grantor trust" under the Code, and the provisions hereof
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 M 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, information returns with respect to income relating
to their share of Excess Interest and, at the time or times and in the
manner required by the Code.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement contains the
entire agreement and understanding between the parties hereto with respect
to the subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or
implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the
terms hereof.
SECTION 13.3 AMENDMENT.
(a) This Agreement may be amended from time to time by the
parties hereto, without notice to or the consent of any of the Holders,
(i) to cure any ambiguity, (ii) to cause the provisions herein to conform
to or be consistent with or in furtherance of the statements made with
respect to the Certificates, the Trust or this Agreement in the Private
Placement Memorandum and in the Preliminary Prospectus Supplement and
Final Prospectus Supplement, or to correct or supplement any provision
herein which may be inconsistent with any other
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provisions herein, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the status of each REMIC Pool as a
REMIC for the purposes of federal income tax law (or comparable provisions
of state income tax law), (iv) to make any other provisions with respect
to matters or questions arising under or with respect to this Agreement
not inconsistent with the provisions hereof, (v) to modify, add to or
eliminate the provisions of Article III relating to transfers of Residual
Certificates or (vi) any other amendment which does not adversely affect
in any material respect the interests of any Certificateholder (unless
such Certificateholder consents). No such amendment effected pursuant to
clause (i), (ii) or (iv) of the preceding sentence shall (A) adversely
affect in any material respect the interests of any Holder not consenting
thereto, and no amendment shall adversely affect the status of any REMIC
Pool as a REMIC without the consent of 100% of the Certificateholders or
(B) adversely affect the status of any REMIC Pool as a REMIC. Prior to
entering into any amendment without the consent of Holders pursuant to
this paragraph, the Trustee may require an Opinion of Counsel and a
Nondisqualification Opinion (in the case of clauses (i), (ii) and (iii),
at the expense of the Depositor, and otherwise at the expense of the party
requesting such amendment, except that if the Trustee requests such
amendment, such amendment shall be at the expense of the Depositor, if the
Depositor consents), to the effect that such amendment is permitted under
this paragraph. Any such amendment shall be deemed not to adversely affect
in any material economic respect any Holder if the Trustee receives
written confirmation from each Rating Agency that such amendment will not
cause such Rating Agency to reduce, qualify or withdraw the then current
rating assigned to any of the rated Certificates that were currently being
rated by the Rating Agencies (and any Opinion of Counsel requested by the
Trustee in connection with any such amendment may rely expressly on such
confirmation as the basis therefor). The placement of an "original issue
discount" legend on, or any change required to correct any such legend
previously placed on, a Certificate shall not be deemed an amendment to
this Agreement.
(b) This Agreement may also be amended from time to time by
the agreement of the parties hereto (without the consent of the
Certificateholders) and with delivery of a Rating Agency Confirmation by
each of the Rating Agencies; provided, however, that such amendment may
not effect any of the items set forth in clauses (i) through (iv) of the
proviso in paragraph (c) of this Section 13.3. The Trustee may request, at
its option, to receive a Nondisqualification Opinion and an Opinion of
Counsel that any amendment pursuant to this Section 13.3(b) is permitted
by this Agreement at the expense of the party requesting the amendment.
(c) This Agreement may also be amended from time to time by
the parties with the consent of the Holders of not less than 51% of the
Aggregate Certificate Balance of the Certificates then outstanding, for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders; provided that no such amendment may (i)
reduce in any manner the amount of, or delay the timing of the
distributions required to be made on any Certificate without the consent
of the Holder of such Certificate, (ii) reduce the aforesaid percentages
of Aggregate Certificate Percentage or Certificate Balance, the Holders of
which are required to consent to any such amendment without the consent of
all the Holders of each Class of Certificates affected thereby, (iii) no
such amendment shall eliminate the Servicer's, the Special Servicer's, the
Trustee's or the Fiscal Agent's obligation to Advance or alter the
Servicing Standard except as may be necessary or desirable to comply with
the REMIC Provisions or (iv) adversely affect the
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status of any REMIC Pool as a REMIC for federal income tax purposes (as
evidenced by a Nondisqualification Opinion) without the consent of 100% of
the Certificateholders (including the Class R-I, Class R-II and Class
R-III Certificateholders); provided, however, that no such Amendment may
modify Section 13.10 without delivery of a Rating Agency Confirmation from
each of the Rating Agencies The Trustee may request, at its option, to
receive a Nondisqualification Opinion and an Opinion of Counsel that any
amendment pursuant to this Section 13.3(c) is permitted by this Agreement
at the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment
shall be borne by the Depositor in the case the Trustee is the party
requesting such amendment or if pursuant to clauses (i), (ii) and (iii) of
Section 13.3(a). In all other cases, the costs and expenses shall be borne
by the party requesting the amendment.
(e) Promptly after the execution of any such amendment, the
Trustee shall furnish a copy of such amendment to each Holder, the
Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under
this Section 13.3 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Holders shall be in the
affirmative and in writing and shall be subject to such reasonable
regulations as the Trustee may prescribe.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK.
SECTION 13.5 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given
when received by (A) in the case of the Depositor, Bear Xxxxxxx Commercial
Mortgage Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx X. Xxxxxxx, with a copy to Xxxxxx Xxxxxxxxx, Esq.,
telecopy number: (000) 000-0000; (B) in the case of the Trustee and the
Fiscal Agent at the Corporate Trust Office at LaSalle Bank National
Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Asset-Backed Securities Trust Services Group-Bear
Xxxxxxx Commercial Mortgage Securities Inc., Series 2000-WF1; (C) in the
case of the Servicer, Xxxxx Fargo Bank, National Association, 000
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Portfolio Manager, with a copy to Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo
Bank, National Association, 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000; (D) in the case of the Special Servicer, GMAC Commercial Mortgage
Corporation, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx Bieber (with a copy to General Counsel at such address)
or (E) in the case of the Paying Agent at Norwest Bank Minnesota, National
Association, 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Services (CMBS)-Bear Xxxxxxx Commercial
Mortgage Securities
210
Inc., Series 2000-WF1; or as to each party such other address as may
hereafter be furnished by such party to the other parties in writing. Any
notice required or permitted to be mailed to a Holder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown
in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice.
SECTION 13.6 SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in
no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 13.7 INDULGENCES; NO WAIVERS. Neither the failure nor
any delay on the part of a party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any
other right, remedy, power or privilege, nor shall any waiver of any
right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with
respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION. The
headings contained in this Agreement are for convenience of reference only,
and shall not be used in the interpretation hereof.
SECTION 13.9 BENEFITS OF AGREEMENT. Nothing in this Agreement
or in the Certificates, express or implied, shall give to any Person,
other than the parties to this Agreement and their successors hereunder
and the Holders of the Certificates, any benefit or any legal or equitable
right, power, remedy or claim under this Agreement; provided that: (i) the
99-C1 Servicer shall be a third party beneficiary with respect to its
rights specified in Section 4.4(b) and Section 8.25(e); and (ii) the 99-C1
Special Servicer shall be a third party beneficiary with respect to its
rights specified in Section 9.24(d).
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES
(a) The Depositor shall give prompt notice to the Rating
Agencies, Special Servicer and the Operating Adviser of the occurrence of
any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section
13.3 hereof;
(ii) the Interim Certification and the Final
Certification required pursuant to Section 2.2 hereof;
211
(iii) notice of the repurchase of any Mortgage Loan
pursuant to Section 2.3(a) hereof;
(iv) any resignation of the Servicer, Special Servicer,
the Operating Adviser, the Paying Agent or the Trustee pursuant to this
Agreement;
(v) the appointment of any successor to the Servicer,
the Fiscal Agent, the Paying Agent, the Trustee, the Operating Adviser or
the Special Servicer pursuant to Section 7.7 or 7.14 hereof;
(vi) waiver of a due-on-sale clause as provided in
Section 8.7;
(vii) waiver of a prohibition on subordinate liens on
the Mortgaged Properties;
(viii) the making of a final payment pursuant to Section
10.3 hereof; and
(ix) a Servicing Transfer Event.
(b) All notices to the Rating Agencies shall be in writing and
sent by first class mail, telecopy or overnight courier, as follows:
If to DCR, to:
Duff & Xxxxxx Credit Rating Co.
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: CMBS Monitoring
Fax: (000) 000-0000
If to Fitch IBCA, to:
Fitch IBCA, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance
Fax: (000) 000-0000
If to any other Rating Agency, at such address as shall be
provided in writing to the Depositor by such Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii), the
successor trustee shall give prompt notice to the Rating Agencies of the
occurrence of any of the following events:
(i) the resignation or removal of the Trustee pursuant
to Section 7.6; or
(ii) the appointment of a successor trustee pursuant to
Section 7.7; or
212
(iii) the appointment of a successor Operating Adviser
pursuant to Section 9.37; or
(iv) the occurrence of an Event of Default.
(d) The Servicer shall deliver to the Rating Agencies, the
Depositor and the Special Servicer reports prepared pursuant to this
Agreement (including the reports described in Sections 8.12, 8.13 and 8.14
and the Special Servicer Reports in its possession prepared pursuant to
Section 9.32) and any other information as reasonably requested by the
Rating Agencies and the Depositor. The Paying Agent, the Trustee and the
Special Servicer shall deliver to the Rating Agencies and the Depositor
any information as reasonably requested by the Rating Agencies and
Depositor, as the case may be.
(e) Any notice or other document required to be delivered or
mailed by the Depositor, Servicer, Special Servicer, Paying Agent or
Trustee shall be given by such parties, respectively, on a reasonable best
efforts basis and only as a matter of courtesy and accommodation to the
Rating Agencies, unless otherwise specifically required herein, and such
parties, respectively, shall have no liability for failure to deliver any
such notice or document to the Rating Agencies.
SECTION 13.11 COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original,
and all of which together shall constitute one and the same instrument.
SECTION 13.12 INTENTION OF PARTIES It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans and related
rights and property to the Trustee, for the benefit of the
Certificateholders, by the Depositor as provided in Section 2.1 be, and be
construed as, an absolute sale of the Mortgage Loans and related property.
It is, further, not the intention of the parties that such conveyance be
deemed a pledge of the Mortgage Loans and related property by the
Depositor to the Trustee to secure a debt or other obligation of the
Depositor. However, in the event that, notwithstanding the intent of the
parties, the Mortgage Loans or any related property is held to be the
property of the Depositor, or if for any other reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans or any
related property, then this Agreement shall be deemed to be a security
agreement; and the conveyance provided for in Section 2.1 shall be deemed
to be a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the Depositor's
right, title, and interest, whether now owned or hereafter acquired, in
and to:
(i) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
property described in clauses (1)-(4) below: (1) the Mortgage Loans,
including the related Mortgage Notes, Mortgages, security
agreements, and title, hazard and other insurance policies
identified on the Mortgage Loan Schedule, including all Qualified
Substitute Mortgage Loans, all distributions with respect thereto
payable on and after the Cut-Off Date, and the Mortgage Files; (2)
the Distribution Account, all REO Accounts,
213
and the Certificate Account, including all property therein and all
income from the investment of funds therein (including any accrued
discount realized on liquidation of any investment purchased at a
discount); (3) the REMIC I Regular Interests and the REMIC II
Regular Interests; and (4) the Mortgage Loan Purchase Agreements;
(ii) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property, and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(iii) All cash and non-cash proceeds of the collateral
described in clauses (i) and (ii) above.
The possession by the Custodian (or, if there is no Custodian,
the Trustee) of the Mortgage Notes, the Mortgages and such other goods,
letters of credit, advices of credit, instruments, money, documents,
chattel paper or certificated securities shall be deemed to be possession
by the secured party or possession by a purchaser for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-115 and 9-305 thereof) as in
force in the relevant jurisdiction.
Notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, securities intermediaries, bailees or
agents of, or persons holding for, the Trustee, as applicable, for the
purpose of perfecting such security interest under applicable law.
The Depositor and, at the Depositor's direction, the Servicer
and the Trustee, shall, to the extent consistent with this Agreement, take
such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property
described above, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Servicer
shall file, at the expense of the Trust as an Additional Trust Expense,
all filings necessary to maintain the effectiveness of any original
filings necessary under the Uniform Commercial Code as in effect in any
jurisdiction to perfect the Trustee's security interest in such property,
including without limitation (i) continuation statements, and (ii) such
other statements as may be occasioned by any transfer of any interest of
the Servicer or the Depositor in such property. In connection herewith,
the Trustee shall have all of the rights and remedies of a secured party
and creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
SECTION 13.13 RECORDATION OF AGREEMENT This Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or all of the properties subject to the Mortgages are
214
situated, and in any other appropriate public recording office or
elsewhere. Such recordation, if any, shall be effected by the Servicer at
the expense of the Trust as an Additional Trust Expense, but only upon
direction of the Depositor accompanied by an Opinion of Counsel to the
effect that such recordation materially and beneficially affects the
interests of the Certificateholders of the Trust.
215
EXECUTION COPY
POOLING AND SERVICING AGREEMENT
IN WITNESS WHEREOF, the Depositor, the Servicer, the Special
Servicer, the Trustee, the Paying Agent, the Certificate Registrar, the
Authenticating Agent and the Fiscal Agent have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
BEAR XXXXXXX COMMERCIAL XXXXX FARGO BANK, NATIONAL
MORTGAGE SECURITIES INC., ASSOCIATION, as Servicer
as Depositor
By: /s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxxx Xxxxx
------------------------------ --------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx Name: Xxxx Xxxxx
Title: Vice President Title: Authorized Signatory
GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, as
as Special Servicer Trustee
By: /s/ Xxxxx Bieber By: /s/ Xxxxxxx Xxxx
------------------------------ --------------------------------
Name: Xxxxx Bieber Name: Xxxxxxx Xxxx
Title: Senior Vice President Title: Vice President
ABN AMRO BANK N.V., as Fiscal Agent
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Paying Agent,
Certificate Registrar and
By: /s/ Xxxxxxx Xxxxxx Authenticating Agent
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxx Xxxx
------------------------------
and Name: Xxxx Xxxx
Title: Vice President
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
STATE OF NEW YORK
) ss.:
COUNTY OF NEW YORK
On this _____th day of February, 2000, before me, a notary
public in and for said State, personally appeared _______________________,
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the within instrument as Vice
President on behalf of Bear Xxxxxxx Commercial Mortgage Securities Inc.,
and acknowledged to me that such corporation executed the within
instrument pursuant to its by-laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
==========================================================================
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
AS DEPOSITOR,
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS SERVICER,
AND
GMAC COMMERCIAL MORTGAGE CORPORATION,
AS SPECIAL SERVICER,
AND
LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE
AND
ABN AMRO BANK N.V.,
AS FISCAL AGENT
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
AS PAYING AGENT
-------------------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF FEBRUARY 1, 2000
-------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-WF1
==========================================================================
EXHIBITS
EXHIBIT A-1 [FORM OF CLASS A-1 CERTIFICATE].............................A-1-1
EXHIBIT A-2 [FORM OF CLASS A-2 CERTIFICATE].............................A-2-1
EXHIBIT A-3 [FORM OF CLASS X CERTIFICATE]...............................A-3-1
EXHIBIT A-4 [FORM OF CLASS B CERTIFICATE]...............................A-4-1
EXHIBIT A-5 [FORM OF CLASS C CERTIFICATE]...............................A-5-1
EXHIBIT A-6 [FORM OF CLASS D CERTIFICATE]...............................A-6-1
EXHIBIT A-7 [FORM OF CLASS E CERTIFICATE]...............................A-7-1
EXHIBIT A-8 [FORM OF CLASS F CERTIFICATE]...............................A-8-1
EXHIBIT A-9 [FORM OF CLASS G CERTIFICATE]...............................A-9-1
EXHIBIT A-10 [FORM OF CLASS H CERTIFICATE]..............................A-10-1
EXHIBIT A-11 [FORM OF CLASS I CERTIFICATE]..............................A-11-1
EXHIBIT A-12 [FORM OF CLASS J CERTIFICATE]..............................A-12-1
EXHIBIT A-13 [FORM OF CLASS K CERTIFICATE]..............................A-13-1
EXHIBIT A-14 [FORM OF CLASS L CERTIFICATE]..............................A-14-1
EXHIBIT A-15 [FORM OF CLASS M CERTIFICATE]..............................A-15-1
EXHIBIT A-16 [FORM OF CLASS R-I CERTIFICATE]............................A-16-1
EXHIBIT A-17 [FORM OF CLASS R-II CERTIFICATE]...........................A-17-1
EXHIBIT A-18 [FORM OF CLASS R-III CERTIFICATE]..........................A-18-1
EXHIBIT B-1 FORM OF INITIAL CERTIFICATION OF TRUSTEE....................B-1-1
EXHIBIT B-2 FORM OF FINAL CERTIFICATION OF TRUSTEE......................B-2-1
EXHIBIT C FORM OF REQUEST FOR RELEASE...................................C-1
EXHIBIT D-1 FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES............................D-1-1
EXHIBIT D-2A FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
DEFINITIVE PRIVATELY OFFERED CERTIFICATES...............D-2A-1
EXHIBIT D-2B FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
DEFINITIVE PRIVATELY OFFERED CERTIFICATES...............D-2B-1
EXHIBIT D-3A FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
INTERESTS IN BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES...D-3A-1
EXHIBIT E-1A FORM OF TRANSFER AFFIDAVIT AND AGREEMENT FOR TRANSFERS
OF REMIC RESIDUAL CERTIFICATES............................E-1-1
-i-
EXHIBITS
(Cont'd)
EXHIBIT E-1B FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF REMIC
RESIDUAL CERTIFICATES.....................................E-2-1
EXHIBIT F FORM OF REGULATION S CERTIFICATE................................F-1
EXHIBIT G RESERVED........................................................G-1
EXHIBIT H FORM OF EXCHANGE CERTIFICATION..................................H-1
EXHIBIT I FORM OF EUROCLEAR OR CLEARSTREAM CERTIFICATE....................I-1
EXHIBIT J RESERVED........................................................J-1
EXHIBIT K FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION..............K-1
EXHIBIT L FORM OF INSPECTION REPORT.......................................L-1
EXHIBIT M FORM OF MONTHLY CERTIFICATEHOLDER REPORT........................M-1
EXHIBIT N RESERVED........................................................N-1
EXHIBIT O FORM OF SPECIAL SERVICER MONTHLY REPORT.........................O-1
EXHIBIT P RESERVED........................................................P-1
EXHIBIT Q RESERVED........................................................Q-1
EXHIBIT R RESERVED........................................................R-1
EXHIBIT S-1 FORM OF POWER OF ATTORNEY FOR SERVICER......................S-1-1
EXHIBIT S-2 FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER..............S-2-1
EXHIBIT T PROCEDURES FOR CALCULATING DEBT SERVICE COVERAGE RATIO..........T-1
SCHEDULE I BEAR XXXXXXX LOAN SCHEDULE...................................S-I-1
SCHEDULE II XXXXX FARGO LOAN SCHEDULE..................................S-II-1
SCHEDULE III XXXXXX XXXXXXX LOAN SCHEDULE.............................S-III-1
-ii-
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL
AGENT, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY
THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL
DISTRIBUTIONS AND REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF
THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE,
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS
AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-WF1
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS
A-1 CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING DATE: $_________________
AGREEMENT: AS OF FEBRUARY 1, 2000
SERVICER: XXXXX FARGO BANK,
CUT-OFF DATE: FEBRUARY 1, 2000 NATIONAL ASSOCIATION
CLOSING DATE: FEBRUARY __, 2000 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15, 2000
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE ASSOCIATION
CLASS A-1 CERTIFICATES AS OF THE
CLOSING DATE: $ FISCAL AGENT: ABN AMRO BANK N.V.
---------------------
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
[CUSIP NO. __________][CINS NO.
----------]
NO. _____
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting
primarily of a pool of commercial and multifamily mortgage loans (the
"Mortgage Loans") and certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
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 created pursuant to the Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing
Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, the Servicer and the Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall
from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO
A-1-2
Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the
face hereof (herein called the "Certificates") and representing an
interest in the Class of Certificates specified on the face hereof equal
to the quotient expressed as a percentage obtained by dividing the
Certificate Balance of this Certificate specified on the face hereof by
the aggregate initial Certificate Balance of the Class A-1 Certificates.
The Certificates are designated as the Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-WF1 and are issued in 18 classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended
from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms
specified in the Pooling and Servicing Agreement, the terms of the Pooling
and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and
subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a
Business Day, the next succeeding Business Day (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of
public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the
Pass-Through Rate on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the amount to be
distributed on the Certificates of this Class as of such Distribution
Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this
Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose.
A-1-3
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses and interest shortfalls on the Mortgage
Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, withdrawals from the Certificate
Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of certain expenses incurred with respect to the servicing of the Mortgage
Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on
behalf of the Paying Agent by wire transfer in immediately available funds
to an account specified in the request of such Certificateholder. All
distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available
funds to the account specified by the Certificateholder, at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring
instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of
the rights and obligations of the Certificateholders under the Pooling and
Servicing Agreement at any time by the parties thereto with the consent of
the Holders of not less than 51% of the Aggregate Certificate Balance of
the Certificates then outstanding, as specified in the Pooling and
Servicing Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of this Certificate and of any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon the Certificate. The Pooling and Servicing Agreement
also permits the amendment thereof, in certain circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office of
the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in
form satisfactory to the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon
one or more new Certificates of the same Class in authorized denominations
will be issued to the designated transferee or transferees.
A-1-4
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without
coupons, in minimum denominations specified in Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations as
requested by the Holder surrendering the same. No service charge will be
made for any such registration of transfer or exchange but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC, transfers of interests
in this Certificate shall be made through the book-entry facilities of
DTC.
The Depositor, the Trustee, the Fiscal Agent, the 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 Fiscal Agent, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents
shall be affected by notice to the contrary.
The obligations and responsibilities of the Paying Agent
created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the
nature of information or tax reporting) shall terminate on the earliest of
(i) the later of (A) the final payment or other liquidation of the last
Mortgage Loan remaining in the Trust and (B) the disposition of all REO
Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement or (iii) the
termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their
option to purchase the Mortgage Loans and any other property remaining in
the Trust and cause the termination of the Trust in accordance with the
requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual
Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW
YORK.
A-1-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
----------------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------------
AUTHORIZED SIGNATORY
A-1-6
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
(Cust)
TEN ENT - as tenants by the
entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights 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 of 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.
A-1-7
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.
X-0-0
XXXXXXX X-0
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL
AGENT, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY
THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL
DISTRIBUTIONS AND REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-2 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
CERTIFICATE REGISTRAR, OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.
HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS
A-2 CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING DATE: $________________
AGREEMENT: AS OF FEBRUARY 1, 2000
SERVICER: XXXXX FARGO BANK,
CUT-OFF DATE: FEBRUARY 1, 2000 NATIONAL ASSOCIATION
CLOSING DATE: FEBRUARY __, 2000 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15, 2000
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE ASSOCIATION
CLASS A-2 CERTIFICATES AS OF THE
CLOSING DATE: $_______________ FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
[CUSIP NO. __________][CINS NO.
__________]
NO. ___
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting
primarily of a pool of commercial and multifamily mortgage loans (the
"Mortgage Loans") and certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
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 created pursuant to the Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing
Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc.
(hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, Servicer and the Special Servicer, a summary of
certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account,
the Insurance Policies and any REO Properties. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
A-2-2
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the
face hereof (herein called the "Certificates") and representing an
interest in the Class of Certificates specified on the face hereof equal
to the quotient expressed as a percentage obtained by dividing the
Certificate Balance of this Certificate specified on the face hereof by
the aggregate initial Certificate Balance of the Class A-2 Certificates.
The Certificates are designated as the Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2000-WF1 and are issued in 18 classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended
from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms
specified in the Pooling and Servicing Agreement, the terms of the Pooling
and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and
subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a
Business Day, the next succeeding Business Day (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of
public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the
Pass-Through Rate on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the amount to be
distributed on the Certificates of this Class as of such Distribution
Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this
Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses and interest shortfalls on the Mortgage
Loans
A-2-3
allocated to any Class of Certificates will be allocated pro rata among
the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, withdrawals from the Certificate
Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of certain expenses incurred with respect to the servicing of the Mortgage
Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on
behalf of the Paying Agent by wire transfer in immediately available funds
to an account specified in the request of such Certificateholder. All
distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available
funds to the account specified by the Certificateholder, at a bank or
other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring
instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of
the rights and obligations of the Certificateholders under the Pooling and
Servicing Agreement at any time by the parties thereto with the consent of
the Holders of not less than 51% of the Aggregate Certificate Balance of
the Certificates then outstanding, as specified in the Pooling and
Servicing Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of this Certificate and of any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon the Certificate. The Pooling and Servicing Agreement
also permits the amendment thereof, in certain circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this
Certificate for registration of transfer at the Corporate Trust Office of
the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in
form satisfactory to the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon
one or more new Certificates of the same Class in authorized denominations
will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without
coupons, in minimum denominations specified in the Pooling and Servicing
Agreement.
A-2-4
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations as
requested by the Holder surrendering the same. No service charge will be
made for any such registration of transfer or exchange but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC, transfers of interests
in this Certificate shall be made through the book-entry facilities of
DTC.
The Depositor, the Trustee, the Fiscal Agent, the 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 Fiscal Agent, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents
shall be affected by notice to the contrary.
The obligations and responsibilities of the Paying Agent
created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the
nature of information or tax reporting) shall terminate on the earliest of
(i) the later of (A) the final payment or other liquidation of the last
Mortgage Loan remaining in the Trust and (B) the disposition of all REO
Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement or (iii) the
termination of the Trust pursuant to Section 10.1(c) of the Pooling and
Servicing Agreement; provided that in no event shall the Trust continue
beyond the expiration of 21 years from the death of the last survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their
option to purchase the Mortgage Loans and any other property remaining in
the Trust and cause the termination of the Trust in accordance with the
requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual
Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW
YORK.
A-2-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
--------------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
--------------------------------------
AUTHORIZED SIGNATORY
A-2-6
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
(Cust)
TEN ENT - as tenants by the
entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights 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 of 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.
A-2-7
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.
X-0-0
XXXXXXX X-0
[FORM OF CLASS X CERTIFICATE]
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES WILL BE DECREASED BY THE
PORTION OF PRINCIPAL DISTRIBUTIONS AND REALIZED LOSSES ON THE CERTIFICATES
ALLOCABLE TO 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. ACCORDINGLY, THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON FEBRUARY 1, 2000. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS [_____]%. BASED ON AN ISSUE PRICE OF [_____]% OF ITS INITIAL
NOTIONAL AMOUNT (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED
WITH RESPECT TO THE OFFERING OF THE CERTIFICATES), INCLUDING ACCRUED INTEREST,
AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ALL DISTRIBUTIONS HEREON,
THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX
PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH
FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS DEFINED IN THE PROSPECTUS
SUPPLEMENT DATED WITH RESPECT TO THE OFFERING OF THE CERTIFICATES) USED TO PRICE
THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL NOTIONAL
AMOUNT OF THIS CERTIFICATE IS APPROXIMATELY ; AND (II) THE ANNUAL
YIELD OF THIS
CERTIFICATE TO MATURITY, COMPOUNDED MONTHLY, IS APPROXIMATELY [_____]%.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
A-3-2
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF1
INITIAL PASS-THROUGH RATE: ____% AGGREGATE NOTIONAL AMOUNT OF THE CLASS X
CERTIFICATES AS OF THE CLOSING DATE:
INITIAL NOTIONAL AMOUNT OF THIS CLASS X $____________
CERTIFICATE: $__________________
SERVICER: XXXXX FARGO BANK, NATIONAL
DATE OF POOLING AND SERVICING AGREEMENT: ASSOCIATION
AS OF FEBRUARY 1, 2000
SPECIAL SERVICER: GMAC COMMERCIAL
CUT-OFF DATE: FEBRUARY 1, 2000 MORTGAGE CORPORATION
CLOSING DATE: FEBRUARY __, 2000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: MARCH 15, 2000
FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
[CUSIP NO. __________][CINS NO.
__________]
NO. ___
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest
evidenced by this Certificate in the Class X Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, the Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO
A-3-3
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class X Certificates. The Certificates are designated as the Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-WF1 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
Distributions of interest on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 15th day of each month or,
if such 15th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
A-3-4
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Paying
Agent by wire transfer in immediately available funds to an account specified in
the request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring instructions
no later than the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
A-3-5
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in denominations of $1,000,000 initial Notional
Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the 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 Fiscal
Agent, the Servicer, the Special Servicer, the Paying Agent, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Paying Agent created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the Pooling
and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-3-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_________________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:_________________________________________
AUTHORIZED SIGNATORY
A-3-7
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
(Cust)
TEN ENT - as tenants by the
entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights 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 of 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.
A-3-8
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.
X-0-0
XXXXXXX X-0
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL
AGENT, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO (I) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA)
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. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN THIS
CERTIFICATE HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS
NOMINEE SHALL BE DEEMED TO HAVE REPRESENTED TO THE FOREGOING STATEMENTS.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY
THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL
DISTRIBUTIONS AND REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY,
THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH
BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE
BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE,
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS
AN INTEREST HEREIN.
A-4-2
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS B
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $___________________
AGREEMENT: AS OF FEBRUARY 1, 2000
SERVICER: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: FEBRUARY 1, 2000 ASSOCIATION
CLOSING DATE: FEBRUARY __, 2000 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15,
2000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS B CERTIFICATES AS OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLOSING DATE: $_______________
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
[CUSIP NO. __________][CINS NO.
-----------]
NO. ___
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
A-4-3
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class B Certificates. The Certificates are designated as the Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-WF1 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans
A-4-4
allocated to any Class of Certificates will be allocated pro rata among the
outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Paying
Agent by wire transfer in immediately available funds to an account specified in
the request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring instructions
no later than the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
A-4-5
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the 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 Fiscal
Agent, the Servicer, the Special Servicer, the Paying Agent, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Paying Agent created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the Pooling
and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-4-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:________________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:________________________________________
AUTHORIZED SIGNATORY
A-4-7
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
(Cust)
TEN ENT - as tenants by the
entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights 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 of 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.
A-4-8
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.
A-4-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN
INTEREST IN THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL
AGENT, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO (I) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA)
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. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN THIS
CERTIFICATE HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS
NOMINEE SHALL BE DEEMED TO HAVE REPRESENTED TO THE FOREGOING STATEMENTS.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY
THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL
DISTRIBUTIONS AND REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY,
THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH
BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE
BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE,
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
A-5-2
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF1
INITIAL PASS-THROUGH RATE: % CERTIFICATE BALANCE OF THIS CLASS C
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $_________________
AGREEMENT: AS OF FEBRUARY 1, 2000
SERVICER: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: FEBRUARY 1, 2000 ASSOCIATION
CLOSING DATE: FEBRUARY __, 2000 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15,
2000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS C CERTIFICATES AS OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLOSING DATE: $ ------------------
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
[CUSIP NO. __________][CINS NO.
----------]
NO. ____
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
A-5-3
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class C Certificates. The Certificates are designated as the Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-WF1 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans
A-5-4
allocated to any Class of Certificates will be allocated pro rata among the
outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Paying
Agent by wire transfer in immediately available funds to an account specified in
the request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring instructions
no later than the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
A-5-5
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the 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 Fiscal
Agent, the Servicer, the Special Servicer, the Paying Agent, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Paying Agent created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the Pooling
and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-5-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ________________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By: ________________________________________
AUTHORIZED SIGNATORY
A-5-7
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
(Cust)
TEN ENT - as tenants by the
entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights 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 of 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.
A-5-8
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.
A-5-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO (I) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) 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. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN THIS CERTIFICATE
HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE SHALL BE DEEMED
TO HAVE REPRESENTED TO THE FOREGOING STATEMENTS.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS D CERTIFICATE.
ACCORDINGLY,
THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH
BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE
BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON FEBRUARY 1, 2000. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS [_____]%. BASED ON ITS ISSUE PRICE OF [_____]%, INCLUDING ACCRUED
INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL
PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS DEFINED IN
THE PROSPECTUS SUPPLEMENT DATED WITH RESPECT TO THE OFFERING OF THE
CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
[_____]%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO MATURITY, COMPOUNDED
MONTHLY, IS APPROXIMATELY [_____]%.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE,
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS
AN INTEREST HEREIN.
A-6-2
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF1
INITIAL PASS-THROUGH RATE: % CERTIFICATE BALANCE OF THIS CLASS D
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $_________________
AGREEMENT: AS OF FEBRUARY 1, 2000
SERVICER: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: FEBRUARY 1, 2000 ASSOCIATION
CLOSING DATE: FEBRUARY __, 2000 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15,
2000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS D CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $ ------------------
PAYING AGENT: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
[CUSIP NO. __________][CINS NO.
----------]
NO. ___
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
A-6-3
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class D Certificates. The Certificates are designated as the Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-WF1 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans
A-6-4
allocated to any Class of Certificates will be allocated pro rata among the
outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Paying
Agent by wire transfer in immediately available funds to an account specified in
the request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring instructions
no later than the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
A-6-5
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the 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 Fiscal
Agent, the Servicer, the Special Servicer, the Paying Agent, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Paying Agent created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the Pooling
and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-6-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:________________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:________________________________________
AUTHORIZED SIGNATORY
A-6-7
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
(Cust)
TEN ENT - as tenants by the
entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights 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 of 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.
A-6-8
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.
A-6-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO (I) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) 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. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN THIS CERTIFICATE
HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE SHALL BE DEEMED
TO HAVE REPRESENTED TO THE FOREGOING STATEMENTS.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS E CERTIFICATE.
ACCORDINGLY,
THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH
BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE
BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON FEBRUARY 1, 2000. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS [_____]%. BASED ON ITS ISSUE PRICE OF [_____]%, INCLUDING ACCRUED
INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL
PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS DEFINED IN
THE PROSPECTUS SUPPLEMENT DATED WITH RESPECT TO THE OFFERING OF THE
CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
[_____]%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO MATURITY, COMPOUNDED
MONTHLY, IS APPROXIMATELY [_____]%.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
A-7-2
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF1
INITIAL PASS-THROUGH RATE: % CERTIFICATE BALANCE OF THIS CLASS E
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $________________
AGREEMENT: AS OF FEBRUARY 1, 2000
SERVICER: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: FEBRUARY 1, 2000 ASSOCIATION
CLOSING DATE: FEBRUARY __, 2000 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15,
2000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS E CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $ ------------------
PAYING AGENT: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
[CUSIP NO. __________][CINS NO.
----------]
NO. ___
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
A-7-3
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class E Certificates. The Certificates are designated as the Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-WF1 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans
A-7-4
allocated to any Class of Certificates will be allocated pro rata among the
outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Paying
Agent by wire transfer in immediately available funds to an account specified in
the request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring instructions
no later than the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
A-7-5
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the 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 Fiscal
Agent, the Servicer, the Special Servicer, the Paying Agent, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Paying Agent created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the Pooling
and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-7-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ________________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By: ________________________________________
AUTHORIZED SIGNATORY
A-7-7
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
(Cust)
TEN ENT - as tenants by the
entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights 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 of 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.
A-7-8
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.
A-7-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS F CERTIFICATE]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO (I) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) 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. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN THIS CERTIFICATE
HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE SHALL BE DEEMED
TO HAVE REPRESENTED TO THE FOREGOING STATEMENTS.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS F CERTIFICATE.
ACCORDINGLY,
THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON FEBRUARY 1, 2000. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS [_____]%. BASED ON ITS ISSUE PRICE OF [_____]%, INCLUDING ACCRUED
INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL
PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS DEFINED IN
THE PROSPECTUS SUPPLEMENT DATED WITH RESPECT TO THE OFFERING OF THE
CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
[_____]%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO MATURITY, COMPOUNDED
MONTHLY, IS APPROXIMATELY [_____]%.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
A-8-2
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS F
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $________________
AGREEMENT: AS OF FEBRUARY 1, 2000
SERVICER: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: FEBRUARY 1, 2000 ASSOCIATION
CLOSING DATE: FEBRUARY __, 2000 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15, 2000
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE ASSOCIATION
CLASS F CERTIFICATES AS OF THE CLOSING
DATE: $__________________ FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
[CUSIP NO. __________][CINS NO.
----------]
NO. ___
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
A-8-3
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class F Certificates. The Certificates are designated as the Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-WF1 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans
A-8-4
allocated to any Class of Certificates will be allocated pro rata among the
outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Paying
Agent by wire transfer in immediately available funds to an account specified in
the request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring instructions
no later than the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
A-8-5
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the 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 Fiscal
Agent, the Servicer, the Special Servicer, the Paying Agent, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Paying Agent created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the Pooling
and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-8-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ________________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By: ________________________________________
AUTHORIZED SIGNATORY
A-8-7
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
(Cust)
TEN ENT - as tenants by the
entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights 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 of 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.
A-8-8
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.
A-8-9
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
X-0-00
XXXXXXX X-0
[FORM OF CLASS G CERTIFICATE]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO (I) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) 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. ANY
TRANSFEREE OF A BENEFICIAL INTEREST IN THIS CERTIFICATE HELD IN THE NAME OF THE
DEPOSITORY TRUST COMPANY OR ITS NOMINEE SHALL BE DEEMED TO HAVE REPRESENTED TO
THE FOREGOING STATEMENTS.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS G CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON FEBRUARY 1, 2000. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS [_____]%. BASED ON ITS ISSUE PRICE OF [_____]%, INCLUDING ACCRUED
INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL
PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS DEFINED IN
THE PRIVATE PLACEMENT MEMORANDUM DATED FEBRUARY __, 2000 WITH RESPECT TO THE
OFFERING OF THE CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY [_____]%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO
MATURITY, COMPOUNDED MONTHLY, IS APPROXIMATELY [_____]%.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY
A-9-2
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) FEBRUARY 1, 2000, THIS CERTIFICATE MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
A-9-3
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS G
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $_________________
AGREEMENT: AS OF FEBRUARY 1, 2000
SERVICER: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: FEBRUARY 1, 2000 ASSOCIATION
CLOSING DATE: FEBRUARY __, 2000 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15, 2000
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE ASSOCIATION
CLASS G CERTIFICATES AS OF THE CLOSING
DATE: $_____________ FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
[CUSIP NO. __________][CINS NO.
----------]
NO. ___
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
A-9-4
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class G Certificates. The Certificates are designated as the Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-WF1 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated
A-9-5
to any Class of Certificates will be allocated pro rata among the outstanding
Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Paying
Agent by wire transfer in immediately available funds to an account specified in
the request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring instructions
no later than the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
A-9-6
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the 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 Fiscal
Agent, the Servicer, the Special Servicer, the Paying Agent, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Paying Agent created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the Pooling
and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-9-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ________________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By: ________________________________________
AUTHORIZED SIGNATORY
A-9-8
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
(Cust)
TEN ENT - as tenants by the
entireties
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights 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 of 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.
A-9-9
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.
A-9-10
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
A-9-11
EXHIBIT A-10
[FORM OF CLASS H CERTIFICATE]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE 1933 ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO (I) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) 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. ANY
TRANSFEREE OF A BENEFICIAL INTEREST IN THIS CERTIFICATE HELD IN THE NAME OF THE
DEPOSITORY TRUST COMPANY OR ITS NOMINEE SHALL BE DEEMED TO HAVE REPRESENTED TO
THE FOREGOING STATEMENTS.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS H CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON FEBRUARY 1, 2000. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS [_____]%. BASED ON ITS ISSUE PRICE OF [_____]%, INCLUDING ACCRUED
INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL
PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS DEFINED IN
THE PRIVATE PLACEMENT MEMORANDUM DATED FEBRUARY __, 2000 WITH RESPECT TO THE
OFFERING OF THE CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (I) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY [_____]%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO
MATURITY, COMPOUNDED MONTHLY, IS APPROXIMATELY [_____]%.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY
A-10-2
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) FEBRUARY 1, 2000, THIS CERTIFICATE MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE
BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO BELOW.]
A-10-3
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS H
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $__________________
AGREEMENT: AS OF FEBRUARY 1, 2000
SERVICER: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: FEBRUARY 1, 2000 ASSOCIATION
CLOSING DATE: FEBRUARY __, 2000 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: MARCH 15, 2000
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE ASSOCIATION
CLASS H CERTIFICATES AS OF THE CLOSING
DATE: $__________ FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
[CUSIP NO. __________][CINS NO.
---------]
NO. ___
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
A-10-4
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class H Certificates. The Certificates are designated as the Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2000-WF1 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated
A-10-5
to any Class of Certificates will be allocated pro rata among the outstanding
Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Paying
Agent by wire transfer in immediately available funds to an account specified in
the request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Paying Agent with wiring instructions
no later than the related Record Date or otherwise by check mailed to such
Certificateholder. Notwithstanding the above, the final distribution on any
Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
A-10-6
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the 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 Fiscal
Agent, the Servicer, the Special Servicer, the Paying Agent, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Paying Agent created hereby
(other than the obligation of the Paying Agent to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) of the Pooling and
Servicing Agreement or (iii) the termination of the Trust pursuant to Section
10.1(c) of the Pooling and Servicing Agreement; provided that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the Pooling
and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-10-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: _______________________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.