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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
XXXXX FARGO BANK MINNESOTA, N.A.,
as Paying Agent
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POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2000
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COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-WF2
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS ....................................................................................4
Section 1.1 Definitions...................................................................4
Section 1.2 Calculations Respecting Mortgage Loans.......................................62
Section 1.3 Calculations Respecting Accrued Interest.....................................62
Section 1.4 Interpretation...............................................................62
Section 1.5 ARD Loan.....................................................................63
Section 1.6 Allocations in Respect of Loan Pairs.........................................64
ARTICLE II DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES................................................66
Section 2.1 Conveyance of Mortgage Loans.................................................66
Section 2.2 Acceptance by Trustee........................................................69
Section 2.3 Sellers'Repurchase of Mortgage Loans for Document .............................
Defects and Breaches of Representations and Warranties.......................72
Section 2.4 Representations and Warranties...............................................76
Section 2.5 Conveyance of Interests......................................................77
ARTICLE III THE CERTIFICATES ..............................................................................78
Section 3.1 The Certificates.............................................................78
Section 3.2 Registration.................................................................79
Section 3.3 Transfer and Exchange of Certificates........................................79
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates............................86
Section 3.5 Persons Deemed Owners........................................................86
Section 3.6 Access to List of Certificateholders'Names and Addresses.....................86
Section 3.7 Book-Entry Certificates......................................................87
Section 3.8 Notices to Clearing Agency...................................................90
Section 3.9 Definitive Certificates......................................................90
ARTICLE IV ADVANCES ......................................................................................91
Section 4.1 P&I Advances by Servicer.....................................................91
Section 4.2 Servicing Advances...........................................................92
Section 4.3 Advances by the Trustee and the Fiscal Agent.................................92
Section 4.4 Evidence of Nonrecoverability................................................93
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Section 4.5 Interest on Advances; Calculation of Outstanding Advances
with Respect to a Mortgage Loan..............................................94
Section 4.6 Reimbursement of Advances and Advance Interest...............................95
Section 4.7 Fiscal Agent Termination Event...............................................96
Section 4.8 Procedure Upon Termination Event.............................................97
Section 4.9 Limitation on Liability of the Fiscal Agent and Others.......................97
Section 4.10 Indemnification of Fiscal Agent..............................................98
ARTICLE V ADMINISTRATION OF THE TRUST....................................................................99
Section 5.1 Collections..................................................................99
Section 5.2 Application of Funds in the Certificate Account and
Interest Reserve Sub-account................................................102
Section 5.3 Distribution Account and Reserve Account....................................105
Section 5.4 Paying Agent Reports........................................................106
Section 5.5 Paying Agent Tax Reports....................................................108
ARTICLE VI DISTRIBUTIONS ................................................................................109
Section 6.1 Distributions Generally.....................................................109
Section 6.2 REMIC I.....................................................................109
Section 6.3 REMIC II....................................................................110
Section 6.4 REMIC III...................................................................116
Section 6.5 Allocation of Realized Losses and Shortfalls Due to
Nonrecoverability...........................................................121
Section 6.6 Net Aggregate Prepayment Interest Shortfalls and Net
Aggregate Balloon Interest Shortfalls.......................................124
Section 6.7 Adjustment of Servicing Fees................................................125
Section 6.8 Appraisal Reductions........................................................125
Section 6.9 Compliance with Withholding Requirements....................................126
Section 6.10 Yield Maintenance Charges; Prepayment Premiums..............................126
ARTICLE VII CONCERNING THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT ................................127
Section 7.1 Duties of Trustee, the Fiscal Agent and the Paying Agent....................127
Section 7.2 Certain Matters Affecting the Trustee, the Fiscal Agent and
the Paying Agent............................................................129
Section 7.3 The Trustee, the Fiscal Agent and the Paying Agent Not
Liable for Certificates or Interests or Mortgage Loans......................131
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Section 7.4 The Trustee, the Fiscal Agent and Paying Agent May Own
Certificates................................................................132
Section 7.5 Eligibility Requirements for the Trustee, the Fiscal Agent
and the Paying Agent........................................................132
Section 7.6 Resignation and Removal of the Trustee, the Fiscal Agent
or the Paying Agent.........................................................133
Section 7.7 Successor Trustee, Fiscal Agent or Paying Agent.............................135
Section 7.8 Merger or Consolidation of Trustee, Fiscal Agent or Paying
Agent.......................................................................136
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian...................................................................136
Section 7.10 Authenticating Agents.......................................................139
Section 7.11 Indemnification of Trustee, the Fiscal Agent and the Paying
Agent.......................................................................140
Section 7.12 Fees and Expenses of Trustee, the Fiscal Agent and Paying
Agent.......................................................................142
Section 7.13 Collection of Moneys........................................................142
Section 7.14 Trustee To Act; Appointment of Successor....................................142
Section 7.15 Notification to Holders.....................................................145
Section 7.16 Representations and Warranties of the Trustee, the Fiscal
Agent and the Paying Agent..................................................145
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee, the Fiscal Agent and the Paying
Agent.......................................................................148
ARTICLE VIII ADMINISTRATION AND SERVICING OF MORTGAGE LOANS................................................149
Section 8.1 Servicing Standard; Servicing Duties........................................149
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Servicer..................................................149
Section 8.3 Servicer's General Power and Duties.........................................150
Section 8.4 Sub-Servicing...............................................................155
Section 8.5 Servicer May Own Certificates...............................................155
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes
and Other...................................................................156
Section 8.7 Enforcement of Due-On-Sale Clauses and Due-on-
Encumbrance Clauses; Assumption Agreements..................................158
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files.....................161
Section 8.9 Documents, Records and Funds in Possession of Servicer
to be Held for the Trustee for the Benefit of the Certificateholders........162
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Section 8.10 Servicing Compensation......................................................163
Section 8.11 Servicer Reports; Account Statements........................................163
Section 8.12 Annual Statement as to Compliance...........................................165
Section 8.13 Annual Independent Public Accountants'Servicing Report......................166
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties........................................................166
Section 8.15 Other Available Information and Certain Rights of the
Servicer....................................................................167
Section 8.16 Rule 144A Information.......................................................169
Section 8.17 Inspections.................................................................169
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents....................................................................170
Section 8.19 Specially Serviced Mortgage Loans...........................................172
Section 8.20 Representations, Warranties and Covenants of the Servicer...................172
Section 8.21 Merger or Consolidation.....................................................174
Section 8.22 Resignation of Servicer.....................................................174
Section 8.23 Assignment or Delegation of Duties by Servicer..............................175
Section 8.24 Limitation on Liability of the Servicer and Others..........................175
Section 8.25 Indemnification; Third-Party Claims.........................................177
Section 8.26 Exchange Act Reporting......................................................179
Section 8.27 Compliance with REMIC Provisions............................................180
Section 8.28 Termination.................................................................180
Section 8.29 Procedure Upon Termination..................................................182
ARTICLE IX ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER.........184
Section 9.1 Duties of Special Servicer..................................................184
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy
of Special Servicer.........................................................185
Section 9.3 Sub-Servicers...............................................................185
Section 9.4 Special Servicer General Powers and Duties..................................185
Section 9.5 "Due-on-Sale"Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced Mortgage
Loans.......................................................................187
Section 9.6 Release of Mortgage Files...................................................191
Section 9.7 Documents, Records and Funds in Possession of Special
Servicer To Be Held for the Trustee.........................................192
Section 9.8 Representations, Warranties and Covenants of the Special
Servicer....................................................................193
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Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies................................................194
Section 9.10 Presentment of Claims and Collection of Proceeds............................196
Section 9.11 Compensation to the Special Servicer........................................197
Section 9.12 Realization Upon Defaulted Mortgage Loans...................................198
Section 9.13 Foreclosure.................................................................200
Section 9.14 Operation of REO Property...................................................200
Section 9.15 Sale of REO Property........................................................204
Section 9.16 Realization on Collateral Security..........................................205
Section 9.17 Sale of Defaulted Mortgage Loans............................................205
Section 9.18 Annual Officer's Certificate as to Compliance...............................206
Section 9.19 Annual Independent Accountants'Servicing Report.............................206
Section 9.20 Merger or Consolidation.....................................................206
Section 9.21 Resignation of Special Servicer.............................................206
Section 9.22 Assignment or Delegation of Duties by Special Servicer......................207
Section 9.23 Limitation on Liability of the Special Servicer and Others..................208
Section 9.24 Indemnification; Third-Party Claims.........................................210
Section 9.25 [RESERVED]..................................................................211
Section 9.26 Special Servicer May Own Certificates.......................................211
Section 9.27 Tax Reporting...............................................................211
Section 9.28 Application of Funds Received...............................................212
Section 9.29 Compliance with REMIC Provisions............................................212
Section 9.30 Termination.................................................................212
Section 9.31 Procedure Upon Termination..................................................213
Section 9.32 Certain Special Servicer Reports............................................215
Section 9.33 Special Servicer to Cooperate with the Servicer and Paying
Agent.......................................................................217
Section 9.34 Certain REMIC Limitations on Modification of Specially
Serviced Mortgage Loans.....................................................218
Section 9.35 [RESERVED]..................................................................218
Section 9.36 Sale of Defaulted Mortgage Loans and REO Properties.........................218
Section 9.37 Operating Advisor; Elections................................................220
Section 9.38 Limitation on Liability of Operating Advisor................................222
Section 9.39 Duties of Operating Advisor.................................................222
ARTICLE X PURCHASE AND TERMINATION OF THE TRUST.........................................................223
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of
All Mortgage Loans..........................................................223
Section 10.2 Procedure Upon Termination of Trust.........................................224
Section 10.3 Additional Trust Termination Requirements...................................225
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ARTICLE XI RIGHTS OF CERTIFICATEHOLDERS..................................................................227
Section 11.1 Limitation on Rights of Holders.............................................227
Section 11.2 Access to List of Holders...................................................228
Section 11.3 Acts of Holders of Certificates.............................................228
ARTICLE XII REMIC ADMINISTRATION..........................................................................229
Section 12.1 REMIC Administration........................................................229
Section 12.2 Prohibited Transactions and Activities......................................235
Section 12.3 Modifications of Mortgage Loans.............................................235
Section 12.4 Liability with Respect to Certain Taxes and Loss of
REMIC Status................................................................235
Section 12.5 Grantor Trust Reporting.....................................................236
ARTICLE XIII MISCELLANEOUS PROVISIONS......................................................................236
Section 13.1 Binding Nature of Agreement.................................................236
Section 13.2 Entire Agreement............................................................236
Section 13.3 Amendment...................................................................236
Section 13.4 GOVERNING LAW...............................................................238
Section 13.5 Notices.....................................................................238
Section 13.6 Severability of Provisions..................................................239
Section 13.7 Indulgences; No Waivers.....................................................239
Section 13.8 Headings Not to Affect Interpretation.......................................239
Section 13.9 Benefits of Agreement.......................................................239
Section 13.10 Special Notices to the Rating Agencies......................................239
Section 13.11 Counterparts................................................................241
Section 13.12 Intention of Parties........................................................241
Section 13.13 Recordation of Agreement....................................................243
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THIS POOLING AND SERVICING AGREEMENT is dated as of October 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 XXXXX FARGO BANK MINNESOTA, N.A., 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 Xxxx
Xxxxxx Mortgage Capital Inc., as seller ("MSDWMC"), 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
Certificates 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 September 20, 2000, as supplemented by the preliminary
prospectus supplement dated September 20, 2000 (together with the Prospectus,
the "Preliminary Prospectus Supplement"), and as further supplemented by the
final prospectus supplement dated September 27, 2000 (together with the
Prospectus, the "Final Prospectus Supplement"), and the Class G, Class H, Class
I, Class J, Class K, Class L, Class M and Class N Certificates have been offered
for sale pursuant to the Private Placement Memorandum dated September 27, 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 Certificates will be designated as the
sole class of residual interests in REMIC I and will have no Certificate Balance
and no Pass-Through Rate, but will be entitled to receive the proceeds of any
assets remaining in REMIC I after all classes of REMIC I Regular Interests have
been paid in full.
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.
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REMIC III
Initial Aggregate
Initial Certificate Principal
Pass-Through or Notional Final Scheduled Final Rated
Designation Rate(a) Amount Distribution (Date(b) Distribution Date(c)
----------- ------- ------ --------------------- --------------------
Class A-1 7.110% $170,728,000 September 15, 2009 October 15,2032
Class A-2 7.320% $529,432,000 August 15, 2010 October 15,2032
Class X (d) 1.160% $838,515,497 June 15, 2020 October 15,2032
Class B 7.460% $ 28,300,000 September 15, 2010 October 15,2032
Class C 7.590% $ 26,200,000 September 15, 2010 October 15,2032
Class D 7.690% $ 8,390,000 September 15, 2010 October 15,2032
Class E 8.050% $ 23,060,000 June 15, 2011 October 15,2032
Class F 8.193% $ 7,340,000 October 15, 2012 October 15,2032
Class G 8.193% $ 1,050,000 December 15, 2012 October 15,2032
Class H 6.625% $ 14,670,000 April 15, 2015 October 15,2032
Class I 6.625% $ 6,290,000 July 15, 2015 October 15,2032
Class J 6.625% $ 6,290,000 August 15, 2015 October 15,2032
Class K 6.625% $ 2,100,000 September 15, 2015 October 15,2032
Class L 6.625% $ 4,190,000 March 15, 2016 October 15,2032
Class M 6.625% $ 2,100,000 April 15, 2017 October 15,2032
Class N(e) 6.625% $ 8,375, 497 June 15, 2020 October 15,2032
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 will be made on the
Mortgage Loans in accordance with their terms and no prepayments will be
made on the Mortgage Loans (except that the ARD Loan will be prepaid in
full on its Anticipated Repayment Date).
(c) The Final Rated Distribution Date for each Class of Certificates is October
15, 2032. That date is approximately 24 months following the end of the
amortization term of the Mortgage Loan (other than any Mortgage Loan that
provides for payments of interest only until maturity) 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 N Certificates represent ownership of one REMIC III Regular
Interest, the REMIC III Class N Regular Interest (entitled to the principal
and interest set forth above). In addition, the Class N 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 N Certificates (other than the
portion thereof consisting of the REMIC III Class N 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.
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As of the Cut-Off Date, the Mortgage Loans had an Aggregate Principal
Balance of $838,515,497.
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, Class L and Class M Certificates and the REMIC III Class N 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
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the definition of the applicable Pass-Through Rate for each such Class. Accrued
Certificate Interest on the Class X Certificates for each Distribution Date will
equal the Class X Interest Amount.
"ACQUISITION DATE" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or, in the case of
the Mortgaged Property securing a Pari Passu Loan and its Companion Loan, the
interest therein associated with such 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 (other than a Pari Passu Loan), the
related Loan Pair or any REO Property related to a Mortgage Loan (other than a
Pari Passu Loan) or Loan Pair; (iii) amounts paid to indemnify the Servicer,
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 (other than any Pari Passu Loan) or Loan Pair 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; provided,
however, that, in the case of any Loan Pair, "Additional Trust Expense" shall
not include any of the foregoing amounts that have been recovered from any
Companion Noteholder or from the Companion Loan Custodial Account pursuant to
Section 5.2(a). 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.
"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.
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"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.
"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 the 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. (Section) 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan (other than any
Pari Passu Loan) or Loan Pair, not later than the earliest of (i) the date 120
days after
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the occurrence of any delinquency in payment with respect to such Mortgage Loan
or Loan Pair if such delinquency remains uncured, (ii) the date 30 days after
receipt of notice that the related borrower has filed a bankruptcy petition or
is the subject of an involuntary bankruptcy proceeding or a receiver is
appointed in respect of the related Mortgaged Property, provided such petition,
proceeding or appointment is still in effect, (iii) the effective date of any
modification to a Money Term of a Mortgage Loan (other than any Pari Passu Loan)
or Loan Pair, 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 that is 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 of the related
Mortgaged Property or REO Property 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 Loan Pair (or, in the case of an REO Property, the related
REO Mortgage Loan), (ii) to the extent not previously advanced, all unpaid
interest on such Mortgage Loan or Loan Pair 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 or Loan Pair (or REO 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. 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
of 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 or Loan Pair is brought current under
the then current terms of the Mortgage Loan or Loan Pair for at least three
consecutive months, and no Appraisal Reduction will exist as to any Mortgage
Loan or Loan Pair 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 or Loan Pair incurred prior to the
liquidation or disposition thereof. The Appraisal Reduction for any Loan Pair
shall be allocated, as between the related Pari Passu Loan and the related
Compassion Loan, in the manner provided in Section 1.6.
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"APPRAISED VALUE" means with respect to any Mortgaged Property, the
appraised value thereof determined by an Appraisal of the Mortgaged Property
securing the related Mortgage Loan (other than a Pari Passu Loan) or Loan Pair
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.
"ARD LOAN" means the Mortgage Loan identified on the Mortgage Loan Schedule
by loan number 10006891 and secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as "Trolley Square".
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage Loan (other than
a Pari Passu Loan) or Loan Pair, 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 (other than a
Pari Passu Loan) or Loan Pair.
"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 (other than Pari Passu Loans) or Loan
Pairs secured by Mortgaged Properties located in the same jurisdiction, if
permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any Mortgage Loan or
Companion Loan that is a Balloon Mortgage Loan, for its Maturity Date (provided
that such Mortgage Loan or Companion 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 or Companion Loan remains outstanding and such Mortgage Loan or,
in the case of a Companion Loan, its related Pari Passu Loan, remains 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 or
Companion 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 or
Companion 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 (or any interest
therein) remains part of the
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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 or Companion 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 Paying Agent in respect of unpaid Paying Agent Fees),
(iii) amounts that constitute Prepayment Premiums and/or Yield
Maintenance Charges,
(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,
(v) in the case of each REO Property related to a Loan Pair, all
amounts received with respect to such Loan Pair that are required to be
paid to the related Companion Noteholder pursuant to the terms of the
related Companion Loan and the related Pari Passu Intercreditor Agreement
(which amounts will be deposited into the related Companion Loan Custodial
Account pursuant to Section 5.1(c) and withdrawn from such account pursuant
to 5.2(a)), and
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(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 (other than the portion thereof made in respect of any one or more
Companion Loans), (ii) the aggregate amount of any Compensating Interest
payments made by the 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 or Companion 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 or
Companion 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 (other
than a Pari Passu Loan) or Loan Pair, 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,
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Class E, Class F and Class G Certificates, a fraction (A) whose numerator is the
greater of (x) zero and (y) the difference between (i) the Pass-Through Rate on
such Class of 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 or Loan Pair with respect to which the related Mortgaged Property
became REO Property, the receipt of all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds, Purchase Proceeds and other payments or
recoveries with respect
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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.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. (Section) 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,"
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"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 N
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 M," "Class N,"
"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, Class M Certificates and Class N 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 REMIC I Net Mortgage Rate (provided
that, for purposes of this definition, the Weighted Average REMIC I Net Mortgage
Rate shall be determined by calculating each respective Mortgage Rate by giving
effect to any reduction in such Mortgage Rate resulting from any modification,
waiver or amendment of the terms of the Mortgage Loan or otherwise following the
Closing Date but in no event (including in connection with any bankruptcy,
insolvency or similar proceeding involving the related Mortgagor) reducing such
rate such that the resulting Net Mortgage Rate is below the lesser of (x) the
original Net Mortgage Rate or (y) the highest Pass-Through Rate that was in
effect on any Class of Principal Balance Certificates for purposes of the
Distribution Date occurring immediately following the Collection Period in which
such reduction became effective) 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, Class M Certificates
and Class N Certificates.
"CLASS X-1 INTEREST AMOUNT" means, for each Distribution Date occurring in
March of any year, the excess of (i) the Interest Reserve Amounts deposited to
the Interest Reserve Sub-account on the Distribution Date in the preceding
January (if applicable) and February over (ii) an amount equal to two days'
interest (or one day's interest, if the preceding February was a month of 29
days) on the Scheduled Principal
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Balance of the Interest Reserve Loans as of the Due Date in March (before giving
effect to collections of principal applied and Realized Losses incurred with
respect to such Mortgage Loan).
"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.
"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 (i) the Weighted Average REMIC I Net
Mortgage Rate (provided that, for purposes of this definition, the Weighted
Average REMIC I Net Mortgage Rate shall be determined by calculating each
respective Mortgage Rate by giving effect to any reduction in such Mortgage Rate
resulting from any modification, waiver or amendment of the terms of the
Mortgage Loan or otherwise following the Closing Date but in no event (including
in connection with any bankruptcy, insolvency or similar proceeding involving
the related Mortgagor) reducing such rate such that the resulting Net Mortgage
Rate is below the lesser of (x) the original Net Mortgage Rate or (y) the
highest Pass-Through Rate that was in effect on any Class of Principal Balance
Certificates for purposes of the Distribution Date occurring immediately
following the Collection Period in which such reduction became effective) for
such Distribution Date over (ii) 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 October 5, 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.
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"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.
"COMPANION LOAN" means a mortgage loan (a) secured by the related Pari
Passu Mortgage on a pari passu basis with the corresponding Pari Passu Loan, and
(b) subordinated in right of payment to the Pari Passu Loan up to and including
the date specified in the Pari Passu Intercreditor Agreement. None of the
Companion Loans is a Mortgage Loan.
"COMPANION LOAN CUSTODIAL ACCOUNT" means each of the custodial sub-account
or sub-accounts of the Certificate Account created and maintained by the
Servicer pursuant to Section 5.1(c) on behalf of the Companion Noteholder. Any
such account or accounts shall be an Eligible Account.
"COMPANION LOAN EARNOUT DATE" means, with respect to any Companion Loan,
the earlier of (a) the date (if any) on which the related Mortgagor satisfies or
causes to be satisfied all conditions to the release or reduction in full of the
letter of credit securing the obligations of such Mortgagor under the Companion
Note evidencing such Companion Loan and (b) the date (if any) on which the
Companion Noteholder makes a draw on the letter of credit and applies the
proceeds thereof to a repayment of the Companion Note in an amount equal to the
"required payment" following the failure of the related Mortgagor to satisfy or
cause to be satisfied all of the conditions to the release or reduction in full
of the letter of credit securing the Companion Note evidencing such Companion
Loan.
"COMPANION NOTE" means the mortgage note evidencing the indebtedness under
a Companion Loan.
"COMPANION NOTEHOLDER" means the holder of the mortgage note evidencing a
Companion Loan; provided, however, that if such holder is a trust then
"Companion Noteholder" shall be construed to refer to the master servicer of
such trust for purposes of each provision of this Agreement that otherwise
requires the delivery of any notice or request to such holder.
"COMPENSATING INTEREST" means with respect to any Distribution Date, an
amount equal to the excess of (A) Prepayment Interest Shortfalls resulting from
Principal Prepayments on the Mortgage Loans (but not any Companion Loans) during
the related Collection Period over (B) Prepayment Interest Excesses resulting
from Principal
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Prepayments on the Mortgage Loans (but not any Companion Loans) during the same
Collection Period, plus an amount equal to the excess of (A) Balloon Interest
Shortfalls resulting from the voluntary payment on Mortgage Loans (but not any
Companion Loans), prior to the Due Date during such Collection Period, of
Balloon Payments 60 or more days after the original Maturity Dates thereof over
(B) Balloon Interest Excesses resulting from payments during such Collection
Period of Balloon Payments on the Mortgage Loans (but not any Companion Loans)
that were made 60 or more days after their respective Maturity Dates; it being
understood that the Servicer will be responsible for Compensating Interest
payments relating only to Mortgage Loans that are not Specially Serviced
Mortgage Loans 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 but excluding REO Mortgage Loans relating to
Companion Loans) less the portion payable to Sub-Servicers as Sub-Servicing Fees
and (ii) the Special Servicer shall not be required to make any payments of
Compensating Interest.
"CONDEMNATION PROCEEDS" means, (i) with respect to any Mortgage Loan (other
than a Pari Passu Loan) or any Loan Pair, 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 (if applicable) its related
Companion Loan, and (ii) with respect to any Pari Passu Loan or Companion Loan,
the portion of such awards set forth in (i) above for the related Loan Pair that
is allocable to such Pari Passu Loan or Companion Loan under the related Pari
Passu Intercreditor Agreement and Section 1.6 of this Agreement.
"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 N 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-WF2 and the office of the Certificate Registrar
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is presently located at Xxxxx Xxxxx Xxxxxx, Xxxxx xxx Xxxxxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS)--Bear Xxxxxxx
Series 2000-WF2, 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 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 October 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 on the Mortgage Loans after the Cut-Off Date but
received by the Servicer on or before the Cut-Off Date.
"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 or Companion 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.
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"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan or Companion 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.
"DEFEASANCE LOAN": Any Mortgage Loan or Companion Loan which requires the
related Mortgagor (or permits the holder of such Mortgage Loan or Companion Loan
to require the related Mortgagor) to pledge Defeasance Collateral to such holder
in lieu of prepayment.
"DEFICIENT VALUATION" means, (i) with respect to any Mortgage Loan (other
than a Pari Passu Loan) or Loan Pair, a valuation by a court of competent
jurisdiction of the Mortgaged Property relating to such Mortgage Loan or Loan
Pair in an amount less than the then outstanding indebtedness under such
Mortgage Loan or Loan Pair, which valuation results from a proceeding initiated
under the United States Bankruptcy Code, as amended from time to time, and
reduces the amount the Mortgagor is required to pay under such Mortgage Loan or
Loan Pair and (ii) with respect to any Pari Passu Loan or Companion Loan, the
portion of such deficient valuation set forth in (i) above for the related Loan
Pair that is allocable to such Pari Passu Loan or Companion Loan under the
related Pari Passu Intercreditor Agreement and Section 1.6 of this Agreement.
"DEFICIENT VALUATION AMOUNT" means, (i) with respect to any Mortgage Loan
(other than a Pari Passu Loan) or Loan Pair, the amount by which the total
amount due with respect to such Mortgage Loan or Loan Pair (excluding interest
not yet accrued), including the principal balance of such Mortgage Loan or Loan
Pair, 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 and (ii) with
respect to any Pari Passu Loan or Companion Loan, the portion of such amounts
set forth in (i) above for the related Loan Pair that is allocable to such Pari
Passu Loan or Companion Loan under the related Pari Passu Intercreditor
Agreement and Section 1.6 of this Agreement.
"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).
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"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 November 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 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 and Net Aggregate
Balloon Payment 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
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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 November 15, 2000.
"DOCUMENT DEFECT" has the meaning set forth in Section 2.3(a).
"DUE DATE" means, with respect to a Mortgage Loan or Companion Loan, the
date on which a Scheduled Payment is due.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "A-1" by S&P and "F-1+" by Fitch, if the deposits
are to be held in the account for 30 days or less), or (B) long-term unsecured
debt obligations are rated at least "A-" by S&P and "AA-" by Fitch, if the
deposits are to be held in the account more than 30 days or (ii) a segregated
trust account or accounts maintained in the trust department of the Trustee, the
Paying Agent or other financial institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), or (iii) an account or accounts of a depository
institution acceptable to each Rating Agency, as evidenced by Rating Agency
Confirmation with respect to the use of any such account as the Certificate
Account or the Distribution Account.
"ELIGIBLE INVESTMENTS" means any one or more of the following financial
assets or other property.
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America, FNMA,
FHLMC or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; provided that any obligation of FNMA or FHLMC, other than an
unsecured senior debt obligation of, or guarantee by, FNMA or FHLMC, shall be an
Eligible Investment only if Rating Agency Confirmation is obtained with respect
to such investment;
(ii) demand or time deposits in, unsecured certificates of deposit of,
or bankers' acceptances issued by, any depository institution or trust company
(including the Trustee, the Fiscal Agent, 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
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"F-1+" by Fitch and "A-1+" by S&P or, if not rated by a Rating Agency, then such
Rating Agency has issued a Rating Agency Confirmation, or demand or time
deposits of Xxxxx Fargo Bank, National Association (or Xxxxx Fargo & Company),
provided that the long-term unsecured debt obligations of Xxxxx Fargo Bank,
National Association (or Xxxxx Fargo & Company) are rated "A" or better by Fitch
and S&P;
(iii) repurchase agreements or obligations with respect to any security
described in clause (i) above where such security has a remaining maturity of
one year or less and where such repurchase obligation has been entered into with
a depository institution or trust company (acting as principal) described in
clause (ii) above and where such repurchase obligation will mature prior to the
Business Day preceding the next date upon which, as described in this Agreement,
such amounts are required to be withdrawn from the and which meets the minimum
rating requirement for such entity described above;
(iv) debt obligations (other than stripped bonds or stripped coupons)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof, which
securities are rated at least "AA-" or its equivalent by each Rating Agency,
unless otherwise specified in writing by the Rating Agency; provided that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then-outstanding principal
amount of securities issued by such corporation and held in the Certificate
Account to exceed 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 non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a specified
date not more than one year after the date of issuance thereof) rated "A-1" by
Fitch and "A-1+" by S&P (or for which Rating Agency Confirmation is obtained
with respect to such ratings);
(vi) units of investment funds (including money market funds) rated in
the highest long-term category by Fitch, or if not rated by Fitch then otherwise
approved by Fitch, and rated in the highest long-term category by S&P, or if not
rated by S&P then S&P has issued a Rating Agency Confirmation;
(vii) any money market funds that maintain a constant asset value and
that are rated "AAAm" or "AAAm-G" (or its equivalent rating) by S&P and Fitch,
and any other demand, money-market or time deposit, or any other obligation,
security or investment, with respect to which Rating Agency Confirmation has
been obtained; and
(viii) such other investments bearing interest or sold at a discount,
earning a return "in the nature of interest" within the meaning of Treasury
Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion of Counsel
delivered to the Trustee and the Paying Agent by the Servicer at the Servicer's
expense), as are
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acceptable to the Rating Agencies (as evidenced by Rating Agency Confirmation)
and treated as "permitted investments" that are "cash flow investments" under
Code Section 860G(a)(5);
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(1) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Code Section 860G(a)(5); and provided, further,
that any such instrument shall not have a maturity in excess of one year; any
such instrument must have a predetermined fixed dollar of principal due at
maturity that cannot vary or change; interest on any variable rate instrument
shall be tied to a single interest rate index plus a single fixed spread (if
any) and move proportionally with that index; and the foregoing clause shall not
apply to investments in units of money market funds pursuant to clause (v) or
clause (vii) above; provided, further, that no amount beneficially owned by any
REMIC Pool (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 Pool as a REMIC under the
Code or result in imposition of a tax on any such REMIC Pool. No Eligible
Investments shall be purchased at a price in excess of par. For the purpose of
this definition, units of investment funds (including money market funds) shall
be deemed to mature daily.
"ENVIRONMENTAL INSURANCE POLICY" shall mean, with respect to any Mortgage
Loan or the related Mortgaged Property or REO Property, if such Mortgage Loan
(or the Mortgage Loan related to such Mortgaged Property or REO Property) is an
Environmentally Insured Mortgage Loan, the related Individual Environmental
Insurance Policy or the Group Environmental Insurance Policy, as the case may
be.
"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,
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disposal, transport or handling of any of the foregoing substances or wastes or
the clean-up or other remediation thereof.
"ENVIRONMENTALLY INSURED MORTGAGE LOAN" means any Mortgage Loan set forth
on Exhibit P hereto, which Mortgage Loan is a subject of the Group Environmental
Insurance Policy, or any Mortgage Loan set forth on Exhibit Q hereto, which
Mortgage Loan is the subject of an Individual Environmental Insurance Policy.
"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).
"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 the ARD Loan if the ARD Loan is
not prepaid in full on or before 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 on the ARD Loan 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
(or, in the case of an REO Property related to a Pari Passu Loan, the portion of
such Liquidation Proceeds allocable to such Pari Passu Loan under the related
Pari Passu Intercreditor Agreement and Section 1.6 of this Agreement), 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.
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"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.
"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, Companion 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 or Companion 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 or Companion 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 there are no delinquencies, modifications (including extensions of
Maturity Dates), repurchases or prepayments on or in respect of the Mortgage
Loans after the Closing Date and further assuming 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.
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"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in Section 4.7
hereof.
"FITCH" means Fitch 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.
"GROUP ENVIRONMENTAL INSURANCE POLICY" shall mean that certain Secured
Creditor Impaired Property Policy, policy number 3417334, issued by American
International Specialty Lines Insurance Company and effective as of the Closing
Date, including all endorsements thereto.
"HOLDER" means the Person in whose name a Certificate is registered on the
Certificate Register.
"INDEPENDENT" means, when used with respect to any Accountants, a Person
who is "independent" within the meaning of Rule 2-01(B) of the Securities and
Exchange Commission's Regulation S-X. Independent means, when used with respect
to any other Person, a Person who (A) is in fact independent of another
specified Person and any Affiliate of such other Person, (B) does not have any
material direct or indirect financial interest in such other Person or any
Affiliate of such other Person, (C) is not connected with such other Person or
any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any Mortgage
Loan (A) that is not a Specially Serviced Mortgage Loan, any Person designated
by the 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
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(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.
"INDIVIDUAL ENVIRONMENTAL INSURANCE POLICY" means (i) with respect to the
Mortgage Loan identified on the Mortgage Loan Schedule by loan number 26188 and
secured by the Mortgaged Property identified on the Mortgage Loan Schedule as
"Basket Road Publishers Parkway", the Secured Creditor Impaired Property Policy,
policy number 7788443, issued by Commerce and Industry Insurance Company (a
subsidiary of American International Group, Inc.) and effective as of a date on
or before the Closing Date, including all endorsements thereto, (ii) with
respect to the Mortgage Loan identified on the Mortgage Loan Schedule by loan
number 28750 and secured by the Mortgaged Property identified on the Mortgage
Loan Schedule as "Long Beach Marketplace", the Secured Creditor Impaired
Property Policy, policy number 7788406, issued by Commerce and Industry
Insurance Company and effective as of a date on or before the Closing Date,
including all endorsements thereto, (iii) with respect to the Mortgage Loan
identified on the Mortgage Loan Schedule by loan number 28983 and secured by the
Mortgaged Property identified on the Mortgage Loan Schedule as "FM Global
Headquarters", the Secured Creditor Impaired Property Policy, policy number
7788450, issued by Commerce and Industry Insurance Company and effective as of a
date on or before the Closing Date, including all endorsements thereto and (iv)
with respect to the Mortgage Loan identified on the Mortgage Loan Schedule by
loan number 29136 and secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as "Solectron Building", the Secured Creditor Impaired
Property Policy, policy number 7788419, issued by Commerce and Industry
Insurance Company and effective as of a date on or before the Closing Date,
including all endorsements thereto.
"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.
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"INSTITUTIONAL ACCREDITED INVESTOR" shall mean an institutional accredited
investor qualifying pursuant to Rule 501(a)(1), (2), (3), (7) or (8) under
Regulation D of the 1933 Act.
"INSURANCE POLICIES" means, collectively, any Standard Hazard Insurance
Policy, Environmental 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.
"INSURANCE PROCEEDS" means, (i) with respect to any Mortgage Loan (other
than a Pari Passu Loan) or Loan Pair, 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 Loan Pair or the Servicing
Standard and (ii) with respect to any Pari Passu Loan or Companion Loan, the
portion of such amounts set forth in (i) above for the related Loan Pair that is
allocable to such Pari Passu Loan or Companion Loan under the related Pari Passu
Intercreditor Agreement and Section 1.6 of this Agreement.
"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 Advisor (provided that one has been elected
pursuant to Section 9.37 of this Agreement), 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
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the lien of the Mortgage securing the related Mortgage Note and, in the case of
a Pari Passu Loan, the related Companion Note.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan or Companion
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 or Companion Loan in
connection with a late payment made by such Mortgagor.
"LIQUIDATION EXPENSES" means reasonable and direct expenses incurred by the
Special Servicer on behalf of the Trust in connection with the enforcement and
liquidation of any Specially Serviced Mortgage Loan or REO Property acquired in
respect thereof including, without limitation, reasonable legal fees and
expenses, 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 final disposition of a
Specially Serviced Mortgage Loan or REO Property and any Condemnation Proceeds
received in connection with a Specially Serviced Mortgage Loan or REO Property;
provided, however, that in the case of a final disposition consisting of the
repurchase of a Mortgage Loan or REO Property by a Seller as described in
Section 2.3, the product of (x) 0.25% and (y) the cash purchase price paid by
such Seller (net of, so as to avoid circular definitions and double counting,
the portion of the related Purchase Price that represents any "Liquidation Fees"
that were required to be paid by such Seller).
"LIQUIDATION PROCEEDS" means, (i) with respect to any Mortgage Loan (other
than a Pari Passu Loan) or Loan Pair, proceeds from the sale or liquidation of
such Mortgage Loan or Loan Pair or the related REO Property (including
Recoveries), net of Liquidation Expenses and any related Advances and interest
thereon and (ii) with respect to any Pari Passu Loan or Companion Loan, the
portion of such proceeds set forth in (i) above for the related Loan Pair that
is allocable to such Pari Passu Loan or Companion Loan under the related Pari
Passu Intercreditor Agreement and Section 1.6 of this Agreement.
"LIQUIDATION REALIZED LOSS" means, with respect to each Mortgage Loan
(other than a Pari Passu Loan) or Loan Pair or REO Property, as the case may be,
as to
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which a Cash Liquidation or REO Disposition has occurred, an amount equal to the
sum, without duplication, of (A) the Principal Balance of such Mortgage Loan or
Loan Pair (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 or Loan Pair 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, Loan Pair 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 or Loan Pair, the unpaid interest on the
Mortgage Loan or Loan Pair, calculated as described in clause (B) above, and
then against the principal balance of such Mortgage Loan or Loan Pair,
calculated as described in clause (A) above.
"LOAN PAIR" means a Pari Passu Loan and its Companion Loan, collectively.
"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 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 (or, in the case of each Pari Passu Loan, the portion of such value
that is allocable to such Pari Passu Loan according to the ratio of its
Scheduled Principal Balance to the sum of its Scheduled Principal Balance and
the Scheduled Principal Balance of the related Companion Loan).
"LOCK-BOX ACCOUNT" shall have the meaning set forth in Section 8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan (other than a
Pari Passu Loan) or Loan Pair, 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.
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"LOSSES" has the meaning set forth in Section 12.4.
"MATURITY DATE" means, with respect to any Mortgage Loan or Companion 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 or Companion Note, after
taking into account all Principal Prepayments received and any Deficient
Valuation, Debt Service Reduction Amount or modification of the Mortgage Loan or
Companion Loan occurring prior to such date of determination, but without giving
effect to (i) any acceleration of the principal of such Mortgage Loan or
Companion Loan or (ii) any grace period permitted by the related Mortgage Note
or Companion Note.
"MODIFICATION FEE" means a fee, if any, collected from a Mortgagor by the
Servicer in connection with a modification of any Mortgage Loan or Companion
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, (A) with respect to each Mortgage Loan (other
than a Pari Passu Loan) or Loan Pair, as to which a modification thereof has
occurred in accordance with the terms hereof, an amount equal to the sum,
without duplication, of (i) any decrease in the principal balance of such
Mortgage Loan or Loan Pair, (ii) any expenses incurred in connection with such
modification, to the extent (x) reimbursable to the Trustee, the Special
Servicer or the Servicer and (y) not recovered from the Mortgagor and (iii) in
the case of a modification of such a Mortgage Loan or Loan Pair 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 or Loan Pair during the
preceding Collection Period and (B) with respect to any Pari Passu Loan or
Companion Loan, the portion of such sum referred to in (A) above for the related
Loan Pair that is allocable to such Pari Passu Loan or Companion Loan under the
related Pari Passu Intercreditor Agreement and Section 1.6 of this Agreement.
"MONEY TERM" means with respect to any Mortgage Loan or Companion 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 Charges and Prepayment Premiums; (iii) the number of
outstanding Mortgage Loans and the aggregate Principal Balance and Scheduled
Principal Balance of the Mortgage Loans at
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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 (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-WF2, without
recourse, representation or warranty, express or implied" or if the original
Mortgage Note is not included therein, then a lost note affidavit containing a
customary indemnification provision with a copy of the Mortgage Note attached
thereto;
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(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-WF2";
(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-WF2";
(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-WF2";
(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;
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(xiii) (a) with respect to any Mortgage Loan with Junior Indebtedness, a
subordination agreement, pursuant to which such Junior Indebtedness is
subordinated to such Mortgage Loan and (b) with respect to each Pari Passu Loan,
the related Pari Passu Intercreditor Agreement and a photocopy of the promissory
note evidencing the related Companion Loan;
(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) any additional documents required to be added to the Mortgage File
pursuant to this Agreement;
(xvi) an original or copy of any lock-box agreements and intercreditor
agreements related to any Mortgage Loan;
(xvii) any management agreements relating to Mortgaged Properties that are
operated as hotels or that secure a Mortgage Loan that has a Principal Balance
as of the Cut-Off Date that is in excess of $20 million;
(xviii) an original or copy of any environmental indemnification agreements
related to any Mortgage Loan;
(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-WF2"; and
(xx) with respect to each Environmentally Insured Mortgage Loan, either (a)
if such Environmentally Insured Mortgage Loan is a subject of the Group
Environmental Insurance Policy, a photocopy of the Group Environmental Insurance
Policy, or (b) if such Environmentally Insured Mortgage is a subject of an
Individual Environmental Insurance Policy, the original of such Environmental
Insurance Policy;
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.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, and conveyed, transferred, sold, assigned to or
deposited with the Trustee pursuant to Section 2.1 or Section 2.3. "Mortgage
Loan" shall also include each Defeasance Loan and each Pari Passu Loan but shall
not include a Companion Loan.
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"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 October 1, 2000 between BSF and the Depositor
with respect to the BSF Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain Mortgage Loan
Purchase Agreement between Xxxxx Fargo and the Depositor dated as of October 1,
2000 with respect to the Xxxxx Fargo Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT III" means that certain Mortgage Loan
Purchase Agreement dated as of October 1, 2000 between MSDWMC and the Depositor
with respect to the MSDWMC 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 MSDWMC 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 or Companion Loan, the per
annum rate stated in the Mortgage Loan documents or the Companion Loan
documents, as applicable, at which interest accrues on such Mortgage Loan or
Companion 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 (other than a Pari Passu Loan) or Loan Pair.
"MORTGAGEE" means, with respect to any Mortgage as of any date of
determination, the holder of the related Mortgage Note as of such date.
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"MORTGAGOR" means the obligor on a Mortgage Note and (in the case of a Pari
Passu Loan) the related Companion Note.
"MSDWMC" has the meaning assigned in the Preliminary Statement hereto.
"MSDWMC 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,
with respect to all Mortgage Loans, the excess, if any, of aggregate Balloon
Interest Shortfalls over aggregate Balloon Interest Excesses for the related
Collection Period.
"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 related successor 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
aggregate Prepayment Interest Excesses for such Collection Period for all
Specially Serviced Mortgage Loans (including REO Mortgage Loans).
"NET MORTGAGE RATE" means, with respect to any Mortgage Loan or Companion
Loan (or successor REO Mortgage Loan), a rate per annum equal to the related
Mortgage Rate minus the related Administrative Cost Rate.
"NEW LEASE" means any lease of any REO Property entered into on behalf of
the Trust and (in the case of any REO Property relating to a Pari Passu Loan)
the Companion Noteholder, including any lease renewed or extended on behalf of
the Trust and (if applicable) such Companion Noteholder if it has or they have
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.
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"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 with respect to any Mortgage Loan or
Companion Loan, 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 or from any collections with respect
to the related Mortgage Loan or Companion Loan or the related 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 or Companion
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 (in the case of any Companion Loan) the
related Companion Noteholder and may, in all cases, be relied on by the Trustee
and the Fiscal Agent.
"NON-REGISTERED CERTIFICATE" means unless and until registered under the
Securities Act, any Class G, Class H, Class I, Class J, Class K, Class L, Class
M, Class N 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.
"NWAC RATE" means, with respect to the Pass-Through Rate for any Class of
Principal Balance Certificates and any Distribution Date, the Weighted Average
REMIC I Net Mortgage Rate for such Distribution Date.
"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
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of the officers referred to above or an 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 ADVISOR" shall have the meaning specified in Section 9.37(a).
"OPERATING ADVISOR VOTES" shall mean the votes cast at a duly called
meeting by the Holders of the Controlling Class to elect an Operating Advisor.
"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 (a) in cases of Mortgage Loans other than the
Semiannual Pay Loan, (i) with respect to any such Mortgage Loan, Companion 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 such Mortgage Loan that is a Balloon Mortgage Loan
(including any successor REO Mortgage Loan) 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 relating to any such Mortgage Loan, an amount equal to the
excess, if any, of the Assumed Scheduled Payment for the Mortgage Loan and/or
Companion Loan related to such REO Property during the related Collection
Period, over remittances of REO Income (or, in the case of a Pari Passu Loan or
Companion Loan, the portion thereof allocable to such Pari Passu Loan or
Companion Loan under the related Pari Passu Intercreditor Agreement and
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Section 1.6 of this Agreement) 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); and (b) in the case of the
Semiannual Pay Loan, (i) if it has not become an REO Mortgage Loan, either (A)
if a Scheduled Payment was not due on such Mortgage Loan during the related
Collection Period, one-sixth of the interest portion of the Scheduled Payment
that will be due on the immediately succeeding Due Date, to the extent such
amount was not paid by or on behalf of the related borrower or (B) if a
Scheduled Payment is due during the related Collection Period, one-sixth of the
interest portion and the entire principal portion of such Scheduled Payment, to
the extent such amount was not paid by or on behalf of the related borrower or
otherwise collected and (ii) if the Semiannual Pay Loan has become an REO
Mortgage Loan, either (A) if a Scheduled Payment would not have been due on the
Semiannual Pay Loan during the related Collection Period, the excess, if any, of
one-sixth of the interest portion of the Assumed Scheduled Payment for the
immediately succeeding Due Date for such Mortgage Loan 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)) or (B) if a Scheduled Payment would have been due
on the Semiannual Pay Loan during the related Collection Period, the excess, if
any, of one-sixth of the interest portion and the entire principal portion of
the Assumed Scheduled Payment of the Due Date in such Collection Period over
remittance 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 that is net of the Servicing 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, further, that the Scheduled
Payment or Assumed Scheduled Payment for any Mortgage Loan or Companion Loan
which has been modified shall be calculated based on its terms as modified and
provided, further, that (A) the amount of any P&I Advance with respect to a
Mortgage Loan (or a Pari Passu Loan or Companion Loan contained in a Loan Pair)
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 or Companion Loan as of the immediately preceding
Determination Date less any Appraisal Reduction (or, in the case of a Pari Passu
Loan or Companion Loan, the portion of the Appraisal Reduction that is allocable
to such Pari Passu Loan or Companion Loan pursuant to the related Pari Passu
Intercreditor Agreement and Section 1.6) and the denominator of which is the
Principal Balance of the Mortgage Loan or Companion Loan as of such
Determination Date. All P&I Advances for any Mortgage Loans or Companion 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, Companion
Loan or REO Property, the amount of the P&I Advance for each Mortgage Loan or
Companion Loan computed for any Distribution Date (or, in the case of an REO
Property related to a Loan Pair, the sum of the amount of the P&I Advance for
the related Pari Passu Loan and the amount of the P&I Advance for the related
Companion Loan).
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"PARI PASSU INTERCREDITOR AGREEMENT": With respect to each Pari Passu Loan
and its related Companion Loan, the related intercreditor agreement, by and
between the related Seller and the initial holder of the Companion Loan relating
to the relative rights of the holder of the Pari Passu Loan and the holder of
such Companion Loan, as the same may be amended from time to time.
"PARI PASSU LOAN" means each of (i) the Mortgage Loans identified on the
Mortgage Loan Schedule by loan numbers 29476A and 29476B and (ii) the Mortgage
Loan identified on the Mortgage Loan Schedule by loan number 28750, each of
which is (x) secured by the related Pari Passu Mortgage on a pari passu basis
with the related Companion Loan, and (y) senior in right of payment to the
related Companion Loan until the date specified in the Pari Passu Intercreditor
Agreement. Each Pari Passu Loan is a "Mortgage Loan".
"PARI PASSU MORTGAGE": The Mortgage(s) securing a Pari Passu Loan and its
related Companion 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 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 Section 7701 of 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) the Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class
H, Class I, Class J, Class K, Class L, Class M and Class N Certificates shall
equal the lesser of (A) the fixed rate corresponding to such Class set forth in
the Preliminary Statement hereto and (B) the NWAC Rate for such Distribution
Date, (iv) the Class F and Class G Certificates shall equal the NWAC Rate for
such Distribution Date and (v) the Class X Certificates shall equal the per
annum rate equal to the quotient of the Accrued Certificate Interest thereon for
such Distribution Date and the Class X Notional Amount.
"PAYING AGENT" means Xxxxx Fargo Bank Minnesota, N.A. 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 and
Companion Loan (including successor REO Mortgage Loans therefor and Defeasance
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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 or Companion Loan immediately before the
Due Date occurring in such month.
"PAYING AGENT FEE RATE" means 0.00195% 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.
"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. (Section) 2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in the
preliminary statement hereto.
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"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.
"PREPAYMENT PREMIUM" means, with respect to any Mortgage Loan or Companion
Loan, the penalty or fee paid or payable (as the context requires) in connection
with a Principal Prepayment and calculated as a percentage of the principal
amount prepaid.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan, Companion
Loan or REO Mortgage Loan, for purposes of performing calculations with respect
to any Distribution Date, the principal balance of such Mortgage Loan, Companion
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 or Companion
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 or Companion Loan
during any related Collection Period. When used with respect to any Loan Pair,
"Principal Balance" means the sum of the Principal Balance of the Pari Passu
Loan and the Principal Balance of the Companion Loan.
"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, Class M and Class N 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 related
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REO Mortgage Loans (but excluding the Scheduled Payments and Assumed Scheduled
Payment for any Companion Loan or its REO Mortgage Loan) 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 or Companion 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 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
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balance of the successor REO Mortgage Loan, 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 and Advance Interest (which have not
been paid by the related Mortgagor or out of Late Fees or default interest paid
by the related Mortgagor) related to such Mortgage Loan and any Special Servicer
Fees paid with respect to the Mortgage Loan and any Liquidation Fee payable to
the Special Servicer upon such repurchase) that are reimbursable or payable
hereunder to the Servicer, the Special Servicer, the Trustee or the Fiscal
Agent.
"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 or
Companion 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, or if
not so rated, then Fitch has issued a Rating Agency Confirmation, and "BBB" by
S&P if rated by S&P or if not rated by S&P, then S&P has issued a Rating Agency
Confirmation, and (ii) with respect to the Servicer Errors and Omissions
Insurance Policy or Servicer Fidelity Bond an insurance company that has a claim
paying ability no lower than two ratings categories (without regard to pluses or
minuses or numerical qualifiers) lower than the highest rating of any
outstanding Class of Certificates from time to time, but in no event lower than
"A" by Fitch if rated by Fitch, or if not so rated, then Fitch has issued a
Rating Agency Confirmation, and "A" by S&P if rated by S&P or if not rated by
S&P, then S&P has issued a Rating Agency Confirmation, or (iii) in either case,
a company not satisfying clause (i) or (ii) but with respect to which Rating
Agency Confirmation is obtained.
"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
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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 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
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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 S&P and Fitch.
"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, with respect to any Mortgage Loan, (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 with respect to any Mortgage Loan. 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, with respect to any Mortgage Loan, (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 the successor REO Mortgage Loan), (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 such
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 Loan that were identified as allocable to
principal, such excess shall be treated as a Realized Interest Loss.
"RECORD DATE" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts recovered with
respect to a Mortgage Loan (other than a Pari Passu Loan), Loan Pair or REO
Property following the period in which a Final Recovery Determination occurs.
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"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 or Companion 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. A
Pari Passu Loan shall not constitute a Rehabilitated Mortgage Loan unless its
related Companion Loan also constitutes a Rehabilitated Mortgage Loan. A
Companion Loan shall not constitute a Rehabilitated Mortgage Loan unless its
related Pari Passu Loan also constitutes a Rehabilitated Mortgage Loan.
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"REMIC" means a real estate mortgage investment conduit within the meaning
of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the Mortgage
Loans (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 (other than the interests of the Companion
Noteholders therein) and any REO Properties (other than the interests of the
Companion Noteholders therein), for which a REMIC election has been made
pursuant to Section 12.1(a) hereof. Excess Interest on
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the Mortgage Loans and the Excess Interest Sub-account shall constitute assets
of the Trust but shall not be a part of any REMIC Pool formed hereunder. Excess
Interest on the Companion Loans shall not constitute an asset of the Trust or
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
per annum rate equal to the product of the following:
(A) twelve; and
(B) the Adjusted Monthly Net Rate for the related Mortgage Loan.
For purposes of this definition the "Adjusted Monthly Net Rate" for a
Mortgage Loan is:
(i) for Distribution Dates occurring in any months other than January,
February or March, (1) for all Mortgage Loans other than Interest Reserve
Loans, one twelfth of the Unadjusted Net Rate and (2) for Interest Reserve
Loans, the Unadjusted Net Rate multiplied by a fraction whose numerator is
the actual number of days in the related Interest Accrual Period and whose
denominator is 360;
(ii) for Distribution Dates occurring in the months of February or
March, one twelfth of the Unadjusted Net Rate; and
(iii) for Distribution Dates occurring in the month of January (a) if
the following February is a month of 28 days, one twelfth of the Unadjusted
Net Rate and (b) if the following February is a month of 29 days, (1) for all
Mortgage Loans other than Interest Reserve Loans, one twelfth of the
Unadjusted Net Rate and (2) for all Interest Reserve Loans, the Unadjusted
Net Rate multiplied by 31/360.
For purposes of this definition, the "Unadjusted Net Rate" for a Mortgage
Loan is the Mortgage Rate (exclusive of any increase in the Mortgage Rate of the
ARD Loan resulting from its failure to repay on its Anticipated Repayment Date)
for such Mortgage Loan as of the Cut-Off Date minus the Administrative Cost
Rate; provided, however, that for purposes of calculating the Class X Strip Rate
and the Class X Interest Amount, the Mortgage Rate of each Mortgage Loan shall
be determined by by giving effect to any reduction in such Mortgage Rate
resulting from any modification, waiver or amendment of the terms of the
Mortgage Loan or otherwise following the Closing Date but in no event (including
in connection with any bankruptcy, insolvency or similar proceeding involving
the related Mortgagor) reducing such rate such that the resulting Net Mortgage
Rate is below the lesser of (x) the original Net Mortgage Rate or (y) the
highest Pass-Through Rate that was in effect on any Class of Principal Balance
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Certificates for purposes of the Distribution Date occurring immediately
following the Collection Period in which such reduction became effective.
"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.
"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
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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.
"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
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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 N" 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 N
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,
REMIC II Regular Interest N 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 N 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 N 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 N Regular Interest.
"REMIC POOL" means each of the three segregated pools of assets designated
as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the
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foregoing may be in effect from time to time and taking account, as appropriate,
of any proposed legislation or regulations which, as proposed, would have an
effective date prior to enactment or promulgation thereof.
"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, Class M and Class N 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.
"REO MORTGAGE LOAN" means a Mortgage Loan or Companion Loan as to which the
related Mortgaged Property is an REO Property.
"REO PROPERTY" means a Mortgaged Property acquired (or, in the case of a
Mortgaged Property securing a Loan Pair, an interest in which has been 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 Advisor (provided that one has been elected pursuant to Section 9.37
of this Agreement) 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 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.
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"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 (other than a Pari Passu
Loan) or any Loan Pair as to which an Appraisal Event has occurred. A Mortgage
Loan or Loan Pair will cease to be a Required Appraisal Loan at such time as
such Mortgage Loan or Loan Pair 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 N, 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, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a Division of The
XxXxxx-Xxxx Companies, Inc., or its successor in interest.
"SCHEDULED PAYMENT" means each scheduled payment of principal of, and
interest on, a Mortgage Loan or Companion Loan required to be paid on its Due
Date by the Mortgagor in accordance with the terms of the related Mortgage Note
or Companion Note (excluding all amounts of principal and interest which were
due on or before the Cut-Off Date, whenever received, and taking account of any
modifications
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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
Companion Loan or successor REO Mortgage Loan for a Mortgage Loan or Companion
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
Companion Loan (or successor REO Mortgage Loan therefor).
"SELLER" means BSF, MSDWMC or Xxxxx Fargo, as the case may be.
"SEMIANNUAL PAY LOAN" means the Mortgage Loan identified on the Mortgage
Loan Schedule by loan number 28983 and secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as "FM Global Headquarters".
"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.
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"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 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 any Mortgage Loan and (if applicable) the related
Companion 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 and
Companion Loan (including REO Mortgage Loans and Defeasance Loans), 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 or
Companion Loan multiplied by the Scheduled Principal Balance of each Mortgage
Loan or Companion Loan immediately before the Due Date occurring in such month,
subject to (except in the case of a Companion Loan or any successor REO Mortgage
Loan therefor) reduction in respect of Compensating Interest, as set forth in
Section 8.10(c).
"SERVICING FEE RATE" means, with respect to each Mortgage Loan (including
any successor REO Mortgage Loan), and each Companion Loan (and any successor REO
Mortgage Loan), the Servicing Fee Rate set forth opposite each such Mortgage
Loan and Companion Loan on the Servicing Fee Rate Schedule attached hereto as
Schedule IV. Each Servicing Fee Rate includes the rate per annum payable to the
applicable Sub-Servicer with respect to the applicable Sub-Servicing Fee.
"SERVICING OFFICER" means any officer or employee of the Servicer involved
in, or responsible for, the administration and servicing of the Mortgage Loans
and Companion 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 or the Special
Servicer, as the case may be, to service and administer the Mortgage Loans and
Companion Loans that it is obligated by this Agreement to service and administer
on behalf of the Trustee and in the best interests of and for the benefit of the
Certificateholders (or in the case of each Companion Loan, on behalf of the
related
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Companion Loan Noteholder) (as determined by the Servicer or the Special
Servicer, as the case may be, in its good faith and reasonable judgment), in
accordance with applicable law, the terms of this Agreement and the terms of the
respective Mortgage Loans or Companions Loans (as the case may be) (and, in the
case of the Companion Loans, the related Pari Passu Intercreditor Agreement),
and to the extent consistent with the foregoing, further as follows: (i) with
the same care, skill, and diligence as is normal and usual in its general
mortgage servicing and REO property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to mortgage
loans and REO properties that are comparable to those for which it is
responsible hereunder, (ii) with a view to the timely collection of all
scheduled payments of principal and interest under the Mortgage Loans and
Companion Loans or, if a Mortgage Loan or Companion Loan comes into and
continues in default and if, in the good faith and reasonable judgment of the
Special Servicer, no satisfactory arrangements can be made for the collection of
the delinquent payments, the maximization of the recovery on such Mortgage Loan
to the Certificateholders (as a collective whole) (or, if a Loan Pair is
involved, the maximization of the recovery on such Loan Pair to the
Certificateholders and the Companion Noteholder), on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate), and (iii)
without regard to any relationship that the Servicer or the Special Servicer, as
the case may be, or any Affiliate of the Servicer or Special Servicer may have
with the related Mortgagor; the ownership of any Certificate (or any mortgage
pass-through certificate evidencing an interest in a Companion Loan) by the
Servicer or Special Servicer or any Affiliate thereof; if the Servicer or
Special Servicer, as the case may be, or any Affiliate thereof owns any Junior
Indebtedness with respect to the Mortgaged Property securing any Mortgage Loan
or Companion Loan, without regard to such ownership; 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; provided, however, that nothing herein contained shall be
construed as an express or implied guarantee by the Servicer or the Special
Servicer of the collectability 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 or the Special Servicer,
including with respect to Servicing Fees or the right to be reimbursed for
Advances.
"SERVICING TRANSFER EVENT" means the occurrence of any of the following
events with respect to any Mortgage Loan or Companion Loan: (i) 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) 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
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law and such decree or order shall have remained undischarged or unstayed for a
period of 60 days; (iii) the Servicer shall have received notice of the
foreclosure or proposed foreclosure of any other lien on the Mortgaged Property;
(iv) 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 or the Companion Noteholder, as the case may
be, and which has occurred and remains unremedied for the applicable grace
period specified in such Mortgage Loan or Companion Loan (or, if no grace period
is specified, 60 days); (v) 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) 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. As to each Loan Pair, after the Companion Loan Earnout Date (if
any) with respect to the related Companion Loan, (a) if a Servicing Transfer
Event occurs with respect to any Pari Passu Loan, it shall be deemed to have
occurred also with respect to its related Companion Loan, and (b) if a Servicing
Transfer Event occurs with respect to a Companion Loan, it shall be deemed to
have occurred also with respect to its related Pari Passu Loan.
"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 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 Workout
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.
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"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 or Companion 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 or Companion 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.
"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 or Companion 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 or Companion loan as reasonably requested by the
Special Servicer to enable it to assume its duties with respect to such Mortgage
Loan or Companion 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 or Companion Loan has become a
Rehabilitated Mortgage Loan with respect to such Servicing Transfer Event,
unless and until the Servicer 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 or Companion 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 or Companion
Loan (including Mortgage Loans and Companion 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.
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"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, Class
M and Class N 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 Regulation 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 (other than a Pari Passu Loan) or Loan Pair issued on
the date of origination of the related Mortgage Loan or Loan Pair.
"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 (other than the interests of the
Companion Noteholders therein), any REO Properties (other than the interests of
the Companion Noteholders therein) 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 on the Mortgage Loans.
"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 and
Companion Loan (including REO Mortgage Loans and Defeasance Loans), the portion
of the Trustee Fee Rate applicable to such month (determined using the same
interest accrual methodology that is applied with respect to the Mortgage Rate
for such Mortgage Loan or Companion Loan for such month) multiplied by the
Scheduled Principal Balance of each Mortgage Loan or Companion 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.
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"TRUSTEE FEE RATE" means with respect to all Mortgage Loans and Companion
Loans, 0.0032% per annum (of which 0.00195% 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 Xxxx
Xxxxxx & Co. Incorporated and Xxxxx Fargo Brokerage Services, L.L.C. 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 United States Person
(other than an estate governed by foreign law and of which at least one executor
or administrator is a non-United States Person who has sole or shared investment
discretion with respect to its assets), (iv) any trust of which any trustee is a
United States Person (other than a trust of which at least one trustee is a
non-United States 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 United States 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-United States Person),
(viii) any partnership or corporation organized or incorporated under the laws
of a foreign jurisdiction and formed by a United States 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 "United States Person" shall not
include (A) a branch or agency of a United States 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.
"UNITED STATES TAX PERSON" means any of (i) a citizen or resident of the
United States, (ii) corporation or partnership organized in or under the laws of
the United States or any political subdivision thereof, (iii) an estate the
income of which is includible
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in gross income for United States tax purposes, regardless of its source or (iv)
a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust, and one or more United States
Tax Persons have the authority to control all substantial decisions of such
trust.
"UNPAID INTEREST" means, on any Distribution Date with respect to any Class
of Interests or Certificates (other than the Residual Certificates), the portion
of Distributable Certificate Interest for such Class remaining unpaid as of the
close of business on the preceding Distribution Date, plus one month's interest
thereon at the applicable Pass-Through Rate other than unpaid interest relating
to Net Aggregate Prepayment Interest Shortfalls.
"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.
"WORKOUT FEE" means a fee payable with respect to any Rehabilitated
Mortgage Loan equal to the product of (x) 1.0% and (y) the amount of each
collection of interest (other than default interest and Excess Interest) and
principal received (including any Condemnation Proceeds received and applied as
a collection of such interest and principal) on such Mortgage Loan or Companion
Loan for so long as it remains a Rehabilitated Mortgage Loan.
"YIELD MAINTENANCE CHARGE": With respect to any Mortgage Loan or Companion
Loan, the yield maintenance charge paid or payable (as the context requires) in
connection with a Principal Prepayment and calculated pursuant to a formula set
forth in the related Mortgage Note or Companion Note intended to result in a
payment to the lender of an amount that is generally equal to (a) the present
value of the remaining interest payments that would have become due had such
Principal Prepayment not occurred to the extent such interest payments would
have accrued at a rate in excess of the specified Yield Rate or (b) the greater
of such present value and a percentage of the principal amount that is prepaid.
"YIELD RATE": With respect to any Mortgage Loan or Companion 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 or
Companion Loan used to determine such Yield Maintenance Charge generally equal
to the rate which, when compounded monthly, is equal to the semi-annual yield
calculated
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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 or Companion 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 or Companion Loan shall be made based upon current information as
to the terms of the Mortgage Loans and Companion Loans and reports of payments
received from the Servicer on such Mortgage Loans and Companion 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
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.
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(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 LOAN. Notwithstanding any provision of this Agreement;
(a) For the 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," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not an asset
of any REMIC Pool.
(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 the 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
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Certificateholders or any other person so long as such determination is based on
such criteria.
SECTION 1.6 ALLOCATIONS IN RESPECT OF LOAN PAIRS.
(a) With respect to each Pari Passu Loan and its related Companion Loan
prior to the Companion Loan Earnout Date (if any) for the related Companion
Loan:
(i) a Servicing Transfer Event shall in no event be construed to have
occurred with respect to such Pari Passu Loan solely on account of the
occurrence of a Servicing Transfer Event with respect to the related
Companion Loan and that such Pari Passu Loan shall not constitute a
Specially Serviced Mortgage Loan unless and until a Servicing Transfer
Event occurs with respect to such Pari Passu Loan without regard to the
circumstances of the related Companion Loan;
(ii) to the extent consistent with the related Mortgage Loan documents
and the related Pari Passu Intercreditor Agreement, all amounts collected
in respect of such Pari Passu Loan, such related Companion Loan or both of
them, whether in the form of payments from the related Mortgagor,
Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds, other
than any proceeds of any draw under the letter of credit securing the
Companion Loan, shall be applied for purposes of this Agreement as follows:
first, as a recovery of any related unreimbursed Servicing Advances and, if
applicable, unpaid Liquidation Expenses; second, as a recovery of accrued
and unpaid interest at the related Mortgage Rate on the Pari Passu Loan
(but not the Companion Loan) to but not including, as appropriate, the date
of receipt or, in the case of a Scheduled Payment, the related Due Date;
third, as a recovery of principal of the Pari Passu Loan then due and owing
under the Pari Passu Loan (but not the Companion Loan), including, by
reason of acceleration of the aggregate indebtedness evidenced by the Pari
Passu Loan and the Companion Loan; fourth, as a recovery of any other
amounts then due and owing under such Mortgage Loan (other than remaining
principal), including any Prepayment Premium or Yield Maintenance Charge,
default interest and Late Fees; fifth, as a recovery of accrued and unpaid
interest at the related Mortgage Rate on the Companion Loan to but not
including, as appropriate, the date of receipt or, in the case of a
Scheduled Payment, the related Due Date; sixth, as recovery of principal of
the Companion Loan then due and owing under the Companion Loan, including,
by reason of acceleration of the aggregate indebtedness evidenced by the
Pari Passu Loan and the Companion Loan; seventh, as a recovery of any other
amounts then due and owing under the Companion Loan (other than remaining
principal), including any Prepayment Premium or Yield Maintenance Charge,
default interest and Late Fees; eighth, as an early recovery of any
remaining principal of the Pari Passu Loan (but not the
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Companion Loan); and ninth, as an early recovery of any remaining principal
of the Companion Loan;
(iii) if the Mortgaged Property securing any Pari Passu Loan and its
related Companion Loan becomes an REO Property at any time prior to the
related Companion Loan Earnout Date, then all collections in respect of
such REO Property (exclusive of amounts to be applied to or escrowed for
the payment of the costs of operating, managing, maintaining and disposing
of such REO Property) shall be applied for purposes of this Agreement as
follows: first, as a recovery of unreimbursed Servicing Advances and, if
applicable, unpaid Liquidation Expenses; second, as a recovery of accrued
and unpaid interest on the Pari Passu Loan (but not the Companion Loan) at
the related Mortgage Rate to but excluding the Due Date in the Collection
Period of receipt; third, as a recovery of principal of the REO Mortgage
Loan that is a successor to the Pari Passu Loan (but not the REO Mortgage
Loan that is a successor to the Companion Loan) to the extent of its entire
unpaid principal balance; fourth, as a recovery of any other amounts deemed
to be due and owing in respect of the REO Mortgage Loan that is a successor
to the Pari Passu Loan (but not the REO Mortgage Loan that is a successor
to the Companion Loan), including any Prepayment Premium or Yield
Maintenance Charge, default interest and Late Fees; fifth, as a recovery of
accrued and unpaid interest on the REO Mortgage Loan that is a successor to
the Companion Loan at the related Mortgage Rate to but excluding the
Collection Period of receipt; sixth, as a recovery of principal of the REO
Mortgage Loan that is a successor to the Companion Loan to the extent of
its entire unpaid principal balance; and seventh, as a recovery of any
other amounts deemed to be due and owing in respect of the REO Mortgage
Loan that is a successor to the Companion Loan, including any Prepayment
Premium or Yield Maintenance Charge, default interest and Late Fees;
(iv) notwithstanding any contrary provision of Section 5.2, with
respect to each Pari Passu Loan, any amounts payable or reimbursable to any
Person (including without limitation Special Servicer Compensation, Advance
Interest and Nonrecoverable Advances[--please no one add to this
list--"any" and "any" should be clear enough--Ed.]) in respect of the Pari
Passu Loan from amounts on deposit in the Certificate Account shall be
payable or reimbursable first from amounts on deposit or credited to the
Companion Loan Custodial Account to the extent of amounts on deposit
therein prior to payment or reimbursement from the remainder of the
Certificate Account; and
(v) the entire amount of any Appraisal Reduction in respect of the
Mortgaged Property or REO Property related to the Loan Pair shall be
allocated, first, to the Companion Loan until the amount required to be
advanced as a P&I Advance on the Companion Loan is reduced to zero
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and second, any remaining portion of such Appraisal Reduction, to the Pari
Passu Loan.
(b) With respect to each Loan Pair after the Companion Loan Earnout Date
(if any) for the Companion Loan included in such Loan Pair, (i) the amount of
Servicing Advances, Advance Interest on Servicing Advances, Nonrecoverable
Servicing Advances, Condemnation Proceeds, Deficient Valuation Amounts, Debt
Service Reductions, Excess Liquidation Proceeds, Insurance Proceeds, Liquidation
Proceeds, Late Fees, Modification Fees, extension fees, assumption fees,
Modification Losses, Bankruptcy Losses, Liquidation Realized Losses and REO
Income for such Loan Pair shall be allocable, as between the related Pari Passu
Loan and the related Companion Loan, pro rata according to their respective
Principal Balances and (ii) for purposes of determining P&I Advances, the
Appraisal Reduction for such Loan Pair shall be allocated between the related
Pari Passu Loan and the related Companion Loan, pro rata according to their
respective Principal Balances.
(c) Notwithstanding any provision of the Agreement to the contrary, prior
to the date, if any, on which the initial Companion Noteholder for any Companion
Loan transfers such Companion Loan to a commercial mortgage trust, the Servicer
shall not be required to make P&I Advances as to such Companion Loan (but this
sentence shall not be construed to limit the obligation of the Servicer to make
any P&I Advances as to the related Pari Passu Loan as may otherwise be required
hereunder, and any related Appraisal Reductions shall be allocated in accordance
with Section 1.6(a)(v) as if P&I Advances were required as to the Companion
Loan).
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 each Pari Passu
Intercreditor Agreement 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.
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In connection with the transfer and assignment of each Pari Passu Loan to
the Trustee, the Depositor does hereby deliver to the Trustee, with a copy to
the Servicer and the Special Servicer, a copy of the related Pari Passu
Intercreditor Agreement, and assigns in trust to the Trustee its rights as
holder of such Pari Passu Loan under the Pari Passu Intercreditor 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.
The parties acknowledge the obligation of each Seller pursuant to Section 2
of the related Mortgage Loan Purchase Agreement to deliver to the Trustee, on or
before the Closing Date, a limited power of attorney in favor of the Trustee and
the Special Servicer to empower the Trustee and, in the event of the failure or
incapacity of
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the Trustee, the Special Servicer, to record any mortgage loan documents
required to be recorded as described in the preceding paragraph and any
intervening assignments with evidence of recording thereon that are required to
be included in the Mortgage Files. The Trustee and each other party hereto
agrees that no such power of attorney shall be used with respect to any Mortgage
Loan by or under authorization by any party hereto except to the extent that the
absence of a document described in the preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the related Seller, but
in no event earlier than 18 months following the Closing Date, and (ii) the date
(if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan.
(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 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, R-2 and R-3 hereto.
(f) Concurrently herewith, the Depositor has acquired the BSF Loans from
BSF, the Xxxxx Fargo Loans from Xxxxx Fargo and the MSDWMC Loans from MSDWMC.
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 MSDWMC to deliver the original Mortgage Notes relating to
the MSDWMC 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 MSDWMC, to effect
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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, MSDWMC 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 MSDWMC Loans shall be deemed to have been transferred from
MSDWMC 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.
(g) In connection with the Depositor's assignment pursuant to Section
2.1(a) above:
(i) the Depositor hereby represents and warrants that it has directed
Xxxxx Fargo, pursuant to Mortgage Loan Purchase Agreement II, to deliver to
and deposit with, or cause to be delivered to and deposited with, the
Trustee on or before the Closing Date the original copy of the Group
Environmental Insurance Policy, and the Trustee, by its execution of this
Agreement, acknowledges receipt of such original copy; and
(ii) the Depositor hereby represents and warrants that it had directed
BSF, pursuant to Mortgage Loan Purchase Agreement I, to deliver to and
deposit with, or cause to be delivered to and deposited with, the Trustee
on or before the Closing Date the original copy of each Individual
Environmental Insurance Policy (in each case as part of the Mortgage File
for the related Mortgage Loan), and the Trustee, by its execution of this
Agreement, acknowledges receipt of each such original copy.
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. To the extent that the contents of
the Mortgage File for any Pari Passu Loan relate to the corresponding Companion
Loan, the Trustee, or the Custodian on the Trustee's behalf, will hold such
Mortgage File in trust for the benefit of the related Companion Noteholder.
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 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
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shall deliver to the Depositor, each Seller (as to its respective Mortgage Loans
only), the Trustee (if there is no Custodian), the Servicer, the Special
Servicer and the Operating Advisor (provided that one has been elected pursuant
to Section 9.37 of this Agreement) 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.
If any exceptions are noted on a schedule of exceptions (if any) attached
to the Final Certification, including exceptions resulting from the fact that
the recordation and/or filing contemplated by Section 2.1(c) has not been
completed (based solely on the absence of receipt by the Custodian (or the
Trustee) of the particular documents showing evidence of the recordation and/or
filing), then the Custodian on behalf of the Trustee (or the Trustee) shall
continuously update such schedule of exceptions to reflect receipt of any
corrected documents, additional documents or instruments or evidences of
recordation and/or filing, as to each Mortgage Loan, until the earliest of the
following dates: (i) the date on which all such exceptions are eliminated (any
such elimination resulting from the fact that recordation and/or filing has been
completed shall be based solely on the receipt by the Custodian or the Trustee
of the particular documents showing evidence of the recordation and/or filing),
(ii) the date on which all the affected Mortgage Loans are removed from the
Trust and (iii) the second anniversary of the Closing Date, and shall provide
such updated schedule of exceptions to each of the Depositor, each Seller (as to
its respective Mortgage Loans only), the Master Servicer, the Special Servicer,
the Operating Advisor (provided that one has been elected pursuant to Section
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9.37 of this Agreement) and the Paying Agent on or about the date that is 150
days after the Closing Date and then again every 90 days thereafter (until the
earliest date specified above). The Paying Agent shall, promptly following its
receipt of any such updated schedule, forward a copy thereof to each
Certificateholder in the Controlling Class and shall deliver or make available a
copy thereof to other Certificateholders pursuant to Section 5.4(d). Promptly,
and in any event within 3 Business Days, following any request therefor by the
Depositor, the Master Servicer, the Special Servicer or the Operating Advisor
(provided that one has been elected pursuant to Section 9.37 of this Agreement)
that is made later than two years following the Closing Date, the Custodian (or
the Trustee) shall deliver an updated schedule of exceptions to the requesting
Person and the Paying Agent, which shall make available a copy thereof pursuant
to Section 5.4(d).
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
indemnification agreement, ground lease, UCC financing statement, guaranty,
written assurance, substitution agreement, lock box agreement, intercreditor
agreement, management agreement or letter of credit.
If, in the course of such review, the 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 paragraph of this Section 2.2, 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 Advisor (provided that one has been elected pursuant to Section 9.37
of this Agreement) 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) with respect to the Final Certification in the second
paragraph of this Section 2.2, 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 clause (D) with respect to the Final
Certification in the second paragraph of this Section 2.2, 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
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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 (a
"Document Defect") 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 regarding the characteristics of the Mortgage Loans and/or
related Mortgage Properties as set forth in the related Mortgage Loan Purchase
Agreements (a "Breach"), and either: (i) the Document Defect or Breach
materially and adversely affects the interests of the Certificateholders in the
related Mortgage Loan, or (ii) both (a) the Document Defect or Breach materially
and adversely affects the value of the Mortgage Loan and (b) the Mortgage Loan
is a Specially Serviced Mortgage Loan or Rehabilitated Mortgage Loan, then in
either case 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 unless, solely
in the case of a Document Defect, (x) the Mortgage Loan is then a Specially
Serviced Mortgage Loan and a Servicing Transfer Event has occurred as a result
of a monetary default or as described in clause (ii) or clause (v) of the
definition of "Servicing Transfer Event" and (y) the Document Defect was
identified in a certification delivered to the Seller by the Trustee
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pursuant to Section 2.2 not less than 90 days prior to the delivery of the
notice of such Document Defect. The parties acknowledge that neither delivery of
a certification or schedule of exceptions to a Seller pursuant to Section 2.2 or
otherwise nor possession of such certification or schedule by the Seller shall,
in and of itself, constitute delivery of notice of any Document Defect or
knowledge or awareness by the Seller of any Document Defect listed therein.
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 or breach and
substitution must occur within the sooner of (i) 90 days from the date the
Seller was notified of the defect or breach or (ii) two years from the Closing
Date.
Notwithstanding the provisions of the final two sentences of the second
preceding paragraph and of the immediately preceding paragraph, in the event of
a Breach of the representation set forth in a Mortgage Loan Purchase Agreement
as to the obligation of a Mortgagor to pay the costs of obtaining any Rating
Agency Confirmation that is required hereunder in connection with an assumption
of the related Mortgage Loan, the sole obligation of the related Seller shall be
to pay an amount equal to such costs to the extent the related Mortgagor is not
required to pay them and such payment shall constitute a cure of such Breach.
Promptly upon receipt of notice of such Breach, the Servicer shall, and the
Special Servicer may, request the related Seller to make such payment by deposit
to the Certificate Account.
If (x) a Mortgage Loan is to be repurchased or replaced as contemplated
above, (y) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans and (z) the applicable Document Defect or
Breach does not materially and adversely affect the interests of the holders of
the Certificates as to such other Mortgage Loans (without regard to this
paragraph), then the applicable Document Defect or Breach shall be deemed to so
materially and adversely affect the interests of the Certificateholders as each
such other Mortgage Loan for purposes of the above provisions and the related
Seller shall be obligated to repurchase or replace each such other Mortgage Loan
in accordance with the provisions above, unless, in the case of a Breach, both
of the following two conditions would be satisfied if the related Seller were to
repurchase or replace only those Mortgage Loans as to which a Breach had
occurred without regard to this paragraph (the "Affected Loan(s)"): (i) the Debt
Service Coverage Ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) for the four
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calendar quarters immediately preceding the repurchase or replacement is not
less than 0.10x below the lesser of (A) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) set forth in Annex A
to the Final Prospectus Supplement and (B) the debt service coverage ratio for
all such Mortgage Loans that are cross-collateralized and cross-defaulted with
one another (including the Affected Loan(s)) for the four preceding calendar
quarters preceding the repurchase or replacement, and (ii) the Loan-to-Value
Ratio for all such other Mortgage Loans (excluding the Affected Loan(s)) is not
greater than 10% more than the greater of (A) the loan-to-value ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) set forth in Annex A
to the Final Prospectus Supplement and (B) the loan-to-value ratio for all such
Mortgage Loans that are cross-collateralized and cross-defaulted with one
another (including the Affected Loan(s)), at the time of repurchase or
replacement. The determination of the Servicer as to whether either of the
conditions set forth above has been satisfied shall be conclusive and binding in
the absence of manifest error. The Servicer will be entitled to, or direct the
related Seller to, cause to be delivered an Appraisal of any or all of the
related Mortgaged Properties for purposes of determining whether the condition
set forth in clause (ii) above has been satisfied, in each case at the expense
of the related Seller if the scope and cost of the Appraisal is approved by the
related Seller (such approval not to be unreasonably withheld).
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 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 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 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
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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 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
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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) MSDWMC,
as Seller under the Mortgage Loan Purchase Agreement III, will be providing the
remedies with respect to the MSDWMC 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
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transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under, (i)
any of the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on the Depositor or its properties; (ii) the certificate
of incorporation or bylaws of the Depositor; or (iii) the terms of any indenture
or other agreement or instrument to which the Depositor is a party or by which
it is bound; neither the Depositor nor any of its Affiliates is a party to,
bound by, or in breach of or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or to the best
knowledge of the Depositor may in the future materially and adversely affect (i)
the ability of the Depositor to perform its obligations under this Agreement or
(ii) the business, operations, financial condition, properties or assets of the
Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the Depositor
and, assuming due authorization, execution and delivery by the other parties
hereto, 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,
and is hereby transferring, 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
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for the REMIC II Interests and (ii) the REMIC II Regular Interests in exchange
for the REMIC III Certificates.
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, Class M and Class N 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 executed by the
Certificate Registrar and 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
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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, Class M and Class N
Certificates, on the Closing Date, the Authenticating Agent upon the order of
the Depositor shall authenticate Book-Entry Certificates that are issued to a
Clearing Agency or its nominee as provided in Section 3.7 against payment of the
purchase price thereof.
SECTION 3.2 REGISTRATION. The 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 Xxxxx Fargo
Center, Sixth Street and Marquette Avenue, 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
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the Certificate to be exchanged at the offices of the Certificate Registrar duly
endorsed or accompanied by a written instrument of exchange duly executed by
such Holder or such Holder's duly authorized attorney in such form as is
satisfactory to the Certificate Registrar. Certificates delivered upon any such
exchange will evidence the same obligations, and will be entitled to the same
rights and privileges, as the Certificates surrendered. No service charge shall
be made to a Certificateholder for any exchange of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) No transfer, sale, pledge or other disposition of any Non-Registered
Certificate or interest therein shall be made unless such transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws, 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)
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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 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 (Section) 2510.3-101), unless, in the case of a Subordinate
Certificate only, either (I) 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 or
(II) such Subordinate Certificate is a Class B, Class C, Class D, Class E, Class
F or Class G Certificate and the transferee delivers or causes to be delivered
to the Paying Agent and the Depositor an opinion of counsel, in form and
substance reasonably satisfactory to the Paying Agent to the effect that, and
any opinions of counsel, officer's certificates or agreements that may be
required by the Depositor to the effect that, the acquisition and holding of
such Certificate will not (a) result in the assets of the Trust being deemed to
be "plan assets" under or subject to the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code or (b) subject the parties to
this Agreement to any obligation in addition to those set forth herein. Any such
Plan or Person who acquires any Subordinate Certificate or interest therein
shall be deemed to have represented to the Certificate Registrar, the Depositor,
the Servicer, the Paying Agent, the Trustee, the Special Servicer, the
Underwriters and
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the Placement Agent that the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the 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.
(i) 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 Tax 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 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.
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(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 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
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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.
(ii) 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
Regulation 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.
(iii) 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
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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 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.
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SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (A) any
mutilated Certificate is surrendered to the Certificate Registrar, or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (B) except in the case of a mutilated
Certificate so surrendered, there is delivered to the Certificate Registrar such
security or indemnity as may be required by it to save it harmless, then, in the
absence of notice to the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and interest in the Trust. In connection with the
issuance of any new Certificate under this Section 3.4, the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Certificate Registrar)
connected therewith. Any replacement Certificate issued pursuant to this Section
3.4 shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a Certificate
for registration of transfer, the Servicer, the Special Servicer, the Fiscal
Agent, the Trustee, the Operating Advisor (provided that one has been elected
pursuant to Section 9.37 of this Agreement), the Paying Agent and any agent of
the Servicer, the Special Servicer, the Fiscal Agent, the Trustee, the Paying
Agent or the Operating Advisor 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
Advisor nor any agent of the Servicer, the Special Servicer, the Fiscal Agent,
the Trustee, the Paying Agent or the Operating Advisor 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 Advisor (provided that one has been elected pursuant to Section
9.37 of this Agreement), 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 Advisor, 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
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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, Class M and Class N Certificates, upon original issuance, each shall
be issued in the form of one or more Certificates representing the Book-Entry
Certificates, to be delivered to the Certificate Registrar, as custodian for The
Depository Trust Company (the "Depository"), the initial Clearing Agency, by, or
on behalf of, the Depositor; provided that, if any Class G, Class H, Class I,
Class J, Class K, Class L, Class M or Class N 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.
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(b) For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Holders of the Certificates
evidencing a specified percentage of the aggregate unpaid principal amount of
Certificates, such direction or consent may be given by the Clearing Agency at
the direction of Certificate Owners owning Certificates evidencing the requisite
percentage of principal amount of Certificates. The Clearing Agency may take
conflicting actions with respect to the Certificates to the extent that such
actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual Certificates)
initially sold in reliance on Rule 144A or to Institutional Accredited Investors
shall be represented by the Rule 144A-IAI Global Certificate for such Class,
which shall be deposited with the Certificate Registrar, as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository. The Certificates evidenced by any Rule 144A-IAI Global Certificate
shall be subject to certain restrictions on transfer as set forth in Section 3.3
hereof and shall bear legend(s) regarding such restrictions described herein.
(d) The Certificates of each Class (other than the Residual Certificates)
initially sold in offshore transactions in reliance on Regulation S shall be
represented by the Regulation S Temporary Global Certificate for such Class,
which shall be deposited with the Certificate Registrar, as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear or Clearstream; provided, however, that such
interests may be exchanged for interests in the Rule 144A-IAI Global Certificate
for such Class in accordance with the certification requirements described in
Section 3.7(f). The Regulation S Permanent Global Certificates shall be
deposited with the Certificate Registrar, as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution Date
occurring prior to the Release Date, each Certificate Owner of a Regulation S
Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear or Clearstream (as applicable) a Regulation S Certificate;
provided, however, that any Certificate Owner that holds a beneficial interest
in a Regulation S Temporary Global Certificate on the Release Date or on any
such Distribution Date that has previously delivered a Regulation S Certificate
to Euroclear or Clearstream with respect to its interest therein does not need
to deliver any subsequent Regulation S Certificate (unless the certificate
previously delivered is no longer true as of such subsequent date, and such
Certificate Owner must promptly notify Euroclear or Clearstream, as applicable,
thereof). Euroclear or Clearstream, as applicable, shall be required to promptly
deliver to the Certificate Registrar a certificate substantially in the form of
Exhibit I hereto to the effect that it has received the requisite Regulation S
Certificates for each such Class, and no Certificate
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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 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).
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(f) Any holder of an interest in a Regulation S Global Certificate shall
have the right, upon prior written notice to the Certificate Registrar,
Euroclear or Clearstream, as applicable, and the Depository, in the form of an
Exchange Certification (substantially in the form of Exhibit H attached hereto),
to exchange all or a portion of such interest (in authorized denominations as
set forth in Section 3.1(b)) for an equivalent interest in the Rule 144A-IAI
Global Certificate for such Class in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in such Rule
144A-IAI Global Certificate as described herein; provided, however, that no
Exchange Certification shall be required if any such exchange occurs after the
Release Date. Any holder of an interest in the Rule 144A-IAI Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
the Depository and Euroclear or Clearstream, as applicable, in the form of an
Exchange Certification, to exchange all or a portion of such interest (in
authorized denominations as set forth in Section 3.1(b)) for an equivalent
interest in the Regulation S Global Certificate for such Class in connection
with a transfer of its interest therein to a transferee that is eligible to hold
an interest in such Regulation S Global Certificate as described herein;
provided, however, that if such exchange occurs prior to the Release Date, the
transferee shall acquire an interest in a Regulation S Temporary Global
Certificate only and shall be subject to all of the restrictions associated
therewith described in Section 3.7(d). Following receipt of any Exchange
Certification or request for transfer, as applicable, by the Certificate
Registrar: (i) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates being exchanged
to reduce the stated principal amount of such Global Certificate by the
denominations of the Certificate or Certificates for which such exchange is to
be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the 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
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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 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
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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. In the case of each Loan Pair, the Servicer shall
notify the Trustee and Fiscal Agent and the related Companion Noteholder by a
certificate of a Servicing Officer delivered on or before each Determination
Date of (i) the amount of any Advances that the Servicer has determined to be
Nonrecoverable Advances for such Loan Pair and the related Collection Period and
the portion thereof that is allocable to the related Companion Loan and (ii) the
aggregate amount of P&I Advances for such Loan Pair for the related Distribution
Date and the portion thereof that is allocable to such Companion Loan. The
information set forth in the preceding sentence of this paragraph shall also be
provided to the Paying Agent on or before each Determination Date.
(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 (or, in the case of a Companion
Loan, the related Companion Loan Custodial Account) being held for future
distributions or withdrawals to make such Advance. The Servicer shall make any
such P&I Advance on a Companion Loan to the related Companion Noteholder. Any
funds being held in the Certificate Account (or a Companion Loan Custodial
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 (or
Companion Loan Custodial Account) on or before any future Servicer Remittance
Date to the extent that funds in the Certificate Account (or Companion Loan
Custodial 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 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
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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.
The initial Trustee's failure to make any Advance required to be made by it
hereunder shall not constitute a default by the initial Trustee hereunder if the
initial Fiscal Agent makes such Advance at or before the time when the Trustee
was required to make such Advance.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.
(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
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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.
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, (i) with respect to any Mortgage Loans or Companion 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 and (ii) in the case of the
Semiannual Pay Loan, any P&I Advance that is made in respect of the interest
portion of a Scheduled Payment prior to the Due Date on which such Scheduled
Payment was due (or, if later, the date on which any applicable grace period for
such Scheduled Payment expires) shall accrue interest from such Due Date (or
such date on which any applicable grace period expires). For purposes of
determining whether a P&I Advance is outstanding, amounts collected with respect
to a particular Mortgage Loan or Companion Loan or a particular 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
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Fees in an amount sufficient to pay Advance Interest from the Mortgagor. The
Servicer shall be entitled to retain Late Fees paid by one or more Mortgagors
with respect to the Mortgage Loans (other than the Specially Serviced Mortgage
Loans, as to which the Special Servicer shall retain Late Fees to the extent set
forth below) as additional servicing compensation to the extent such Late Fees
exceed outstanding and unpaid Advance Interest on Advances previously made in
respect of the Mortgage Loans (other than the Specially Serviced Mortgage
Loans). The Special Servicer, with respect to the Specially Serviced Mortgage
Loans, shall (i) pay from any related Late Fees any and all outstanding and
unpaid Advance Interest on Advances previously made in respect of the Specially
Serviced Mortgage Loans 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 and each Companion Loan relating to a Mortgage
Loan or Specially Serviced Mortgage Loan (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 or Companion Loans relating to Mortgage Loans or Specially Serviced
Mortgage Loans 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 or Companion Loans relating to Mortgage
Loans or Specially Serviced Mortgage Loans, 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 or Companion Loans relating to Mortgage Loans or Specially Serviced
Mortgage Loans, 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 or Companion Loans relating to Mortgage Loans or
Specially Serviced Mortgage Loans, 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 a Companion
Loan relating thereto 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 Agent's and the Trustee's right of reimbursement under
this Agreement for
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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
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(iv) The Fiscal Agent shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of
any applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of
its obligations, or take any corporate action in furtherance of the
foregoing; or
(v) The Fiscal Agent shall cease to be an institution whose long-term
senior unsecured debt is rated not less than "AA" by Fitch and S&P.
SECTION 4.8 PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of termination given to the
Fiscal Agent pursuant to Section 7.6(c), all authority, power and rights of the
Fiscal Agent under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall terminate and a successor Fiscal Agent, if necessary, shall be
appointed by the Trustee, with the consent of the Depositor, provided that the
successor Fiscal Agent satisfies the criteria set forth in Section 7.5. The
Fiscal Agent agrees to cooperate with the Trustee in effecting the termination
of the Fiscal Agent's responsibilities and rights hereunder as Fiscal Agent.
(b) Notwithstanding the termination of its activities as Fiscal Agent, the
terminated Fiscal Agent shall continue to be entitled to reimbursement to the
extent provided in Section 4.6 but only to the extent such reimbursement relates
to the period up to and including the date on which the Fiscal Agent's
termination is effective. The Fiscal Agent shall be reimbursed for all amounts
owed to it hereunder on or prior to the effective date of its termination from
amounts on deposit in the Certificate Account.
SECTION 4.9 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 4.9 shall survive the resignation or removal of
the Fiscal Agent and the termination of this Agreement.
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SECTION 4.10 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 4.10 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 have to indemnification under this Section 4.10, 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.
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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-WF2"
(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), other than in respect of
(x) interest and principal on the Mortgage Loans or Companion Loans due on or
before the Cut-Off Date or (y) that portion of the Scheduled Payment due on the
Semiannual Pay Loan in February 2001 that represents interest accrued on or
before the Cut-off Date, each of which amounts described in the preceding clause
(x) or clause (y) shall be remitted to or at the direction of the Depositor
(provided that, in any event, 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 or
Companion Loans;
(B) Interest: all payments on account of interest, (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
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deposited in the Interest Reserve Sub-account pursuant to Section
5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with respect to
the Mortgage Loans and Companion 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
and Prepayment Premiums, required to deposited in the Certificate
Account pursuant to this Agreement, including Purchase Proceeds of any
Mortgage Loans repurchased by a Seller, substitution shortfall amounts
(as described in the eighth paragraph of Section 2.3(a)) paid by a
Seller in connection with the substitution of any Qualifying Substitute
Mortgage Loans and payments made a Seller in cure of a Breach described
in the third paragraph of Section 2.3(a).
With respect to each Companion Loan, the Master Servicer shall establish
and maintain one or more sub-accounts of the Certificate Account (each a
"Companion Loan Custodial Account") into which the Master Servicer shall deposit
any amounts described above that relate to such Companion Loan (including any
P&I Advances on such Companion Loan), in each case promptly following the
deposit thereof into the Certificate Account. Each Companion Loan Custodial
Account shall be held in trust for the benefit of the related Companion
Noteholder.
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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 (before giving effect to
collections of principal applied and Realized Losses incurred with respect to
such Mortgage Loan), to the extent a Scheduled Payment or P&I Advance is timely
made in respect thereof for such Due Date.
(e) Funds in the Certificate Account (including the Companion Loan
Custodial Accounts) 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 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-WF2". 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
(and, solely to the extent that the loss is of an amount credited to a Companion
Loan Custodial Account, deposit to the Companion Loan Custodial Account), or any
Companion Loan Custodial Account, as the case may be, out of its own funds
immediately as realized. If the Servicer deposits in the Certificate Account or
any Companion Loan Custodial Account, as the case may be, any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Certificate Account or such Companion Loan Custodial Account, as the case
may be, 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
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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, insofar as they relate to a Companion Loan, from the
related Companion Loan Custodial 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 (and, insofar as they relate to a Companion Loan, from the related
Companion Loan Custodial 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 (and, insofar as they relate to a Companion Loan, from
the related Companion Loan Custodial 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 (and, insofar as they relate to a Companion Loan, from the related
Companion Loan Custodial Account) pursuant to clauses (i), (iv), (vi), and (vii)
below of the following amounts, from the amounts specified for the following
purposes:
(i) Fees: the Servicer shall pay (A) to itself Late Fees relating to
Mortgage Loans or Companion Loans which are not Specially Serviced Mortgage
Loans (to the extent the Servicer is entitled to such Late Fees under
Section 4.5), Modification Fees relating to Mortgage Loans or Companion
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 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, and Late Fees
collected on Specially Serviced Mortgage Loans to the extent the Special
Servicer is entitled to such Late Fees under Section 4.5;
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(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): in the case of all Mortgage Loans and Companion
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 Companion Loan or REO Property and not previously reimbursed
(iii) P&I Advances (including amounts later to be determined to be
Nonrecoverable Advances): to apply pursuant to Section 4.6, (x) prior to a
Final Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, payments made by the Mortgagor of the amounts to
which a P&I Advance relates, or REO Income from the related REO Property or
from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or
Purchase Proceeds or (y) after a Final Recovery Determination or
determination in accordance with Section 4.4 that any Advance is a
Nonrecoverable Advance, for any Mortgage Loan or Companion 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 and Companion Loan or REO Property and not previously
reimbursed;
(iv) Servicing Fee and Special Servicer Compensation: (a) to pay to
itself the Servicing Fee (to the extent not previously retained by the
Servicer) subject to reduction for any Compensating Interest with respect
to the servicing of a Mortgage Loan but not a Companion Loan, and (b) to
pay to the Special Servicer the Special Servicing Fee;
(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) or, in the case of Companion
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Loans, amounts that would be Additional Trust Expenses without regard to
the proviso in the first sentence of the definition thereof, to the extent
that, in either case, such payment 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 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 the Certificate Account or any
Companion Loan Custodial Account;
(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;
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Account or any Companion Loan Custodial 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) Companion Loans: to remit from each Companion Loan Custodial
Account to the related Companion Noteholder the amounts that are required
to be paid to its pursuant to the terms of the Companion Loan and the
respective Pari Passu Intercreditor Agreement.
(xiv) Clear and Terminate: to clear and terminate the Certificate
Account pursuant to Section 8.29.
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The Servicer shall keep and maintain a separate accounting for each
Mortgage Loan for the purpose of justifying any withdrawal from the Certificate
Account and each Companion Loan Custodial Account. If the Servicer is entitled
to make any payment or reimbursement described above and such payment or
reimbursement is not limited to a specific source of funds (other than the
requirement that it be made by withdrawal from the Companion Loan Custodial
Account insofar as it relates to a Companion Loan), the Servicer shall, if funds
on deposit in the such Companion Loan Custodial Account are insufficient
therefor, request the Companion Noteholder to make such payment or
reimbursement. If the Companion Noteholder fails to make such payment or
reimbursement within three (3) Business Days following such request, the
Servicer shall be entitled to make such payment or reimbursement from the
Certificate Account unless such payment or reimbursement represents a P&I
Advance that was previously made and constitutes a Nonrecoverable Advance or
accrued and unpaid Advance Interest on such P&I Advance. If such payment or
reimbursement is subsequently recovered from the Companion Noteholder, the
amount recovered shall be deposited into the Certificate Account and shall not
be deposited into the Companion Loan Custodial Account. If the Servicer is
entitled to make any payment or reimbursement described above and such payment
or reimbursement represents a P&I Advance that was previously made and
constitutes a Nonrecoverable Advance or accrued and unpaid Advance Interest on
such P&I Advance, the Servicer shall not be entitled to make such payment or
reimbursement by withdrawal from the Certificate Account and the Trust shall
thereupon be deemed, without any further action or notice, to have transferred
to the Servicer and the Servicer shall thereupon be deemed to own (and to be
entitled to enforce for the Servicer's own account) the obligation of the
Companion Noteholder to make such reimbursement or payment under the related
Pari Passu Intercreditor Agreement.
(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-WF2, Distribution Account" and (ii) an
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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-WF2, 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 pursuant to this Agreement, including P&I Advances on the
Mortgage Loans 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 on the Mortgage Loans 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 Amounts
(other than P&I Advance Amounts for Companion Loans), 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
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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 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 (301)
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.
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(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
Advisor (provided that one has been elected pursuant to Section 9.37 of this
Agreement), 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
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
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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 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. 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
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(iv) thereafter, to the Class R-I Certificateholders.
Section 6.3 REMIC II. 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, REMIC II Regular Interest
N and REMIC II Regular Interest X-1, divided among such REMIC II 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, REMIC II Regular Interest M and REMIC II Regular Interest N,
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, REMIC II Regular Interest M and REMIC II
Regular Interest N, 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
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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 N, 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;
(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
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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;
(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;
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(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;
(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
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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;
(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;
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(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;
(xli) to the REMIC II Regular Interest N, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xlii) upon payment in full of the Certificate Balance of the REMIC
II Regular Interest M, to the REMIC II Regular Interest N, 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, REMIC II Regular Interest L and REMIC II
Regular Interest M), until the Certificate Balance of the REMIC II Regular
Interest N has been reduced to zero;
(xliii) to the REMIC II Regular Interest N, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at the applicable Pass-Through Rate; and
(xliv) thereafter, to the Class R-II Certificateholders.
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;
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(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 (it being acknowledged, in the case of
the Class X Certificates, any reduction in the Notional Amount thereof and
any effect thereof on the Accrued Certificate Interest on such Class shall
not constitute Realized Losses or an allocation of Realized Losses) 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;
(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;
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(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;
(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;
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(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;
(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;
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(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;
(xli) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlii) upon payment in full of the Certificate Balance of the Class M
Certificates, to the Holders of the Class N 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, Class L
and Class M Certificates), until the Certificate Balance of the Class N
Certificates has been reduced to zero;
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(xliii) to the Holders of the Class N Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such
Realized Losses at the Pass-Through Rate; and
(xliv) 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.
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 N Certificates (even if the Certificate Balance of the Class N
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;
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(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.
(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
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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;
(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
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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, REMIC II Regular Interest M and REMIC II Regular Interest N 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.
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
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preceding sentence shall reduce the Distributable Certificate Interest for
such Class for such Distribution Date. No Prepayment Interest Shortfalls or
Balloon Interest Shortfalls with respect to Companion Loans shall be allocated
to any Class of Certificates.
Section 6.7 ADJUSTMENT OF SERVICING FEES. The total Servicing Fee payable
to the Servicer shall be adjusted as provided in Section 8.10(c). Any amount
retained by REMIC I as a result of a reduction of the Servicing Fee shall be
treated as interest collected with respect to the prepaid Mortgage Loans with
respect to which the 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 the related Mortgage Loan or Loan Pair, if the Scheduled Principal
Balance of such Mortgage Loan or Loan Pair exceeds $2,000,000 or (B) at the
option of the Special Servicer, if such Scheduled Principal Balance is less
than or equal to $2,000,000, either an internal valuation prepared by the
Special Servicer in accordance with MAI Standards or an Appraisal which in all
cases shall be completed as of the date that such Mortgage Loan or Loan Pair
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 or Loan Pair 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 or Loan Pair do 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 and
Companion 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
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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; PREPAYMENT PREMIUMS.
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 and Prepayment Premiums 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 and Prepayment Premiums 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 and Prepayment Premiums 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 and
Prepayment Premiums collected with respect to a Mortgage Loan during any
particular Collection Period will be distributed by the Paying Agent to the
Holders of the REMIC Regular Certificates on the following Distribution Date as
follows: The Holders of the respective Classes of Principal Balance
Certificates, other than the Class H, Class I, Class J, Class K, Class L, Class
M and Class N 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. The Holders of the respective
Class of Principal Balance Certificates, other than the Class H, Class I, Class
J, Class K, Class L, Class M and Class N Certificates, then entitled to
distributions of principal from the Principal Distribution Amount for such
Distribution Date (or, if the Holders of more than one of such Classes are so
entitled, pro rata to the Holders of such respective Classes according to the
amount of principal distributable to each such Class) if any, shall be entitled
to an amount equal to 25% of any Prepayment Premiums collected on Principal
Prepayments during the related Collection Period. Any Yield Maintenance Charges
and Prepayment Premiums received during the related Collection Period with
respect to any one or more Mortgage Loans remaining after such distributions
shall be distributed to the Holders of the Class X Certificates. No Yield
Maintenance Charges or Prepayment Premiums shall be distributed to any Holders
of the Class H, Class I, Class J, Class K, Class L, Class M or Class N
Certificates or any Holders of the 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
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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.
(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
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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.
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;
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(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 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;
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(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.
(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
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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 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
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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
short-term debt obligations are at all times rated not less than "A-1" by S&P
and whose long-term senior unsecured debt is at all times rated not less than
"AA" by Fitch and S&P (unless a Fiscal Agent is appointed and acting hereunder
that has a long-term unsecured rating that is at least "AA" (without regard to
any plus or minus) by Fitch and S&P) or otherwise acceptable to the Rating
Agencies as evidenced by a Rating Agency Confirmation. 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 (if rated by Fitch, and if not rated by Fitch, then
otherwise acceptable to Fitch) and S&P, 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
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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 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 Fitch of any Class of Certificates with a rating as evidenced in
writing by Fitch 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
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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 Fitch of any Class of Certificates with a rating as evidenced in
writing by Fitch, 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 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
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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 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
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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 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
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any such jurisdiction, shall be exercised and performed by such separate
trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder;
and
(iv) the Trustee or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Principal Amount of the
Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it
or them, if such resignation or removal does not violate the other terms
of this Agreement.
(d) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the extent
necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the co-trustees,
separate trustees or custodians appointed 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.
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(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 State of New York 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
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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 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
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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, 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
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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 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 (i) if it is unable to so act, or (ii) if the
Trustee is not on S&P's approved servicer list, 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
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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 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.
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(d) Notwithstanding the above, the Trustee (A) may, if the Trustee shall
be unwilling to so act, or (B) shall (i) if it is unable to so act, or (ii) if
the Trustee is not on S&P's approved servicer list, 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 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.
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(a) The Trustee hereby represents and warrants as of the Closing Date
that:
(i) the Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this Agreement have
been duly authorized by all necessary action on the part of the Trustee;
neither the execution and delivery of this Agreement, nor the consummation
of the transactions contemplated in this Agreement, nor compliance with
the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Trustee or its properties that would materially and adversely affect the
Trustee's ability to perform its obligations under this Agreement, (ii)
the organizational documents of the Trustee, or (iii) the terms of any
material agreement or instrument to which the Trustee is a party or by
which it is bound; the Trustee is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency, which default would
materially and adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by the Trustee of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of,
the giving of notice to or the registration with any state, federal or
other governmental authority or agency, except such as has been or will be
obtained, given, effected or taken in order for the Trustee to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms,
subject 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 best of the Trustee's
knowledge, threatened, against it, the outcome of which, in the Trustee's
reasonable judgment, could reasonably be expected to materially and
adversely affect the execution, delivery or enforceability of this
Agreement or to perform any of its obligations hereunder in accordance
with the terms hereof.
(b) The Fiscal Agent hereby represents and warrants as of the Closing Date
that:
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(i) the Fiscal Agent is a foreign banking corporation duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to own
its property, to carry on its business as presently conducted, and to
enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Fiscal Agent of this Agreement
have been duly authorized by all necessary corporate action on the part of
the Fiscal Agent; neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated in this Agreement,
nor compliance with the provisions of this Agreement, will conflict with
or result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Fiscal Agent or its properties that would materially
and adversely affect the Fiscal Agent's ability to perform its obligations
under this Agreement, (ii) the organizational documents of the Fiscal
Agent, or (iii) the terms of any material agreement or instrument to which
the Fiscal Agent is a party or by which it is bound; the Fiscal Agent is
not in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or other
governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Fiscal Agent of
this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or
order of, the giving of notice to, or the registration with, any state,
federal or other governmental authority or agency, except such as has been
obtained, given, effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Fiscal Agent and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid and binding obligation of
the Fiscal Agent, enforceable against the Fiscal Agent in accordance with
its terms, subject 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 best of the Fiscal Agent's
knowledge, threatened, against the Fiscal Agent the outcome of which, in
the Fiscal Agent's reasonable judgment, could reasonably be expected to
materially and adversely 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:
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(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 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 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
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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, if rated by Fitch and "BBB" as rated by S&P, if rated by S&P,
respectively, 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 and the Companion
Loans in accordance with the Servicing Standard and the terms of this
Agreement.
(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 Companion Loan or (y) that a Mortgage Loan or Companion Loan
has become a Rehabilitated Mortgage Loan, which notice shall identify the
applicable Mortgage Loan and, in the case of an event specified in clause (x)
of this subclause (b) above, the Servicing Transfer Event that occurred.
Section 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE 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 (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 and "BBB" as
rated by S&P,
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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.
The Servicer shall service and administer the Mortgage Loans and Companion
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 and, in the
case of any Companion Loan, the Pari Passu Intercreditor Agreement, the Servicer
shall have full power and authority with respect to each Mortgage Loan and
Companion Loan and each Mortgaged Property securing a Mortgage Loan or Companion
Loan (other than any Specially Serviced Mortgaged Loan and the related Mortgaged
Property or any REO Property) to do or cause to be done any and all things that
it may deem necessary or desirable in connection with such servicing and
administration, including but not limited to, the power and authority, subject
to the terms hereof, (A) to execute and deliver, on behalf of the
Certificateholders, the Trustee and each Companion Noteholder or any of them,
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 (if
applicable) Companion 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 and (if applicable)
Companion 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,
the Certificateholders and (if applicable) the Companion Noteholders with
respect to the related Mortgaged Properties, (G) to execute and deliver, on
behalf of the Certificateholders, the Trustee and (if applicable) the Companion
Noteholders, 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 or Companion Loan and related
documents subject to and to the extent permitted by Section 8.18, (I) to
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exercise all rights, powers and privileges granted or provided to the holder of
the Mortgage Notes and (if applicable) Companion Notes under the terms of the
Mortgage, including all rights of consent or approval 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 Companion Loan or of the Mortgaged Property, (L) to execute and
deliver, on behalf of itself, the Trustee, the Trust, the Companion Noteholders
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 or Companion Loans and with respect to the
Mortgaged Properties, and (M) hold in accordance with the terms of any Mortgage
Loan or Companion Loan and this Agreement, Defeasance Collateral.
Notwithstanding the above, the Servicer shall have no power to (i) waive any
Yield Maintenance Charges or Prepayment Premiums or (ii) consent to any
modification of a Money Term of a Mortgage Loan or Companion 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.
(a) The Servicer shall not be obligated to service and administer the
Mortgage Loans or Companion 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 and (if applicable) Companion Loan that becomes a Specially
Serviced Mortgage Loan shall continue as such until such Mortgage Loan and (if
applicable) Companion 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 and (if applicable) its related
Companion Loan or to undertake any pre-foreclosure procedures.
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(b) 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 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, neither
the Servicer nor the Special Servicer shall, without the Trustee's written
consent: (i) initiate any action, suit or proceeding solely under the Trustee's
name without indicating the Servicer's or Special Servicer's, as applicable,
representative capacity, or (ii) take any action which has the effect of causing
the Trustee to be registered to do business in any state.
(c) 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 and Companion Loans (other
than Specially Serviced Mortgage Loans or REO Properties).
(d) The Servicer shall segregate and hold all funds collected and received
pursuant to any Mortgage Loan or Companion 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 and (if applicable)
Companion Loan. Each Escrow Account shall be maintained in accordance with the
requirements of the related Mortgage Loan and (if applicable) Companion 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 or Companion 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 or Companion Loan which
represent late collections of Escrow Amounts thereunder;
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(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and (if
applicable) the related Companion Loan and in accordance with 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 or Companion 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 Companion Loan, or otherwise to the
Servicer; and
(vi) to remove any funds deposited in a Escrow Account that were not
required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding sentence, (i) the 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 Companion 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 or Companion 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 Companion 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
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shall have no liability for any loss in investments of such funds that are
invested pursuant to written instructions from the Mortgagor.
(e) 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.
(f) With respect to each Mortgage Loan or Companion Loan, if required by
the terms of the related Mortgage Loan or Companion 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.
(g) 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 or
Companion Loan, require defeasance of any Mortgage Loan or Companion 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 or Companion 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 and (if applicable) the related Companion Loan (or the portion
thereof in connection with a partial defeasance) in full on or before its
Maturity Date (or, in the case of the 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 or Companion Loan
permit the Servicer to impose the foregoing requirements, no Rating Agency
Confirmation from Fitch is required but the Servicer shall provide notice
thereof to Fitch. Such notice shall be substantially in the form of Exhibit R
hereto. If the terms of the Mortgage Loan or Companion Loan do not permit the
Servicer to impose such requirements, the Servicer shall obtain Rating Agency
Confirmation from Fitch in
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connection with such Defeasance Loan. The Servicer shall not consent to any
defeasance of any Mortgage Loan the Principal Balance of which exceeds the
lesser of one percent (1%) of the Aggregate Certificate Balance or $5 million
unless the Servicer has received a Rating Agency Confirmation from S&P. The
Servicer shall notify S&P of the defeasance of any Mortgage Loan for which a
Rating Agency Confirmation from S&P was not required to be obtained pursuant to
the preceding sentence. Such notice shall be substantially in the form of
Exhibit R hereto. 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.
(h) The Servicer shall, as to each Mortgage Loan and (if applicable) the
related Companion 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 or
Companion 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.
(i) With respect to each Environmentally Insured Mortgage Loan for as long
as it is not a Specially Serviced Mortgage Loan, in the event the Servicer has
actual knowledge of any event giving rise to a claim under an Environmental
Insurance Policy, the Servicer shall notify the Special Servicer to such effect
and the Servicer shall take reasonable actions as are in accordance with the
Servicing Standard and the terms and conditions of such Environmental Insurance
Policy to make a claim thereunder and achieve the payment of all amounts to
which the Trust is entitled thereunder. Any legal fees or other out-of-pocket
costs incurred in accordance with the Servicing Standard in connection with any
such claim shall be paid by, and reimbursable to, the Servicer as a Servicing
Advance.
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 and (if applicable) the related Companion 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 (a) such agreement or
arrangement may be terminated or assumed, without cause and without the payment
of any costs or termination fees, by the Trustee in the event the Servicer is
terminated in accordance with this Agreement and (b) the Sub-Servicer shall not
take any action with respect to the foreclosure of a Mortgaged Property or the
modification of a Mortgage Loan, which action is otherwise able to be taken by
the Servicer in accordance with the terms of this Agreement and is able to be
taken by the Sub-Servicer pursuant to terms of the applicable sub-servicing
Agreement, without obtaining the prior consent of the Servicer or Special
Servicer, as applicable. In addition, neither the Trustee nor the Paying Agent
nor the Certificateholders shall have
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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 and Companion 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 and Companion
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 and Companion 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.
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 and (if applicable) the related
Companion 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 and
(if applicable) the related Companion Loan or (ii) the outstanding principal
balance of such Mortgage Loan and (if applicable) the related Companion 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 or
Companion 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
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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 and (if applicable) Companion 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 and (if applicable) the related Companion 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 and (if applicable) the related Companion 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 or Companion Loan, notwithstanding that the terms
of the Mortgage Loan or Companion 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.
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 and Companion 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 "A" by Fitch and "A" by S&P, self-insures for its obligations
as set forth in the first paragraph of this Section 8.6. In the event that the
Servicer shall cause any Mortgage
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Loan and (if applicable) the related Companion 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 and (if applicable) the related
Companion Loan (i.e., other than any minimum or standby premium payable for such
policy whether or not any Mortgage Loan or Companion 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
Companion Loan or (ii) if there is no deductible limitation required under the
Mortgage Loan or Companion 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 and Companion 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 and (if applicable) the related
Companion 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
Companion 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 and (if applicable) the related Companion
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 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.
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(a) In the event the Servicer receives a request from a Mortgagor pursuant
to the provisions of any Mortgage Loan or Companion 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 or Companion 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 or Companion 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 (if applicable) the related Companion 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.
(b) Other than with respect to the assignment and assumptions referred to
in subsection (a) above, if any Mortgage Loan or Companion 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 or Companion Loan
shall (or may at the mortgagee's option) become due and payable upon the sale of
the related Mortgaged Property, or (ii) provides that such Mortgage Loan or
Companion Loan may not be assumed without the consent of the related mortgagee
in connection with any such sale or
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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 at such time the
Principal Balance of such Mortgage Loan is greater than $2.5 million and
(together with the Principal Balance of all other Mortgage Loans that are
cross-collateralized and cross-defaulted with such Mortgage Loan or have the
same Mortgagor as such Mortgage Loan or Mortgagors who are affiliated with such
Mortgagor under such Mortgage Loan) represents 5% or more of the Aggregate
Certificate Balance, then prior to waiving the effect of such provision, the
Special Servicer shall obtain Rating Agency Confirmation to the effect that such
waiver will not result in the withdrawal, downgrade or qualification (if
applicable) of the then current rating on any Class of Certificates. 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 or
Companion Loan with a "due-on-encumbrance" clause, the Servicer (with respect to
Mortgage Loans and Companion 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. The Special Servicer shall promptly
forward copies of the assignment and assumption documents relating to any
Mortgage Loan or Companion 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.
(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 or Companion 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 or
Companion 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 Loan and Companion 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 or Companion 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 or Companion 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 and Companion 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
or Companion 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.
(g) In no event shall the Servicer enter into an assignment and assumption
with respect to the Mortgage Loan secured by the Mortgaged Properties identified
on the Mortgage Loan Schedule as "Manufactured Home Communities" in the absence
of a Rating Agency Confirmation.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE FILES. Upon
the payment in full of any Mortgage Loan and (if applicable) the related
Companion 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
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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 respect to the Mortgage Loans and
Companion 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 and (if applicable) the
related Companion 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 or Companion 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 to the extent related to the Companion Loans, the Companion Noteholders and
shall be and remain the sole and exclusive property of the Trustee, subject to
the applicable provisions of this Agreement and the rights of the Companion
Noteholders. 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
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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 or
Companion 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.
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.
(a) 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 or other usual and customary charges and fees
actually received from Mortgagors shall be retained by the Servicer, provided
that the Servicer shall be entitled to (i) receive 50% of assumption fees
collected on Mortgage Loans and Companion Loans as provided in Section 8.7(a),
(ii) Modification Fees as provided in Section 8.18 hereof; (iii) 100% of any
extension fees collected from the related Mortgagor in connection with the
extension of the Maturity Date of any Mortgage Loan and (if applicable) the
related Companion Loan as provided in Section 8.18 and (iv) Late Fees to the
extent provided under Section 4.5; 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. 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.
(b) 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.
(c) 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 the 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.
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(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.
(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 and Companion Loans.
The Servicer shall, upon request, deliver to the Rating Agencies, the Trustee,
the Paying Agent, the Operating Advisor (provided that one has been elected
pursuant to Section 9.37 of this Agreement) and the Depositor any such
statements 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 a 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 Companion Noteholder
and the Paying Agent a CMSA Report with respect to the Companion Loan (and, if
applicable, the related REO Property). 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
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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)(i) other than in the case of a hotel property, any one or more tenants
that together represent 25% or more of the space in the related Mortgaged
Property have vacated (without being replaced by one or more comparable tenants
and leases) or are the subject of bankruptcy or similar proceedings or (ii) in
the case of a hotel property, the average daily occupancy rate over a trailing
twelve month period is 25% less than the occupancy rate set forth in Annex A to
the Prospectus Supplement, 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 Advisor (provided that one has been elected pursuant
to Section 9.37 of this Agreement) and agreed to by the Servicer.
(h) If the Servicer delivers a notice of drawing or other instrument to
effect a drawing on any letter of credit or debt service reserve account under
which the Trust has rights as the holder of any Mortgage Loan, the Servicer
shall, within five (5) Business Days following its receipt of the proceeds of
such drawing, deliver notice thereof to the Special Servicer, the Operating
Advisor (provided that one has been elected pursuant to Section 9.37 of this
Agreement) and the Paying Agent, which notice shall set forth (i) the unpaid
principal balance of such Mortgage Loan immediately before and immediately after
the drawing, and (ii) a brief description of the circumstances that in the
Servicer's good faith and reasonable judgment entitled the Servicer to make such
drawing.
(i) The Servicer shall be entitled to make available or cause to be made
available on the internet website of the Servicer or the Paying Agent any report
or other information required to be delivered to any Person under this Section
8.11. The Servicer shall provide all Privileged Persons with access to any such
information that is made available on the Servicer's internet website.
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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 Advisor
(provided that one has been elected pursuant to Section 9.37 of this Agreement)
and the Trustee to the effect that such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans and Companion 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.
The Servicer shall deliver such report upon request to the Trustee, the
Placement Agent, the Underwriter, the Rating Agencies, the Operating Advisor
(provided that one has been elected pursuant to Section 9.37 of this Agreement)
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
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Properties. As and to the extent reasonably requested by the Special Servicer,
the Servicer shall make inquiry of any Mortgagor 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, 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 Loan
and Companion 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 Advisor
(provided that one has been elected pursuant to Section 9.37 of this Agreement),
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, Companion
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
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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 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. Notwithstanding the above, the Servicer
shall not have any liability to the Depositor, the Trustee, the Fiscal Agent,
the Paying Agent, the 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 Companion 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-WF2
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from purchasing or selling such Certificates in circumstances
where the other party to the transaction is not also in
possession of such information. You also acknowledge and
agree that such information is being provided to you for the
purpose of, and such information may be used only in
connection with, evaluation by you or another
Certificateholder, Certificate Owner or prospective purchaser
of such Certificates or beneficial interest therein."
(e) The 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
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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, 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 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 or Companion
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 or Companion 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 or Companion 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, Class M and Class N
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
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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.
(ii) The Servicer may, without the consent of the Special Servicer,
extend the maturity date of any Balloon Mortgage Loan or Companion 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 or Companion Loan. In the
event that the Servicer has granted an extension with respect to a Balloon
Mortgage or Companion Loan in accordance with the preceding sentence, then, on
the 60th day succeeding the date of the extension (regardless of the term of the
extension), if the Balloon Payment is still past due and a Servicing Transfer
Event has not yet occurred, a Servicing Transfer Event shall be deemed to occur
immediately without application of the 60th day provision in clause (i) of the
definition of Servicing Transfer Event. 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 or Companion 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
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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
Companion 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 or
Companion Loan, which notice shall identify the related Mortgage Loan or
Companion 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 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 Closing Date:
(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
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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 to applicable bankruptcy, reorganization, insolvency, moratorium,
receivership and other similar laws affecting creditors' rights generally
as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(iii) the execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance
with the terms and conditions of this Agreement will not (1) result in a
breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a
default under, the terms of any other material agreement or instrument to
which it is a party or by which it may be bound, or any law, governmental
rule, regulation, or judgment, decree or order applicable to it of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects its ability to
perform its obligations under this Agreement;
(iv) no litigation is pending or, to the best of the Servicer's
knowledge, threatened against it, the outcome of which, in the Servicer's
reasonable judgment, could reasonably be expected to 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; and
(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
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licensed in one or more states is not necessary for the performance by it
of its obligations hereunder.
(vi) It is understood that the representations and warranties set forth
in this Section 8.20 shall survive the execution and delivery of this
Agreement.
(vii) 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 and
Companion 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 assumed the Servicer's responsibilities and obligations
under this Agreement and Rating Agency Confirmation with respect to the
appointment of such successor Servicer 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
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resignation and the transfer of servicing; and (iii) Rating Agency Confirmation
with respect to the appointment of such successor Servicer shall have been
obtained, 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 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 and Companion Loans in
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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 (or the interests of the Companion Noteholders in
the Companion 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
(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
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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, the 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 (or Companion 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 Companion 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, the Mortgage Loans or the Companion Loans entitling the Servicer to
indemnification
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hereunder, whereupon the Trustee, on behalf of the Trust, shall assume the
defense of any such claim (with counsel reasonably satisfactory to the 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, the Mortgage Loans or the Companion 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.
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(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 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.
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 under the Exchange Act. The Paying Agent
shall prepare, execute and file on behalf of the Depositor with respect to the
Trust any Forms
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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), (iv) or (v) 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), (vi), (vii) or (viii) 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) (x) 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 (y) any failure of the
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Servicer to make any deposit into the Certificate Account within two
Business Days following the date on which such deposit was required to be
made; or
(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 Fitch that the
continuation of the Servicer in that capacity would result in a withdrawal,
downgrade or qualification (if applicable) of the then current rating
assigned by Fitch to any Class of Certificates; or
(v) the Servicer is removed from S&P's approved servicer list and the
ratings then assigned by S&P to any Class of Certificates are downgraded,
qualified or withdrawn (including, without limitation, being placed on
"negative credit watch") in connection with such removal; or
(vi) 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
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(vii) 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
(viii) 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.
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.
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)(vi),
8.28(b)(vii) or 8.28(b)(viii), 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
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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.
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) or 8.28(b)(v) 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
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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).
ARTICLE IX
ADMINISTRATION AND SERVICING OF
SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
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.
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.
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
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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.
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.
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 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).
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 and "BBB"
as rated by S&P, the Special Servicer may self-insure for the Servicer Fidelity
Bond and the Servicer Error and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the right to use
a Sub-Servicer on the same terms and conditions as those set forth in Section
8.4 for a Sub-Servicer of the 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.
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(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 or Companion Loan. The Trustee shall execute on the Closing Date a
Power of Attorney in the form of Exhibit S-2 hereto and shall furnish the
Special Servicer from time to time, upon request, with any additional powers of
attorney of the Trust, empowering the Special Servicer to take such actions as
it determines to be reasonably necessary to comply with its servicing,
administrative and management duties hereunder, and the Trustee shall execute
and deliver or cause to be executed and delivered such other documents as a
Special Servicing Officer may request, that are necessary or appropriate to
enable the Special Servicer to service, administer and manage the Specially
Serviced Mortgage Loans and carry out its duties hereunder, in each case as the
Special Servicer determines is in accordance with the Servicing Standard and the
terms of this Agreement; provided, that, prior to initiating any proceedings in
any court of law or equity (but not defending any proceedings in any court of
law or equity) or instituting any proceeding to foreclose on any Mortgaged
Property in the name of the Trust in any state, the Special Servicer shall
notify the Trustee in writing and not institute or initiate any such proceedings
for a period of five Business Days from the date of its delivery of such notice
to the Trustee, unless the Special Servicer reasonably believes that such action
should be taken in less than five Business days to preserve the property of the
Trust for the benefit of Certificateholders, and the Trustee may within five
Business Days of its receipt of such notice advise the Special Servicer that it
has received an Opinion of Counsel (the cost of which shall be an expense of the
Trust) from an attorney duly licensed to practice law in the state where the
related Mortgaged Property or REO Property is located, that it is likely that
the laws of the state in which said action is to be taken either prohibit such
action if taken in the name of the Trust or that the Trust would be adversely
affected under the "doing business" or tax laws of such state if such action is
taken in its name; provided, further, that the Special Servicer shall not be
liable to the extent that it relies on the advice provided in such Opinion of
Counsel. Upon receipt of any such advice from the Trustee, the Special Servicer
shall take such action in the name of such Person or Persons, in trust for the
Trust, as shall be consistent with the Opinion of Counsel obtained by the
Trustee. Such Person or Persons shall acknowledge in writing that such action is
being taken by the Special Servicer in the name of the Trust. In the performance
of its duties hereunder, the Special Servicer shall be an independent contractor
and shall not, except in those instances where it is, after notice to the
Trustee as provided above, taking action in the name of the Trust, be deemed to
be the agent of the Trust. The Special Servicer shall indemnify the Trustee for
any loss, liability or reasonable expense (including attorneys' fees) incurred
by the Trustee or any director, officer, employee, agent or Controlling 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
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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
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 Advisor
(provided that one has been elected pursuant to Section 9.37 of this Agreement)
copies of the Inspection Reports relating to such inspections as soon as
practicable after the completion of any inspection.
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION AGREEMENTS;
MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS.
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 Advisor (provided that one has been elected pursuant to
Section 9.37 of this Agreement) 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, or, in the event such Mortgage Loan
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is cross-collateralized and cross-defaulted with one or more other Mortgage
Loans, then if the aggregate Principal Balance of all such Mortgage Loans
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 Fitch and S&P a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. The Special
Servicer shall also prepare and provide Fitch and S&P with such memorandum and
documentation for all transfer, assumption and encumbrance consents granted for
Mortgage Loans below the Review Threshold, but for which the Special Servicer's
decision will be sufficient and a Rating Agency Confirmation is not required. In
connection with the foregoing, the Special Servicer will request that the Rating
Agencies respond in a reasonable period of time. As to any Mortgage Loan or
Companion 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 Advisor (provided that one has been elected
pursuant to Section 9.37 of this Agreement), 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
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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 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 Advisor (provided that one has been elected pursuant to Section
9.37 of this Agreement) 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 or Companion 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 five years, at the existing Mortgage Rate for such
Mortgage Loan or Companion Loan. The preceding sentence does not modify the
limitations of clause (i), (ii) or (iii) of the preceding paragraph.
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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 or
Companion Loan pursuant to Section 9.5(c), if the security interest of the Trust
or Companion Noteholder 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 and
the confirmation of the Rating Agencies with respect thereto (which consent
shall not be unreasonably withheld, delayed or conditioned); provided, however,
that the Trustee shall not be required (but has the option) to consent to any
substitution or addition of collateral or to hold any such collateral which will
require the Trustee to undertake any additional duties or obligations or incur
any additional expense.
(e) The Special Servicer will promptly deliver to the Servicer, the
Operating Advisor (provided that one has been elected pursuant to Section 9.37
of this Agreement), 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 or
Companion 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 (Section) 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 or
Companion 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).
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(g) The Special Servicer shall cooperate with the Servicer (as provided in
Section 8.7) in connection with assignments and assumptions of Mortgage Loans
and Companion 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 Advisor 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 Advisor, 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
or Companion 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 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
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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 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 Advisor
(provided that one has been elected pursuant to Section 9.37 of this Agreement)
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 Advisor'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
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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 Closing Date:
(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 in compliance with the laws of each state in
which any Mortgaged Property (including any REO Property) which is, or is
related to, a Specially Serviced Mortgage Loan is located to the extent
necessary to perform its obligations under this Agreement, except where the
failure to so qualify or comply would not adversely affect the Special
Servicer's ability to perform its obligations hereunder in accordance with
the terms of this Agreement;
(ii) the Special Servicer has the full power and authority to execute,
deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Special Servicer has duly
and validly authorized the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution
and delivery thereof by the Depositor, the Trustee, the 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 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
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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 best of the Special Servicer's
knowledge, threatened, against it, the outcome of which, in the Special
Servicer's reasonable judgment, could reasonably be expected to materially
and adversely affect the execution, delivery or enforceability of this
Agreement or its ability to service the Mortgage Loans or Companion Loans
or to perform any of its other obligations hereunder in accordance with the
terms hereof; and
(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.
(b) It is understood that the representations and warranties set forth in
this Section 9.8 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Special Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon 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 Advisor (provided that one has been elected pursuant to
Section 9.37 of this Agreement) 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
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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 or Companion 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. 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.
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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 Loan and Companion 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 and "A" by S&P or otherwise approved by the Rating
Agencies or (ii) if the Special Servicer, provided that the rating of such
Person's long-term debt is not less than "A" by Fitch and "A" by S&P
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 or
Companion 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
or Companion Loan (i.e., other than any minimum or standby premium payable for
such policy whether or not any Mortgage Loan or Companion 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 Companion Loan or
(ii) if there is no deductible limitation required under the Mortgage Loan or
Companion 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 and
Companion Loans, the Special Servicer agrees to present, on its behalf and on
behalf of the Trustee and the respective Companion Noteholders, claims under any
such master force placed or blanket insurance policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS. The Special
Servicer will prepare and present or cause to be prepared and presented on
behalf of the Trustee all claims under the Insurance Policies with respect to
REO Property, and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
recover under such policies. Any proceeds disbursed to the Special Servicer in
respect of such policies shall be promptly remitted to the Certificate Account,
upon receipt, except for any amounts realized that are to be applied to the
repair or restoration of the applicable REO Property in accordance with the
Servicing Standard.
After the occurrence of any Servicing Transfer Event with respect to any
one or more Environmentally Insured Mortgage Loans that are the subject of any
Environmental Insurance Policy, (i) the Special Servicer shall monitor the dates
by which
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any claim must be made or action must be taken under such Environmental
Insurance Policy to achieve the payment of all amounts thereunder to which the
Trust is entitled in the event the Special Servicer has actual knowledge of any
event giving rise to a claim under such Environmental Insurance Policy (an
"Insured Environmental Event") and (ii) if the Special Servicer has actual
knowledge of an Insured Environmental Event with respect to such Environmentally
Insured Mortgage Loan, the Special Servicer shall take reasonable actions as are
in accordance with the Servicing Standard and the terms and conditions of the
related Environmental Insurance Policy to make a claim thereunder and achieve
the payment of all amounts to which the Trust is entitled thereunder. Any legal
fees or other out-of-pocket costs incurred in accordance with the Servicing
Standard in connection with any such claim shall be paid by, and reimbursable
to, the Servicer as a Servicing Advance.
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 Workout 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, and Condemnation Proceeds received in connection
with, a Specially Serviced Mortgage Loan or REO Property. With respect to each
REO Mortgage Loan that is a successor to a Mortgage Loan secured by two or more
Mortgaged Properties, the reference to "REO Property" in the preceding sentence
shall be construed on a property-by-property basis to refer separately to the
acquired real property that is a successor to each of such Mortgaged Properties,
thereby entitling the Special Servicer to a Liquidation Fee from the Liquidation
Proceeds received in connection with a final disposition of, and Condemnation
Proceeds received in connection with, each such acquired property as the
Liquidation Proceeds related to that property are received. 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 or Companion 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 and Companion 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 and from the related Companion Loan Custodial
Account the Special Servicer Compensation to the extent related solely to a
Companion Loan, all in the time and manner set forth in Section 5.2 of this
Agreement. The Special Servicer
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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 (to the extent provided under
Section 4.5) or other usual and customary charges and fees actually received
from the Mortgagor in connection with any Specially Serviced Mortgage Loan shall
be retained by the Special Servicer, to the extent not required to be deposited
in the Certificate Account pursuant to the terms of this Agreement. The Special
Servicer shall also be permitted to receive 50% of all assumption fees collected
with respect to Mortgage Loans and Companion 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 and Companion Loans that are
Specially Serviced Mortgage Loans as provided in Section 8.7(b). To the extent
any component of Special Servicer Compensation is in respect of amounts usually
and customarily paid by Mortgagors, the Special Servicer shall use reasonable
good faith efforts to collect such amounts from the related Mortgagor, and to
the extent so collected, in full or in part, the Special Servicer shall not be
entitled to compensation for the portion so collected therefor hereunder out of
the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing Standard and
subject to Section 9.4(a), shall use its reasonable efforts to foreclose upon,
repossess or otherwise comparably convert the ownership of Mortgaged Properties
securing such of the Specially Serviced Mortgage Loans as come into and continue
in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments of such Mortgage Loan or Companion Loan, the
sale of such Mortgage Loan or Companion Loan in accordance with this Agreement
or the modification of such Mortgage Loan or Companion 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
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(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 within the past 12 months 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:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental
expert, and taking into account any coverage under any related
Environmental Insurance Policy, 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
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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 and (if applicable) the related Companion Loan, the Special Servicer shall
not attempt to bring such Mortgaged Property into compliance and shall not
acquire title to such Mortgaged Property unless it has received the written
consent of the Trustee to such action.
(f) The Special Servicer shall have the right to determine, in accordance
with the Servicing Standard, the advisability of maintaining any action with
respect to any Specially Serviced Mortgage Loan, including, without limitation,
any action to obtain a deficiency judgment with respect to any Specially
Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains, through
foreclosure on a Mortgage or otherwise, the right to receive title to a
Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine when an
Acquisition Date shall be deemed to occur under the REMIC Provisions with
respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust,
shall sell the REO Property expeditiously, but in any event within the time
period, and subject to the conditions, set forth in Section 9.15. Subject to
Section 9.15, the Special Servicer shall manage, conserve, protect and operate
the REO Property for the holders of beneficial interests in the Trust solely for
the purpose of its prompt disposition and sale.
SECTION 9.14 OPERATION OF REO PROPERTY.
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(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-WF2 [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 (i) 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 and (ii) the Special Servicer shall be
entitled to withdraw from the REO Account and pay to itself as additional
special servicing compensation that portion of such reinvestment income that
exceeds the sum of (A) any and all amounts of Unpaid Interest for any and all
Classes of Certificates (other than the Residual Certificates) as of the close
of business on the Distribution Date occurring in the calendar month preceding
such Special Servicer Remittance Date, and (B) the aggregate amount of Realized
Losses theretofore allocated to any all Classes of Certificates (other than the
Residual Certificates) and not reimbursed to the Holders of such Certificates as
of the close of business on such Distribution Date.
(c) If the Trust acquires the Mortgaged Property, the Special Servicer
shall have full power and authority, in consultation with the Operating Advisor
(provided that one has been elected pursuant to Section 9.37 of this Agreement),
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:
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(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 Regulation 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 Advisor (provided that one has been
elected pursuant to Section 9.37 of this Agreement) and a
Nondisqualification Opinion must be obtained; and
(vi) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
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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 Advisor (provided that one has been
elected pursuant to Section 9.37 of this Agreement), 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
Advisor (provided that one has been elected
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pursuant to Section 9.37 of this Agreement), 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 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 or Companion Loan or the
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.
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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 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 Special Servicer during the preceding calendar year or
portion thereof and of the performance of the Special Servicer under this
Agreement has been made under such officer's supervision and (B) to the best of
such officer's knowledge, based on such review, the Special Servicer has
fulfilled all its obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. The Special Servicer shall forward a copy of each
such statement to the Rating Agencies.
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. On or before
the Report Date occurring in May of each year, commencing in May 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 Advisor (provided that one has been elected pursuant to
Section 9.37 of this Agreement), 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 Companion 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
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the Servicer, the Operating Advisor (provided that one has been elected pursuant
to Section 9.37 of this Agreement), and the Trustee. No such resignation shall
become effective until a successor servicer designated by the Operating Advisor
(provided that one has been elected pursuant to Section 9.37 of this Agreement)
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 Advisor (provided that one has been elected pursuant to Section 9.37
of this Agreement), the Depositor, and the Trustee, and (z) willing to assume
the obligations, responsibilities and covenants to be performed hereunder by the
Special Servicer on substantially the same terms and conditions, and for not
more than equivalent compensation as that herein provided, (ii) the successor
Special Servicer has assets of at least $15,000,000 and (iii) Rating Agency
Confirmation is obtained with respect to such resignation, as evidenced by a
letter from each Rating Agency delivered to the Trustee. Any costs of such
resignation and of obtaining a replacement Special Servicer shall be borne by
the Special Servicer and shall not be an expense of the Trust.
(c) No such resignation under paragraph (b) above shall become effective
unless and until such successor Special Servicer enters into a servicing
agreement with the Trustee assuming the obligations and responsibilities of the
Special Servicer hereunder in form and substance reasonably satisfactory to the
Trustee.
(d) Upon any resignation of the Special Servicer, it shall retain the right
to receive any and all Workout Fees payable in respect of Mortgage Loans that
became Rehabilitated Mortgage Loans during the period that it acted as Special
Servicer and that were still Rehabilitated Mortgage Loans at the time of such
resignation (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until such time (if any) as such
Mortgage Loan again becomes a Specially Serviced Mortgage Loan.
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, subject to the following sentence, 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
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[(i) be effective until Rating Agency Confirmation of such appointment has been
obtained or (ii)] 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 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
Advisor (provided that one has been elected pursuant to Section 9.37 of this
Agreement) 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
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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
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
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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 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
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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.
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
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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 Loan and
Companion Loans (other than payments with respect to REO Income). If, however,
the Special Servicer should receive any payments with respect to any Mortgage
Loan or Companion 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 Companion 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, Companion 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.
(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
Advisor 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
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Trustee, the Servicer, the Fiscal Agent, the Paying Agent or the Depositor
within one (1) Business Day following the date such amount was required to have
been remitted, 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 Fitch
that the continuation of the Special Servicer in that capacity would result in
the withdrawal, downgrade or qualification (if applicable) of the then current
rating assigned by Fitch to any Class of Certificates; (v) the Special Servicer
is removed from S&P's approved Special Servicer list and the ratings then
assigned by S&P to any Class of Certificates are downgraded, qualified or
withdrawn (including, without limitation, being placed on "negative" credit
watch") in connection with such removal; (vi) 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; (vii) 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 (viii) 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.
(c) The Operating Advisor shall have the right to direct the Trustee to
terminate the Special Servicer, provided that the Operating Advisor 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
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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 and subsection (c) below) 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 and subsection (c) below); 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 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, it shall retain the right
to receive any and all Workout Fees payable in respect of Mortgage Loans that
became Rehabilitated Mortgage Loans during the period that it acted as Special
Servicer
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and that were still Rehabilitated Mortgage Loans at the time of such termination
(and the successor Special Servicer shall not be entitled to any portion of such
Workout Fees), in each case until such time (if any) as such Mortgage Loan again
becomes a Specially Serviced Mortgage Loan.
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 or Companion 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, Companion 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 or Companion 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 Date to
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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
Advisor, on or before April 15 of each year, commencing with April 15, 2001, (i)
copies of the prior year operating statements and quarterly statements, if
available, for each Mortgaged Property underlying a Specially Serviced Mortgage
Loan or REO Property as of its fiscal year end, provided that either the related
Mortgage Note or Mortgage requires the Mortgagor to provide such information, or
if the related Mortgage Loan has become an REO Property, (ii) a copy of the most
recent rent roll available for each Mortgaged Property, and (iii) a table,
setting forth the Debt Service Coverage Ratio and occupancy with respect to each
Mortgaged Property covered by the operating statements delivered above.
(f) The Special Servicer shall deliver to the 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 or Companion 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 or Companion Loan becomes a Specially Serviced Mortgage Loan, to
the Servicer its estimate of the net recoverable amount to the
Certificateholders or Companion Noteholders 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.
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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
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 Advisor with respect to the
following matters, the expense of which shall be charged to the Operating
Advisor, 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 Companion 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
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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 or
Companion 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 or
Companion 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 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
Advisor (provided that one has been elected pursuant to Section 9.37 of this
Agreement), 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 Advisor (provided that one has been elected pursuant to Section 9.37
of this Agreement), 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
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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 Advisor (provided that one has been elected pursuant
to Section 9.37 of this Agreement), 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 Advisor
(provided that one has been elected pursuant to Section 9.37 of this Agreement),
if it determines, in accordance with the Servicing Standard, that acceptance of
such bid would be in the best interests of the Certificateholders (for example,
if the prospective buyer making the lower bid is more likely to perform its
obligations, or the terms offered by the prospective buyer making the lower bid
are more favorable), provided, that if any Defaulted Mortgage Loan or REO
Property as to which an Appraisal Reduction has occurred is to be sold by the
Special Servicer, then the Special Servicer shall not, without the approval of
the Operating Advisor (provided that one has been elected pursuant to Section
9.37 of this Agreement), 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 Advisor (provided that one has been elected pursuant to Section 9.37
of this Agreement), 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 Advisor (provided that one has been elected
pursuant to Section 9.37 of this Agreement), 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.
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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 Advisor that would cause it to violate
applicable law or any term or provision of this Agreement, including the REMIC
Provisions and the Servicing Standard.
SECTION 9.37 OPERATING ADVISOR; 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 advisor (the "Operating Advisor"). The
Operating Advisor 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 Advisor also shall be held upon the
resignation or removal of the Person acting as Operating Advisor. After receipt
of notice of such resignation or removal, the Trustee shall call a meeting of
the Holders of the
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Controlling Class. 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 Advisor. At the meeting, each Holder
shall be entitled to nominate one Person to act as Operating Advisor. The
Trustee shall cause the election of the Operating Advisor 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 Advisor. The voting in each
election of the Operating Advisor 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 Advisor. The Paying Agent shall
promptly forward the votes to the Trustee who will establish the identity of the
Operating Advisor. Until an Operating Advisor is elected or in the event that an
Operating Advisor shall have resigned or been removed and a successor Operating
Advisor shall not have been elected, there shall be no Operating Advisor (and
any delivery, consent, consultation or similar requirements herein regarding the
Operating Advisor will be inapplicable until a successor Operating Advisor is
elected).
(d) The Operating Advisor 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 Advisor or no Operating Advisor 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 Advisor 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 Advisor, 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 Advisor.
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SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISOR. The Operating
Advisor 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 Advisor may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that the
Operating Advisor 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 Advisor based upon such special relationship or conflict.
SECTION 9.39 DUTIES OF OPERATING ADVISOR.
(a) The Operating Advisor 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 or Companion
Loan other than a modification consisting of the extension of the original
Maturity Date of a Mortgage Loan or Companion 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 or Companion Loan.
In addition, the Operating Advisor 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
Advisor; 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). Upon any such removal of the Special Servicer, it
shall retain the right to receive any and all Workout Fees payable in respect of
Mortgage Loans that became Rehabilitated Mortgage Loans during the period that
it acted as Special Servicer and that were still Rehabilitated Mortgage Loans at
the time of such removal (and the successor Special Servicer shall not be
entitled to any portion of such Workout Fees), in each case until such time (if
any) as such Mortgage Loan again becomes a Specially Serviced Mortgage Loan.
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(b) The Operating Advisor and any Holder or Certificate Owner of a Class G,
Class H, Class I, Class J, Class K, Class L, Class M or Class N 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 Advisor and the Holders of the Class R-I Certificates. The
Depositor, the Servicer, the Special Servicer, one or more Holders of the
Controlling Class together representing not less than a majority of the
Percentage Interests of the Controlling Class and one or more Holders of the
Class R-I Certificates together representing not less than a majority of the
Percentage Interests of the Class R-I Certificates shall be, in such order of
priority, entitled to 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
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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 its receipt of written notice of an optional termination
pursuant to this paragraph, the Paying Agent on behalf of the Trustee must
provide notice thereof to the Certificateholders and the Rating Agencies. 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 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
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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.
(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
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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, 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.
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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
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.
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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 Advisor, 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.
(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.
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(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.
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
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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, Class L and Class M Certificates, together with the REMIC III Class N
Regular 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 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, or shall otherwise obtain such taxpayer identification number
through an alternate method acceptable to the Internal Revenue Service. 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
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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 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.
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(g) The Paying Agent shall forward to the Depositor copies of quarterly and
annual REMIC tax returns and Internal Revenue Service 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 Internal Revenue Service
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.
(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
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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 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.
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(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 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.
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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; 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
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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 N 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
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
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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 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
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(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: J. Xxxxxxxxxxx
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-WF2; (C) in
the case of the Servicer, Xxxxx Fargo Bank, National Association, 000 Xxxxxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Portfolio Manager
(or, after October 16, 2000, Xxxxx Fargo Bank, National Association, 00 Xxxxxxx
Xxxxxx, 0xx 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, 00xx Xxxxx, 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 Xxxxx
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Xxxxx Xxxx Xxxxxxxxx, X.X., 00000 Broken Land Parkway, Columbia, Maryland
21044-3562, Attention: Corporate Trust Services (CMBS)-Bear Xxxxxxx Commercial
Mortgage Securities Inc., Series 2000-WF2; 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 (A) each Companion Noteholder shall be
a third party beneficiary with respect to its rights specifically enumerated in
this Agreement and (B) each Seller shall be a third party beneficiary of the
agreements set forth in the final sentence of the second paragraph of Section
2.1(c).
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 Advisor (provided that one has been elected pursuant
to Section 9.37 of this Agreement) of the occurrence of any of the following
events of which it has notice:
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(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;
(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
Advisor, 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 Advisor or the Special
Servicer pursuant to Section 7.7 or 7.14 hereof;
(vi) waiver of a due-on-sale clause as provided in Section 8.7;
(vii) waiver of a prohibition on subordinate liens on the Mortgaged
Properties;
(viii) the making of a final payment pursuant to Section 10.3 hereof;
and
(ix) a Servicing Transfer Event.
(b) All notices to the Rating Agencies shall be in writing and sent by
first class mail, telecopy or overnight courier, as follows:
If to S&P, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: CMBS Surveillance Manager
Fax: (000) 000-0000
If to Fitch, to:
Fitch, 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.
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(c) The Trustee, or in the case of clauses (i) and (ii), the successor
trustee shall give prompt notice to the Rating Agencies of the occurrence of any
of the following events:
(i) the resignation or removal of the Trustee pursuant to Section 7.6;
or
(ii) the appointment of a successor trustee pursuant to Section 7.7; or
(iii) the appointment of a successor Operating Advisor 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,
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for the benefit of the Certificateholders, of a security interest in all of the
Depositor's right, title, and interest, whether now owned or hereafter acquired,
in and to:
(i) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the property described in clauses (1)-(4) below:
(1) the Mortgage Loans, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies
identified on the Mortgage Loan Schedule, including all Qualified
Substitute Mortgage Loans, all distributions with respect thereto payable
on and after the Cut-Off Date, and the Mortgage Files; (2) the Distribution
Account, all REO Accounts, and the Certificate Account, including all
property therein and all income from the investment of funds therein
(including any accrued discount realized on liquidation of any investment
purchased at a discount); (3) the REMIC I Regular Interests and 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
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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 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.
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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: By::
----------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx Name: Xxxxxxx X. XxXxxxx
Title: Vice President Title: Vice President
GMAC COMMERCIAL MORTGAGE LASALLE BANK NATIONAL
CORPORATION, as Special Servicer ASSOCIATION, as Trustee
By: By:
----------------------------- ------------------------------
Name: Name:
Title: Title:
ABN AMRO BANK N.V., as Fiscal Agent XXXXX FARGO BANK MINNESOTA,
N.A., as Paying Agent, Certificate
Registrar and Authenticating Agent
By: By:
----------------------------- ------------------------------
Name: Name:
Title: Title:
and
By:
-----------------------------
Name:
Title:
STATE OF NEW YORK
) ss.:
COUNTY OF NEW YORK
On this _____th day of October, 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
XXXXX FARGO BANK MINNESOTA, N.A.
AS PAYING AGENT
-------------------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF OCTOBER 1, 2000
-------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-WF2
--------------------------------------------------------------------------------
EXHIBIT A-1 [FORM OF CLASS A-1 CERTIFICATE] X-0-0
XXXXXXX X-0 [FORM OF CLASS A-2 CERTIFICATE] X-0-0
XXXXXXX X-0 [FORM OF CLASS X CERTIFICATE] X-0-0
XXXXXXX X-0 [FORM OF CLASS B CERTIFICATE] X-0-0
XXXXXXX X-0 [FORM OF CLASS C CERTIFICATE] X-0-0
XXXXXXX X-0 [FORM OF CLASS D CERTIFICATE] X-0-0
XXXXXXX X-0 [FORM OF CLASS E CERTIFICATE] X-0-0
XXXXXXX X-0 [FORM OF CLASS F CERTIFICATE] X-0-0
XXXXXXX X-0 [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 N CERTIFICATE] A-16-1
EXHIBIT A-17 [FORM OF CLASS R-I CERTIFICATE] A-17-1
EXHIBIT A-18 [FORM OF CLASS R-II CERTIFICATE] A-18-1
EXHIBIT A-19 [FORM OF CLASS R-III CERTIFICATE] A-19-1
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
i
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 OF TRANSFEREE CERTIFICATE FOR
TRANSFERS OF INTERESTS IN BOOK-ENTRY PRIVATELY
OFFERED CERTIFICATES D-3A-1
EXHIBIT E-1 FORM OF TRANSFER AFFIDAVIT AND
AGREEMENT FOR TRANSFERS OF REMIC RESIDUAL
CERTIFICATES E-1-1
EXHIBIT E-2 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 SCHEDULE OF MORTGAGE LOANS SUBJECT TO THE GROUP
ENVIRONMENTAL INSURANCE POLICY P-1
EXHIBIT Q SCHEDULE OF MORTGAGE LOANS SUBJECT TO AN INDIVIDUAL
ENVIRONMENTAL INSURANCE POLICY Q-1
EXHIBIT R RESERVED R-1
EXHIBIT S-1 FORM OF POWER OF ATTORNEY FOR SERVICER S-1-1
ii
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
SCHEDULE IV SERVICING FEE SCHEDULE S-IV-1
iii
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 TO 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-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS A-1
CERTIFICATE AS OF THE CLOSING DATE:
$_________________
DATE OF POOLING AND SERVICING SERVICER: XXXXX FARGO BANK, NATIONAL
AGREEMENT: AS OF OCTOBER 1, 2000 ASSOCIATION
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, FISCAL AGENT: ABN AMRO BANK N.V.
2000
AGGREGATE CERTIFICATE BALANCE OF PAYING AGENT: XXXXX FARGO BANK
THE CLASS A-1 CERTIFICATES AS OF THE MINNESOTA, N.A.
CLOSING DATE: $
[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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-1-2
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-WF2 and are
issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certificate belongs, 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 each 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-1-3
allocated to any Class of Certificates will be allocated pro rata among all 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 Pooling and Servicing Agreement.
A-1-4
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 conditions 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.
XXXXX FARGO BANK MINNESOTA, N.A., 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.
XXXXX FARGO BANK MINNESOTA, N.A.,
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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 TO 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-WF2
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS A-2 CERTIFICATE AS OF
DATE OF POOLING AND SERVICING AGREEMENT: AS OF THE CLOSING DATE: $________________
OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: OCTOBER __, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-2 FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATES AS OF THE CLOSING DATE: $_________
PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
[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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-2-2
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-WF2 and are issued in the
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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certificate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-2-3
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.
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
A-2-4
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 conditions 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.
XXXXX FARGO BANK MINNESOTA, N.A., 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.
XXXXX FARGO BANK MINNESOTA, N.A.,
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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 TO 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 OCTOBER __, 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-WF2
INITIAL PASS-THROUGH RATE: _____% AGGREGATE NOTIONAL AMOUNT OF THE CLASS X
CERTIFICATES AS OF THE CLOSING DATE:
$_________________
INITIAL NOTIONAL AMOUNT OF THIS CLASS X SERVICER: XXXXX FARGO BANK, NATIONAL
CERTIFICATE: $______ ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
OCTOBER 1, 2000 CORPORATION
CUT-OFF DATE: OCTOBER 1, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CLOSING DATE: OCTOBER __, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
[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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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.
A-3-3
The Certificates are designated as the Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series 2000-WF2
and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certificate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-3-4
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 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
A-3-5
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 conditions 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.
XXXXX FARGO BANK MINNESOTA, N.A., 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.
XXXXX FARGO BANK MINNESOTA, N.A.,
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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
SECTIONS 2510.3-101), UNLESS EITHER (X) THE PURCHASER OR TRANSFEREE IS AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND
THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (Y) THE PURCHASER
OR TRANSFEREE DELIVERS TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR ANY
OPINIONS OF COUNSEL, OFFICER'S CERTIFICATES OR AGREEMENTS AS MAY BE REQUIRED BY
THE CERTIFICATE REGISTRAR OR THE DEPOSITOR TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA, THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE DEPOSITOR, THE SERVICER OR THE SPECIAL SERVICER TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN, WHICH OPINIONS OF COUNSEL, OFFICER'S CERTIFICATES AND AGREEMENTS SHALL
NOT BE AN EXPENSE OF THE TRUST, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
DEPOSITOR, THE SERVICER OR THE SPECIAL SERVICER. 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 TO 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-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS B CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
OCTOBER 1, 2000 SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS B PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
$
[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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-4-3
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-WF2 and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holder of the Certificates of the Class to
which this Certificate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-4-4
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.
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
A-4-5
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 conditions 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.
XXXXX FARGO BANK MINNESOTA, N.A., 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.
XXXXX FARGO BANK MINNESOTA, N.A.,
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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
SECTIONS 2510.3-101), UNLESS EITHER (X) THE PURCHASER OR TRANSFEREE IS AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND
THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (Y) THE PURCHASER
OR TRANSFEREE DELIVERS TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR ANY
OPINIONS OF COUNSEL, OFFICER'S CERTIFICATES OR AGREEMENTS AS MAY BE REQUIRED BY
THE CERTIFICATE REGISTRAR OR THE DEPOSITOR TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA, THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE DEPOSITOR, THE SERVICER OR THE SPECIAL SERVICER TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN, WHICH OPINIONS OF COUNSEL, OFFICER'S CERTIFICATES AND AGREEMENTS SHALL
NOT BE AN EXPENSE OF THE TRUST, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
DEPOSITOR, THE SERVICER OR THE SPECIAL SERVICER. 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 TO 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-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS C CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS C PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
$
[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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-5-3
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-WF2 and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certificate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-5-4
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.
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
A-5-5
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 conditions 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.
XXXXX FARGO BANK MINNESOTA, N.A., 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.
XXXXX FARGO BANK MINNESOTA, N.A.,
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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
SECTIONS 2510.3-101), UNLESS EITHER (X) THE PURCHASER OR TRANSFEREE IS AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND
THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (Y) THE PURCHASER
OR TRANSFEREE DELIVERS TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR ANY
OPINIONS OF COUNSEL, OFFICER'S CERTIFICATES OR AGREEMENTS AS MAY BE REQUIRED BY
THE CERTIFICATE REGISTRAR OR THE DEPOSITOR TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA, THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE DEPOSITOR, THE SERVICER OR THE SPECIAL SERVICER TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN, WHICH OPINIONS OF COUNSEL, OFFICER'S CERTIFICATES AND AGREEMENTS SHALL
NOT BE AN EXPENSE OF THE TRUST, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
DEPOSITOR, THE SERVICER OR THE SPECIAL SERVICER. 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 TO 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
A-6-2
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-6-3
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS D CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS D PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
$
[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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-6-4
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-WF2 and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certificate belongs 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 each 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 all the outstanding Certificates of such Class.
A-6-5
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.
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
A-6-6
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 conditions 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-6-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A., 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.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
A-6-8
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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-6-9
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-6-10
[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:
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
SECTIONS 2510.3-101), UNLESS EITHER (X) THE PURCHASER OR TRANSFEREE IS AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND
THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (Y) THE PURCHASER
OR TRANSFEREE DELIVERS TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR ANY
OPINIONS OF COUNSEL, OFFICER'S CERTIFICATES OR AGREEMENTS AS MAY BE REQUIRED BY
THE CERTIFICATE REGISTRAR OR THE DEPOSITOR TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA, THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE DEPOSITOR, THE SERVICER OR THE SPECIAL SERVICER TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN, WHICH OPINIONS OF COUNSEL, OFFICER'S CERTIFICATES AND AGREEMENTS SHALL
NOT BE AN EXPENSE OF THE TRUST, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
DEPOSITOR, THE SERVICER OR THE SPECIAL SERVICER. 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 TO 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
A-7-2
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-7-3
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS E CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS E PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
$
[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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-7-4
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-WF2 and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certificate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-7-5
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.
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
A-7-6
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 conditions 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-7-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A., 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.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
A-7-8
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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-7-9
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-7-10
[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:
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
SECTIONS 2510.3-101), UNLESS EITHER (X) THE PURCHASER OR TRANSFEREE IS AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND
THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (Y) THE PURCHASER
OR TRANSFEREE DELIVERS TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR ANY
OPINIONS OF COUNSEL, OFFICER'S CERTIFICATES OR AGREEMENTS AS MAY BE REQUIRED BY
THE CERTIFICATE REGISTRAR OR THE DEPOSITOR TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA, THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE DEPOSITOR, THE SERVICER OR THE SPECIAL SERVICER TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN, WHICH OPINIONS OF COUNSEL, OFFICER'S CERTIFICATES AND AGREEMENTS SHALL
NOT BE AN EXPENSE OF THE TRUST, THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
DEPOSITOR, THE SERVICER OR THE SPECIAL SERVICER. 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 TO 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
A-8-2
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-8-3
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS F CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS F PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
$
[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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-8-4
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-WF2 and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certificate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-8-5
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.
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
A-8-6
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 conditions 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-8-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A., 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.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
A-8-8
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act.......................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
--------------------------------------------------------------------------------
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-8-9
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-8-10
[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:
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
SECTIONS 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 TO 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 OCTOBER __, 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 _______ __, 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
A-9-2
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS
AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) OCTOBER __, 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-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS G CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS G PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
$
[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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-9-4
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-WF2 and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certificate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-9-5
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.
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
A-9-6
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 conditions 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.
XXXXX FARGO BANK MINNESOTA, N.A., 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.
XXXXX FARGO BANK MINNESOTA, N.A.,
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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
SECTIONS 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 TO 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 OCTOBER __, 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 _________ __, 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
A-10-2
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS
AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) OCTOBER __, 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-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS H CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS H PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
$
[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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-10-4
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-WF2 and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which the Certificate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-10-5
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.
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
A-10-6
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 conditions 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.
XXXXX FARGO BANK MINNESOTA, N.A., 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.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
A-10-8
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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-10-9
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-10-10
[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-10-11
EXHIBIT A-11
[FORM OF CLASS I CERTIFICATE]
THIS CLASS I 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
SECTIONS 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 I CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT 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 I 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 TO 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 OCTOBER __, 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 _______ __, 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
A-11-2
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS
AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) OCTOBER __, 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-11-3
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS I CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS I PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
$
[CUSIP NO. __________][CINS NO. __________]
NO. _____
CLASS I 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 I 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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-11-4
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 I Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-WF2 and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certicfiate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-11-5
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.
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
A-11-6
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 conditions 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-11-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:
----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
A-11-8
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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-11-9
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-11-10
[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-11-11
EXHIBIT A-12
[FORM OF CLASS J CERTIFICATE]
THIS CLASS J 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
SECTIONS 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 J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS J CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY TO 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 OCTOBER __, 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 _________ __, 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
A-12-2
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS
AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) OCTOBER __, 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-12-3
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS J CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS J PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
$
[CUSIP NO. __________][CINS NO. __________]
NO. _____
CLASS J 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 J 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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-12-4
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class J Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-WF2 and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certificate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-12-5
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.
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
A-12-6
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 conditions 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-12-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:
----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
A-12-8
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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-12-9
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-12-10
[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-12-11
EXHIBIT A-13
[FORM OF CLASS K CERTIFICATE]
THIS CLASS K 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
SECTIONS 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 K CERTIFICATE IS SUBORDINATED IN RIGHT OR 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 K CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY TO 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 OCTOBER __, 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 _______ __, 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-13-2
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) OCTOBER __, 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-13-3
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS K CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS K PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
$
[CUSIP NO. __________][CINS NO. __________]
NO. _____
CLASS K 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 K 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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-13-4
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class K Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-WF2 and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certificate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-13-5
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.
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
A-13-6
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 conditions 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-13-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:
----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
A-13-8
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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-13-9
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-13-10
[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-13-11
EXHIBIT A-14
[FORM OF CLASS L CERTIFICATE]
THIS CLASS L 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
SECTIONS 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 L CERTIFICATE IS SUBORDINATED IN RIGHT OR 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 L CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY TO 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 OCTOBER __, 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 __________ __, 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-14-2
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) OCTOBER __, 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-14-3
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS L CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS L PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
$
[CUSIP NO. __________][CINS NO. __________]
NO. _____
CLASS L 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 L 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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-14-4
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class L Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-WF2 and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certificate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-14-5
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.
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
A-14-6
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 conditions 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-14-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:
----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
A-14-8
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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-14-9
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-14-10
[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-14-11
EXHIBIT A-15
[FORM OF CLASS M CERTIFICATE]
THIS CLASS M 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
SECTIONS 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 M CERTIFICATE IS SUBORDINATED IN RIGHT OR 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 M CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY TO THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE WILL EVIDENCE
OWNERSHIP OF BOTH A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE AND A RIGHT TO RECEIVE THE EXCESS INTEREST, IF ANY, ON THE ARD LOANS.
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 OCTOBER __, 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 OCTOBER __, 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
A-15-2
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST
HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) OCTOBER __, 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-15-3
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-WF2
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS M CERTIFICATE AS
OF THE CLOSING DATE: $_________________
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER __, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS M PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
$
[CUSIP NO. __________][CINS NO. __________]
NO. _____
CLASS M 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 M 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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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
A-15-4
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class M Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-WF2 and are issued in the 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 all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects 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 for this Certificate and such Distribution Date 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 such Distribution Date to the Holders of the Certificates of the Class to
which this Certificate belongs, 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 each 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 all the outstanding Certificates of such Class.
A-15-5
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.
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
A-15-6
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 conditions 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-15-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:
----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
A-15-8
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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-15-9
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-15-10
[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-15-11
EXHIBIT A-16
[FORM OF CLASS N CERTIFICATE]
THIS CLASS N 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
(SECTION) 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS
GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF
SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED
TRANSACTION
CLASS EXEMPTION 95-60. 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 N CERTIFICATE IS SUBORDINATED IN RIGHT OR 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 N 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 TO THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE WILL EVIDENCE
OWNERSHIP OF BOTH A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE AND A RIGHT TO RECEIVE THE EXCESS INTEREST, IF ANY, ON THE ARD LOANS.
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 OCTOBER 5, 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 _____________, 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 [_____]%.
A-16-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) OCTOBER ___, 2000, THIS CERTIFICATE MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERED 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-16-3
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-WF2
INITIAL PASS-THROUGH RATE: CERTIFICATE BALANCE OF THIS CLASS N CERTIFICATE AS
OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
AGREEMENT: AS OF OCTOBER 1, 2000
CUT-OFF DATE: OCTOBER 1, 2000 SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
CLOSING DATE: OCTOBER__, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE CLASS N PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
CERTIFICATES AS OF THE CLOSING DATE:
CUSIP NO.
NO.
CLASS N 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 N 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 (but not all) of the provisions of which is set forth
hereafter. The assets of the Trust consist 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 to them 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 (as adjusted by the Schedule hereto) by the
aggregate initial Certificate Balance of the CLASS N Certificates. The
Certificates are designated as the Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series 2000-WF2 and are
issued in the 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.
A-16-4
This Certificate does not purport to summarize all the provisions of the
Pooling and Servicing Agreement and reference is made to that Agreement for
information with respect to the interests, rights, benefits, obligations and
duties evidenced hereby and the rights, duties and obligations of the Trustee
and the other parties to the Pooling and Servicing Agreement. This Certificate
is issued under and is subject in all respects 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 for
this Certificate and such Distribution Date 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 such
Distribution Date to the Holders of the Certificates of the Class to which this
Certificate belongs, 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 each 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 all 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
A-16-5
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon the Certificate. The Pooling and Servicing
Agreement also permits the amendment thereof, in certain circumstances, without
the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the Corporate Trust Office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the 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 conditions 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-16-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:
-------------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
-------------------------------------
AUTHORIZED OFFICER
A-16-7
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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-16-8
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-16-9
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-16-10
EXHIBIT A-17
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED TO ANY
PERSON THAT IS 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, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES WITHOUT THE
UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED
STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED
STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-I CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON,
OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-17-2
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF2
PERCENTAGE INTEREST OF THIS CLASS R- SERVICER: XXXXX FARGO BANK, NATIONAL
CERTIFICATE:____% ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: GMAC COMMERCIAL
AGREEMENT: AS OF OCTOBER 1, 2000 MORTGAG CORPORATION
CUT-OFF DATE: OCTOBER 1, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CLOSING DATE: OCTOBER __, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
[CUSIP NO. __________][CINS NO. __________]
NO. _____
CLASS R-I 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 _______________ is the registered owner of
the interest evidenced by this Certificate in the Class R-I Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among 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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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 the Percentage
Interest in the Class R-I Certificates specified on the face hereof. The
Certificates are designated as the Bear Xxxxxxx Commercial Mortgage Securities
Inc. Commercial Mortgage Pass-Through Certificates, Series 2000-WF2 and are
issued in the 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.
A-17-3
This Certificate does not purport to summarize all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive
only certain amounts set forth in the Pooling and Servicing Agreement, including
a distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby after payment to the holders of all classes of
REMIC I Regular Interests of all amounts set forth in the Pooling and Servicing
Agreement. Distributions on this Certificate will be made out of the Available
Distribution Amount, to the extent and subject to the limitations set forth in
the Pooling and Servicing Agreement, on the 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
The 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
Class R-I 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
A-17-4
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.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the 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 conditions
A-17-5
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-17-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:
----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
A-17-7
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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-17-8
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-17-9
EXHIBIT A-18
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED TO ANY
PERSON THAT IS 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, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE THIS CERTIFICATE.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES WITHOUT THE
UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED
STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED
STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON,
OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-II CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-18-2
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF2
PERCENTAGE INTEREST OF THIS CLASS R-I SERVICER: XXXXX FARGO BANK, NATIONAL
CERTIFICATE:____% ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: GMAC COMMERCIAL
AGREEMENT: AS OF OCTOBER 1, 2000 MORTGAG CORPORATION
CUT-OFF DATE: OCTOBER 1, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CLOSING DATE: OCTOBER __, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
[CUSIP NO. __________][CINS NO. __________]
NO. _____
CLASS R-II 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 _______________ is the registered owner of
the interest evidenced by this Certificate in the Class R-II Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among 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 (but not all) of the provisions of which is set
forth hereafter. The assets of the Trust consist 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 to them 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 the Percentage
Interest in the Class R-II Certificates specified on the face hereof. The
Certificates are designated as the Bear Xxxxxxx Commercial Mortgage Securities
Inc. Commercial Mortgage Pass-Through Certificates, Series 2000-WF2 and are
issued in the 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.
A-18-3
This Certificate does not purport to summarize all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive
only certain amounts set forth in the Pooling and Servicing Agreement, including
a distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby after payment to the holders of all classes of
REMIC II Regular Interests of all amounts set forth in the Pooling and Servicing
Agreement. Distributions on this Certificate will be made out of the Available
Distribution Amount, to the extent and subject to the limitations set forth in
the Pooling and Servicing Agreement, on the 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
The 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
Class R-II 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
A-18-4
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.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the 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 conditions
A-18-5
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-18-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:
----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
A-18-7
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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-18-8
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-18-9
EXHIBIT A-19
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED TO ANY
PERSON THAT IS 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, OR
ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND
BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET
FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY
STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY
OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF
ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD
OF DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES WITHOUT THE
UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED
STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED
STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-III CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON,
OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF
THIS
A-19-2
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-19-3
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF2
PERCENTAGE INTEREST OF THIS CLASS R-II SERVICER: XXXXX FARGO BANK, NATIONAL
CERTIFICATE:____% ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: GMAC COMMERCIAL
AGREEMENT: AS OF OCTOBER 1, 2000 MORTGAG CORPORATION
CUT-OFF DATE: OCTOBER 1, 2000 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CLOSING DATE: OCTOBER __, 2000 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: NOVEMBER 15, 2000 PAYING AGENT: XXXXX FARGO BANK MINNESOTA, N.A.
[CUSIP NO. __________][CINS NO. __________]
NO. _____
CLASS R-III 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 _______________ is the registered owner of
the interest evidenced by this Certificate in the Class R-III 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 (but not all) of the provisions of which
is set forth hereafter. The assets of the Trust consist 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 to them 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 the Percentage
Interest in the Class R-III Certificates specified on the face hereof. The
Certificates are designated as the Bear Xxxxxxx Commercial Mortgage Securities
Inc. Commercial Mortgage Pass-Through Certificates, Series 2000-WF2 and are
issued in the 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.
A-19-4
This Certificate does not purport to summarize all the
provisions of the Pooling and Servicing Agreement and reference is made to that
Agreement for information with respect to the interests, rights, benefits,
obligations and duties evidenced hereby and the rights, duties and obligations
of the Trustee and the other parties to the Pooling and Servicing Agreement.
This Certificate is issued under and is subject in all respects to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive
only certain amounts set forth in the Pooling and Servicing Agreement, including
a distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby after payment to the holders of all classes of
REMIC III Regular Interests of all amounts set forth in the Pooling and
Servicing Agreement. Distributions on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
The 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
Class R-III 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
A-19-5
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.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the 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 conditions
A-19-6
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-19-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A., as
Certificate Registrar
By:
----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
A-19-8
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
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
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-19-9
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-19-10
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
October __, 2000
Bear Xxxxxxx Commercial Mortgage Securities Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
GMAC Commercial Mortgage Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-WF2
-------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the
Pooling and Servicing Agreement, the undersigned hereby certifies that, with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject
to the exceptions noted in the schedule of exceptions attached hereto, that: (a)
all documents specified in clause (i) of the definition of "Mortgage File" are
in its possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan and each Mortgage Note has been
endorsed as provided in clause (i) of the definition of "Mortgage File" of the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any such
documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor
has granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular
Interests.
B-1-1
Capitalized words and phrases used herein and not otherwise
defined herein shall have the respective meanings assigned to them in the
Pooling and Servicing Agreement. This Certificate is subject in all respects to
the terms of said Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Name:
Title:
B-1-2
SCHEDULE OF EXCEPTIONS
B-1-3
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
-------- ---, ----
Bear Xxxxxxx Commercial Mortgage Securities Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-WF2
-------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the
Pooling and Servicing Agreement, the undersigned hereby certifies that, with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject
to the exceptions noted in the schedule of exceptions attached hereto, that: (a)
all documents required to be included in the Mortgage File pursuant to clauses
(i), (ii), (iii) and (ix) of the definition of "Mortgage File," and any
documents required to be included in the Mortgage File pursuant to all other
clauses of the definition of "Mortgage File," to the extent the Trustee has
received written notification by the Depositor or the Servicer that such
documents are required by the related Mortgage Loan, are in its possession, (b)
such documents have been reviewed by it and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (c) based on its examination and only as to the
Mortgage Note and the Mortgage, the loan number, the street address of the
Mortgaged Property and the name of the borrower set forth in the Mortgage Loan
Schedule accurately reflects the information contained in the documents in the
Mortgage File, and (d) each Mortgage Note has been endorsed and each Assignment
of Mortgage has been delivered as provided in the definition of "Mortgage File"
contained in the Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File or any of
the Trustee Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
The Trustee acknowledges receipt of notice that the Depositor
has granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular
Interests.
B-2-1
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
This Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Name:
Title:
B-2-2
SCHEDULE OF EXCEPTIONS
B-2-3
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle Bank National Association, as Trustee
Corporate Trust Xxxxxx
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2000-WF2
-------------------------------------------------------------
Date:
----------------
In connection with the administration of the Mortgage Loans
held by you as Trustee under the Pooling and Servicing Agreement dated as of
October __, 2000 by and among Bear Xxxxxxx Commercial Mortgage Securities Inc.,
as Depositor, Xxxxx Fargo Bank, National Association, as Servicer, GMAC
Commercial Mortgage Corporation, as Special Servicer, LaSalle Bank National
Association, as Trustee, ABN AMRO Bank N.V., as Fiscal Agent and Xxxxx Fargo
Bank Minnesota, N.A., as Paying Agent (the "Pooling and Servicing Agreement"),
the undersigned hereby requests a release of the Trustee Mortgage File held by
you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The [Servicer][Special Servicer] hereby certifies
that all amounts received in connection with the
Mortgage Loan have been or will be, following the
[Servicer's][Special Servicer's] release of the
Trustee Mortgage File, credited to the Certificate
Account or the Distribution Account pursuant to the
Pooling and Servicing Agreement.)
_____ 2. Mortgage Loan repurchased.
(The [Servicer][Special Servicer] hereby certifies
that the Purchase Price has been credited to the
Distribution Account pursuant to the Pooling and
Servicing Agreement.)
_____ 3. Mortgage Loan substituted.
C-1
(The [Servicer][Special Servicer] hereby certifies
that a Qualifying Substitute Mortgage Loan has been
assigned and delivered to you along with the related
Trustee Mortgage File pursuant to the Pooling and
Servicing Agreement.)
_____ 4. The Mortgage Loan is being foreclosed.
_____ 5. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage
File will be held by the undersigned in accordance with the provisions of the
Pooling and Servicing Agreement and will be returned to you, except if the
Mortgage Loan has been paid in full, repurchased or substituted for by a
Qualifying Substitute Mortgage Loan (in which case the Trustee Mortgage File
will be retained by us permanently), when no longer required by us for such
purpose).
Capitalized terms used herein shall have the meanings ascribed
to them in the Pooling and Servicing Agreement.
Name of [Servicer][Special Servicer]
By:
--------------------------------
Name:
Title:
X-0
XXXXXXX X-0
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-WF2, Class _ (the "Certificates")
------------------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of [Class ___ Certificates having an initial principal balance as
of October [____], 2000 (the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred Certificates"). The
Transferred Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of October __, 2000,
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, National Association, as Servicer, GMAC
Commercial Mortgage Corporation, as special servicer, LaSalle Bank National
Association, as trustee, ABN AMRO Bank N.V., as fiscal agent and Xxxxx Fargo
Bank Minnesota, N.A., as paying agent. All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Certificate or any other
similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate,
any interest in any Transferred Certificate or any other similar
security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or
(e) taken any other action, which (in the case of any of the acts
described in clauses (a) through (e) hereof) would constitute a
distribution of any Transferred Certificate under the Securities Act of
1933,
D-1-1
as amended (the "Securities Act"), or would render the disposition of
any Transferred Certificate a violation of Section 5 of the Securities
Act or any state securities laws, or would require registration or
qualification of any Transferred Certificate pursuant to the
Securities Act or any state securities laws.
Very truly yours,
--------------------------------
(Transferor)
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
D-2-2
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services-Bear Xxxxxxx Commercial
Mortgage Securities Inc., Series 2000-WF2
--------------------------------------------------------------
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
Norwest Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)-Bear Xxxxxxx Commercial Mortgage
Securities Inc., Series 2000-WF2
----------------------------------------------------------------
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-WF2 (the "Certificates")
---------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of Class ______ Certificates [having an initial Certificate
Principal Balance as of October [___], 2000 (the "Closing Date") of
[$__________] [evidencing a ____% Percentage Interest in the related Class] (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of October __, 2000 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc.,
D-2A-1
as depositor (the "Depositor"), Xxxxx Fargo Bank, National Association, as
Servicer, GMAC Commercial Mortgage Corporation, as special servicer, LaSalle
Bank National Association, as trustee, ABN AMRO Bank N.V., as fiscal agent and
Xxxxx Fargo Bank Minnesota, N.A., as paying agent. All capitalized terms used
but not otherwise defined herein shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act") and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee
is aware that the sale to it of the Transferred Certificates is being
made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of a
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a Qualified Institutional Buyer that
purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Transferred Certificates and distributions thereon,
(b) the nature, performance and servicing of the Mortgage Loans, (c)
the Pooling and Servicing Agreement, and (d) any credit enhancement
mechanism associated with the Transferred Certificates, that it has
requested.
Very truly yours,
--------------------------------
(Transferor)
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
D-2A-2
ANNEX 1 TO EXHIBIT D-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor"), and for the benefit of the Depositor, the
Trustee and the Certificate Registrar, with respect to the commercial mortgage
pass-through certificate being transferred (the "Transferred Certificate") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $______________________ (must be at least $100,000,000 unless the
Transferee is a broker-dealer, in which case the minimum is $10,000,000) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation
(other than a bank, savings and loan association or
similar institution), Massachusetts or similar
business trust, partnership, or any organization
described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a
banking institution organized under the laws of any
State, U.S. territory or the District of Columbia,
the business of which is substantially confined to
banking and is supervised by the State or territorial
banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a date not more than 16 months preceding the date of
sale of the Certificate in the case of a U.S. bank,
and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and
loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
any such institutions or is a foreign savings and
loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a
D-2A-3
date not more than 16 months preceding the date of
sale of the Certificate in the case of a U.S. savings
and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and
loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act
of 1934, as amended, acting for its own account or
the accounts of other qualified institutional buyers
or acting in a riskless principal transaction on
behalf of a qualified institutional buyer.
___ Insurance Company. The Transferee is an insurance
company whose primary and predominant business
activity is the writing of insurance or the
reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the
insurance commissioner or a similar official or
agency of a State, U.S. territory or the District of
Columbia.
___ State or Local Plan. The Transferee is a plan
established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit
of its employees.
___ ERISA Plan. The Transferee is an employee benefit
plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act
of 1940, as amended.
___ Other. (Please supply a brief description of the
entity and a cross-reference to the paragraph and
subparagraph under subsection (a)(1) of Rule 144A
pursuant to which it qualifies. Note that registered
investment companies should complete Annex 2 rather
than this Annex 1.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
D-2A-4
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the cost
of those securities has been published, in which case the securities were valued
at market. Further, in determining such aggregate amount, the Transferee may
have included securities owned by subsidiaries of the Transferee, but only if
such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting principles
and if the investments of such subsidiaries are managed under the Transferee's
direction. However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee may be in reliance on
Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
-------------------------------
Print Name of Transferee
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Date:
--------------------------
D-2A-5
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificate being transferred (the
"Transferred Certificates") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Certificates (the "Transferee") or, if the Transferee
is a "qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933, as amended ("Rule 144A") because the Transferee is
part of a Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule 144A
because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$____________ (must be at least $100,000,000) in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $_________ (must be at least $100,000,000) in
securities (other than the excluded securities referred to below) as
of the end of the Transferee's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
D-2A-6
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the parties to
which this certification is being made are relying and will continue to rely on
the statements made herein because one or more sales to the Transferee will be
in reliance on Rule 144A.
___ __ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where the
Transferee is purchasing for an account other than its own, such account belongs
to a third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice, the
Transferee's purchase of the Transferred Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
-----------------------------------
Print Name of Transferee or Adviser
By:
--------------------------------
Name:
Title:
IF AN ADVISER:
-----------------------------------
Print Name of Transferee
Date:
------------------------------
D-2A-7
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services-Bear Xxxxxxx Commercial
Mortgage Securities Inc., Series 2000-WF2
--------------------------------------------------------------
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
Norwest Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)-Bear Xxxxxxx Commercial Mortgage
Securities Inc., Series 2000-WF2
----------------------------------------------------------------
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-WF2 (the "Certificates")
---------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _______________________ (the "Transferor") to
_______________________________ (the "Transferee") of Class ___ Certificates
[having an initial Certificate Principal Balance as of October [___], 2000 (the
"Closing Date") of $__________][evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates"). The Certificates, including the
Transferred Certificates, were issued pursuant to the Pooling and Servicing
Agreement, dated as of October __, 2000 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, National
D-2B-1
Association, as Servicer, GMAC Commercial Mortgage Corporation, as special
servicer, LaSalle Bank National Association, as trustee, ABN AMRO Bank N.V., as
fiscal agent and Xxxxx Fargo Bank Minnesota, N.A., as paying agent. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is acquiring the Transferred Certificates
for its own account for investment and not with a view to or for sale or
transfer in connection with any distribution thereof, in whole or in part, in
any manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificates belong has not been and will
not be registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class of
Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant any
applicable state securities laws or (ii) sold or transferred in transactions
which are exempt from such registration and qualification and the Certificate
Registrar has received either: (A) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
D-1 to the Pooling and Servicing Agreement and a certificate from such
Certificateholder's prospective transferee substantially in the form attached
either as Exhibit D-2A or as Exhibit D-2B to the Pooling and Servicing
Agreement; or (C) an opinion of counsel satisfactory to the Certificate
Registrar with respect to the availability of such exemption from registration
under the Securities Act, together with copies of the written certification(s)
from the transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate except in compliance with the
provisions of Section 3.3 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that each Transferred Certificate will
bear the following legends:
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
D-2B-2
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 (IN THE CASE OF
THE INITIAL SALE OR TRANSFERS TO PURCHASERS WHO TAKE IN DEFINITIVE
FORM) 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 SECTIONS 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.
4. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any Transferred
Certificate, any interest in any Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Certificate, any interest in any Transferred Certificate or any
other similar security by means of general advertising or in any other manner,
or (e) taken any other action with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security, which (in
the case of any of the acts described in clauses (a) through (e) above) would
constitute a distribution of the Transferred Certificates under the Securities
Act, would render the disposition of the Transferred Certificates a violation of
Section 5 of the Securities Act or any state securities law or would
D-2B-3
require registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (d) the nature, performance and servicing of the Mortgage
Loans, and (e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in
any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
---------------------------
(Transferee)
By:
-------------------------
Name:
-----------------------
Title:
----------------------
D-2B-4
EXHIBIT D-3A
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-WF2, Class _ (the "Certificates")
------------------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _____________ ________ (the "Transferor") to ______________________
(the "Transferee") of a Certificate (the "Transferred Certificate") having an
initial principal balance as of October [___], 2000 (the "Closing Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of October __, 2000,
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, National Association, as Servicer, GMAC
Commercial Mortgage Corporation, as special servicer, LaSalle Bank National
Association, as trustee, ABN AMRO Bank N.V., as fiscal agent and Xxxxx Fargo
Bank Minnesota, N.A., as paying agent. All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, and
for the benefit of the Depositor, the Certificate Registrar and the Trustee,
that:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"), and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Certificate for its own account or
for the account of a qualified institutional buyer, and understands that such
Certificate or any interest therein may be resold, pledged or transferred only
(i) to a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the Securities Act.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificate belongs have not been and will
not be registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Certificates
and (c) no interest in the Certificates may be sold or transferred unless (i)
such Certificates are registered pursuant to the Securities Act and registered
or qualified pursuant to any applicable state securities laws or (ii) such
interest sold or transferred in transactions which are exempt from
D-3A-1
such registration and qualification and the Certificate Owner desiring to effect
such transfer has received either (A) a certification from such Certificate
Owner's prospective transferee (substantially in the form attached to the
Pooling and Servicing Agreement) setting forth the facts surrounding the
transfer or (B) an opinion of counsel satisfactory to the Certificate Registrar
with respect to the availability of such exemption, together with copies of the
certification(s) from the transferor and/or transferee setting forth the facts
surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or
otherwise transfer any portion of its interest in the Transferred Certificate
except in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that the
Transferred Certificate will bear legends substantially to the following effect:
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.
-AND-
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED (IN THE CASE OF
THE INITIAL SALE OR TRANSFERS TO PURCHASERS WHO TAKE IN DEFINITIVE
FORM) UNLESS THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (A)
AN INVESTMENT REPRESENTATION LETTER FROM THE PROPOSED PURCHASER OR
TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT SUCH
PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
D-3A-2
("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 SECTIONS 2510.3-101), OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR (B) IF SUCH
CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON
DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH
CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT
IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE
PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
PAYING AGENT, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION
OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE
SET FORTH IN THE POOLING AND SERVICING AGREEMENT. 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 MADE
THE FOREGOING REPRESENTATIONS.
D-3A-3
4. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and Servicing
Agreement, and (d) any credit enhancement mechanism associated with the
Transferred Certificate, that it has requested.
Very truly yours,
---------------------------
(Transferee)
By:
-------------------------
Name:
-----------------------
Title:
----------------------
D-3A-4
ANNEX 1 TO EXHIBIT D-3A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor"), and for the benefit of the Depositor, the
Trustee and the Certificate Registrar, with respect to the commercial mortgage
pass-through certificate being transferred (the "Transferred Certificate") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $______________________ (must be at least $100,000,000 unless the
Transferee is a broker-dealer, in which case the minimum is $10,000,000) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation
(other than a bank, savings and loan association or
similar institution), Massachusetts or similar
business trust, partnership, or any organization
described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a
banking institution organized under the laws of any
State, U.S. territory or the District of Columbia,
the business of which is substantially confined to
banking and is supervised by the State or territorial
banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a date not more than 16 months preceding the date of
sale of the Certificate in the case of a U.S. bank,
and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and
loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
any such institutions or is a foreign savings and
loan association or equivalent institution and (b)
has an
D-3A-5
audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as
of a date not more than 16 months preceding the date
of sale of the Certificate in the case of a U.S.
savings and loan association, and not more than 18
months preceding such date of sale for a foreign
savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act
of 1934, as amended, acting for its own account or
the accounts of other qualified institutional buyers
or acting in a riskless principal transaction on
behalf of a qualified institutional buyer.
___ Insurance Company. The Transferee is an insurance
company whose primary and predominant business
activity is the writing of insurance or the
reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the
insurance commissioner or a similar official or
agency of a State, U.S. territory or the District of
Columbia.
___ State or Local Plan. The Transferee is a plan
established and maintained by a State, its political
subdivisions, or any agency or instrumentality of
the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit
plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act
of 1940, as amended.
___ Other. (Please supply a brief description of the
entity and a cross-reference to the paragraph and
subparagraph under subsection (a)(1) of Rule 144A
pursuant to which it qualifies. Note that registered
investment companies should complete Annex 2 rather
than this Annex 1.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
D-3A-6
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the cost
of those securities has been published, in which case the securities were valued
at market. Further, in determining such aggregate amount, the Transferee may
have included securities owned by subsidiaries of the Transferee, but only if
such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting principles
and if the investments of such subsidiaries are managed under the Transferee's
direction. However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee may be in reliance on
Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
---------------------------
Print Name of Transferee
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Date:
-----------------------
D-3A-7
ANNEX 2 TO EXHIBIT D-3A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor"), and for the benefit of the Depositor, the
Certificate Registrar and the Trustee, with respect to the commercial mortgage
pass-through certificate being transferred (the "Transferred Certificate") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), because
the Transferee is part of a Family of Investment Companies (as defined below),
is an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and (ii) as
marked below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For purposes
of determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities was
used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a
discretionary basis $___________________ (must be at
least $100,000,000) in securities (other than the
excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment
Companies which owned in the aggregate
$______________ (must be at least $100,000,000) in
securities (other than the excluded securities
referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
D-3A-8
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificate will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
-------------------------------------
Print Name of Transferee or Adviser
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
IF AN ADVISER:
--------------------------------
Print Name of Transferee
Date:
--------------------------------
D-3A-9
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says
that:
1. He/She is the ____________________ of ____________________
(the prospective transferee (the "Transferee") of Bear Xxxxxxx Commercial
Mortgage Securities Inc., Mortgage Pass-Through Certificates, Series 2000-WF2,
Class [R-I] [R-II] [R-III], evidencing a ____% Percentage Interest in such Class
(the "Residual Certificates")), a ________________ duly organized and validly
existing under the laws of ____________________, on behalf of which he/she makes
this affidavit. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement pursuant to which the Residual Certificates were issued (the "Pooling
and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will
be, a "Permitted Transferee" and will endeavor to remain a "Permitted
Transferee" for so long as it holds the Residual Certificates, and (ii) is
acquiring the Residual Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Permitted Transferee" is any
Person other than a "disqualified organization" or a possession of the United
States. (For this purpose, a "disqualified organization" means the United
States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income.
3. The Transferee is aware (i) of the tax that would be
imposed on transfers of the Residual Certificates to "disqualified
organizations" under the Code that applies to all transfers of the Residual
Certificates; (ii) that such tax would be on the transferor or, if such transfer
is through an agent (which Person includes a broker, nominee or middleman) for a
non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such Person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such Person does not have actual
knowledge that the affidavit is false; and (iv) that the Residual Certificates
may be a "noneconomic residual interest" within the meaning of Treasury
regulation Section 1.860E-1(c) and that the transferor of a "noneconomic
residual interest" will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
is to enable the transferor to impede the assessment or collection of tax.
E-1-1
4. The Transferee is aware of the tax imposed on a
"pass-through entity" holding the Residual Certificates if at any time during
the taxable year of the pass-through entity a non-Permitted Transferee is the
record holder of an interest in such entity. (For this purpose, a "pass-through
entity" includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will
not register any transfer of the Residual Certificates by the Transferee unless
the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
_________________.
8. The Transferee has reviewed the provisions of Section
3.3(e) of the Pooling and Servicing Agreement, a description of which provisions
is set forth in the Residual Certificates (in particular, clause (ii)(F) of
Section 3.3(e) which authorizes the Paying Agent or the Trustee to deliver
payments on the Residual Certificate to a Person other than the Transferee and
clause (ii)(G) of Section 3.3(e) which authorizes the Trustee to negotiate a
mandatory sale of the Residual Certificates, in either case, in the event that
the Transferee holds such Residual Certificates in violation of Section 3.3(e));
and the Transferee expressly agrees to be bound by and to comply with such
provisions.
9. No purpose of the Transferee relating to its purchase or
any sale of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of
the transferor that the Transferee intends to pay any taxes associated with
holding the Residual Certificates as they become due, fully understanding that
it may incur tax liabilities in excess of any cash flows generated by the
Residual Certificates.
11. To the extent that the Transferee has asserted that it
regularly borrows, in the ordinary course of its trade or business, substantial
funds from unrelated third parties at a lower interest rate than the applicable
Federal rate as of the date hereof prescribed by section 1274(d) of the Internal
Revenue Code of 1986, the transactions in which the Transferee has borrowed such
funds, the interest rate or rates charged by the unrelated third party lenders,
the date or dates of such transactions, and the maturity dates or, in the case
of adjustable rate debt instruments, the relevant adjustment dates or periods,
with respect to such borrowings are accurately stated in Exhibit A to this
letter.
12. The Transferee is a citizen or resident of the United
States, a corporation, a partnership or other entity created or organized in, or
under the laws of, the United States or
E-1-2
any political subdivision thereof, or an estate or trust whose income from
sources without the United States is includable in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States.
E-1-3
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, pursuant to the authority of its Board of
Directors, by its ____________________ and its corporate seal to be hereunto
attached this day of ___________, ____.
[NAME OF TRANSFEREE]
By:
------------------------
[Name of Officer]
[Title of Officer]
E-1-4
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On before me,
-------------- ------------------------------------
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared
-------------------------------------------------------
Name(s) of Document Signer(s)
---------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Signature of Notary
(Affix seal in the above blank space)
E-1-5
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
-------- --, -----
Xxxxx Fargo Bank Minnesota, N.A.,
as Certificate Registrar
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)-Bear Xxxxxxx Commercial Mortgage
Securities Inc., Series 2000-WF2
----------------------------------------------------------------
cc: LaSalle Bank National Association, as Trustee
Corporate Trust Xxxxxx
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2000-WF2 (the "Certificates")
---------------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of [Class R-I] [Class R-II] [Class R-III] Certificates evidencing
a ____% Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of October __, 2000 (the "Pooling and
Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc.,
as Depositor, Xxxxx Fargo Bank, National Association, as Servicer, GMAC
Commercial Mortgage Corporation, as Special Servicer, LaSalle Bank National
Association, as Trustee, ABN AMRO Bank N.V., as Fiscal Agent and Xxxxx Fargo
Bank Minnesota, N.A., as Paying Agent. All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement. The Transferor does not know or believe that
any representation contained therein is false.
E-2-1
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
---------------------------
(Transferor)
By:
-------------------------
Name:
-----------------------
Title:
----------------------
E-2-2
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2000-WF2, Class ___ (the "Certificates")
TO: [_______________________]
of New York, Brussels Office
Euroclear Operation Center
or
Clearstream Banking, societe anonyme
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Certificates held by you or on your behalf
for our account are beneficially owned by (a) non -U.S person(s) or (b) U.S.
person(s) who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Certificates held by you or on your behalf for our account in accordance
with your operating procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________
of such beneficial interest in the above Certificates in respect of which we are
not able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
F-1
We understand that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification to any interested party in such
proceedings.
Dated:
----------------------
By:
----------------------------------------
As, or as agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
F-2
EXHIBIT G
RESERVED
G-1
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
[Date]
TO: The Depository Trust Company
Clearstream Banking, S. A. or
[ ]
-----------------------
of New York, Brussels Office
Euroclear Operation Center
Xxxxx Fargo Bank, National Association, as Servicer
LaSalle Bank National Association, as Trustee
Xxxxx Fargo Bank Minnesota, N.A., as Certificate Registrar
Attn: Corporate Trust Services (CMBS)
This is to notify you as to the transfer of the beneficial
interest in $_______________ of Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 2000-WF2, Class __(the
"Certificates").
The undersigned is the owner of a beneficial interest in the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and requests that on [INSERT DATE], (i) [Euroclear] [Clearstream] [DTC] debit
account #__________, with respect to $__________ principal denomination of the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and (ii) [DTC] [Euroclear] [Clearstream] credit the beneficial interest of the
below-named purchaser, account #__________, in the Class __ [Rule 144A-IAI
Global Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer I D. No.:
The undersigned hereby represents that this transfer is being
made in accordance with an exemption from the provisions of Section 5 of the
United States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or
H-1
(7) of Regulation D of the 1933 Act][an institutional "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the
1933 Act and in accordance with any applicable securities laws of any state of
the United States and, if the purchaser has purchased the Certificates for one
or more accounts for which it is acting as fiduciary or agent, each such account
is a qualified institutional buyer or an institutional "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the
1933 Act] and that the purchaser is acquiring beneficial interests in the
applicable Certificate1 for its own account or for one or more institutional
accounts for which it is acting as fiduciary or agent in a minimum amount
equivalent to not less than U.S. $100,000 and integral multiples of U.S. $1 in
excess thereof for each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By:
----------------------------
[Name], [Chief Financial
or other Executive Officer]
----------
1 [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE FOREGOING
REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON ANY TRANSFER
OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN GLOBAL FORM.]
H-2
EXHIBIT I
FORM OF EUROCLEAR OR CLEARSTREAM CERTIFICATE
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2000-WF2, CLASS ___ (THE "CERTIFICATES")
TO: Xxxxx Fargo Bank Minnesota, National Association, as Certificate Registrar
Attn: Corporate Trust Services (CMBS) -
Bear Xxxxxxx Commercial Mortgage Securities Inc., Series 2000-WF2
LaSalle Bank National Association, as Trustee
Attn: Asset-Backed Securities Trust Services Group -
Bear Xxxxxxx Commercial Mortgage Securities Inc., Series 2000-WF2
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of October __, 2000 (the "Pooling and Servicing
Agreement") among you both, GMAC Commercial Mortgage Corporation, ABN AMRO Bank
N.V. and Xxxxx Fargo Bank, National Association, U.S. $__________ principal
amount of the above-captioned Certificates held by us or on our behalf are
beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased
the Certificates in transactions that did not require registration under the
United States Securities Act of 1933, as amended (the "Securities Act"). As used
in this paragraph, the term "U.S. person" has the meaning given to it by
Regulation S under the Securities Act.
We further certify that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such Member Organizations with respect to any
interest in the Certificates identified above are no longer true and cannot be
relied upon as of the date hereof.
[On Release Date: We hereby acknowledge that no portion of the
Class __ Regulation S Temporary Global Certificate shall be exchanged for an
interest in the Class __ Regulation S Permanent Global Certificate (as each such
term is defined in the Pooling and Servicing Agreement) with respect to the
portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
I-1
We understand that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification to any interested party in such
proceedings.
Dated:
[ ]
-----------------------
Brussels office,
as operator of the Euroclear
System]
or
[CLEARSTREAM BANKING, S.A.]
By:
-----------------------
I-2
EXHIBIT J
RESERVED
J-1
EXHIBIT K
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION
[Date]
[If to the Servicer:
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 0xx 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]
[If to 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]
[If to the Trustee or Fiscal Agent:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services-
Bear Xxxxxxx Commercial Mortgage Securities
Inc., Series 2000-WF2]
[If to the Paying Agent:
Xxxxx Fargo Bank Minnesota, N.A.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)-
Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Series 2000-WF2]
RE: BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-WF2
------------------------------------------------------------
K-1
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of October __, 2000 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, National Association, as servicer, GMAC
Commercial Mortgage Corporation, as special servicer, LaSalle Bank National
Association, as trustee (the "Trustee"), ABN AMRO Bank N.V., as fiscal agent,
and Xxxxx Fargo Bank Minnesota, N.A., as paying agent with respect to the
Commercial Mortgage Pass-Though Certificates, Series 2000-WF2 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
The undersigned is a beneficial owner or prospective purchaser
of the Class Certificates and if the undersigned is a prospective purchaser of
Non-Registered Certificates (as defined in the Pooling and Servicing Agreement),
the undersigned is either (i) an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs or (ii) a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act").
The undersigned is requesting (Please check as applicable):
(i) ____ the information (the "Information")
identified on the schedule attached hereto
pursuant to Section 9.39 of the Pooling and
Servicing Agreement; or
(ii) ____ a password pursuant to Section _____ of
the Pooling and Servicing Agreement for
access to information (also, the
"Information") provided on the Paying
Agent's Website.
In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in evaluating
its interest in Certificates, from its accountants and attorneys, and otherwise
from such governmental or banking authorities to which the undersigned is
subject), and such Information will not, without the prior written consent of
the Trustee, be disclosed by the undersigned or by its officers, directors,
partners, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part; provided that
the undersigned may provide all or any part of the Information to any other
person or entity that holds or is contemplating the purchase of any Certificate
or interest therein, but only if such person or entity confirms in writing such
ownership interest or prospective ownership interest and agrees to keep it
confidential.
The undersigned will not use or disclose the information in
any manner which could result in a violation of any provision of the Securities
Act of 1933, as amended, (the "Securities Act"), or the Securities Exchange Act
of 1934, as amended, or would require registration of any Certificate pursuant
to Section 5 of the Securities Act.
K-2
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
[BENEFICIAL HOLDER OF A CERTIFICATE]
By:
------------------------------------
Name:
Title:
Company:
Telephone Number:
K-3
EXHIBIT L
FORM OF INSPECTION REPORT
================================================================================================================
XXXXX FARGO
COMMERCIAL MORTGAGE SERVICING
ANNUAL PROPERTY EVALUATION REPORT - OFFICE/RETAIL/IND. Report Date: Lender No:
================================================================================================================
-----------------------------------------------------------
WFRF File No:
-----------------------------------------------------------
Property Address:
-----------------------------------------------------------
Property Type:
-----------------------------------------------------------
Primary Use:
-----------------------------------------------------------
Secondary Use:
-----------------------------------------------------------
Other Use:
-----------------------------------------------------------
Current Occupancy:
-----------------------------------------------------------
Building Size Net:
-----------------------------------------------------------
No. Of Buildings:
-----------------------------------------------------------
No. Of Units:
-----------------------------------------------------------
================================================================================================================
Year Built: Managed by:
----------------------------------------------------------------------------------------------------------------
Year Renovated: Phone:
----------------------------------------------------------------------------------------------------------------
Land Size: On-Site:
================================================================================================================
================================================================================================================
----------------------------------------------------------------------------------------------------------------
Date of Property Inspection: Inspected by:
----------------------------------------------------------------------------------------------------------------
Date Reviewed: Reviewed by:
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Condition of the Property (Attach Photographs - Exterior, Interior and Neighboring: Properties):
------------------------------------------------------------------------------------------------
Deferred
Exterior Excellent Good Fair Poor Maintenance
--------
Landscaping [ ] [ ] [ ] [ ] [ ]
Paved Areas [ ] [ ] [ ] [ ] [ ]
L-1
Sidewalks [ ] [ ] [ ] [ ] [ ]
Exterior Finish [ ] [ ] [ ] [ ] [ ]
Roof [ ] [ ] [ ] [ ] [ ]
General Maintenance [ ] [ ] [ ] [ ] [ ]
================================================================================
Comments (explain deferred maintenance):
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
X-0
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXX XXXXX
Commercial Mortgage Servicing
ANNUAL PROPERTY EVALUATION REPORT - OFFICE/RETAIL/IND. Report Date: Lender No:
================================================================================================================
-----------------------------------------------------------
WFRF File No:
-----------------------------------------------------------
Property Address:
-----------------------------------------------------------
Property Type:
-----------------------------------------------------------
Primary Use:
-----------------------------------------------------------
Secondary Use:
-----------------------------------------------------------
Other Use:
-----------------------------------------------------------
Current Occupancy:
-----------------------------------------------------------
Building Size Net:
-----------------------------------------------------------
No. Of Buildings:
-----------------------------------------------------------
No. Of Units:
-----------------------------------------------------------
================================================================================================================
Year Built: Managed by:
----------------------------------------------------------------------------------------------------------------
Year Renovated: Phone:
----------------------------------------------------------------------------------------------------------------
Land Size: On-Site:
================================================================================================================
================================================================================================================
----------------------------------------------------------------------------------------------------------------
Date of Property Inspection: Inspected by:
----------------------------------------------------------------------------------------------------------------
Date Reviewed: Reviewed by:
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Condition of the Property (Attach Photographs - Exterior, Interior and Neighboring: Properties):
------------------------------------------------------------------------------------------------
Deferred
Exterior Excellent Good Fair Poor Maintenance
--------
Landscaping [ ] [ ] [ ] [ ] [ ]
Paved Areas [ ] [ ] [ ] [ ] [ ]
Sidewalks [ ] [ ] [ ] [ ] [ ]
Exterior Finish [ ] [ ] [ ] [ ] [ ]
Roof [ ] [ ] [ ] [ ] [ ]
L-3
General Maintenance [ ] [ ] [ ] [ ] [ ]
--------------------------------------------------------------------------------
Comments (explain deferred maintenance):
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
X-0
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXX XXXXX
Commercial Mortgage Servicing
Annual Property Evaluation Report - Multifamily Report Date: Lender No:
================================================================================================================
-----------------------------------------------------------
WFRF File No:
-----------------------------------------------------------
Property Address:
-----------------------------------------------------------
Property Type:
-----------------------------------------------------------
Primary Use:
-----------------------------------------------------------
Secondary Use:
-----------------------------------------------------------
Other Use:
-----------------------------------------------------------
Current Occupancy:
-----------------------------------------------------------
Occupancy Type:
-----------------------------------------------------------
Building Size Net Rentable: s/f
-----------------------------------------------------------
No. Of Buildings:
-----------------------------------------------------------
No. Of Apt. Units:
-----------------------------------------------------------
===========================================================
--------------------------------------------------------------------------------------------------------------
Apt Unit Breakdown:
Studio # Rent 1 BR # Rent 2 BR # Rent
------ ------ ------ ------ ------ ------
3 Br # Rent Other # Rent Description:
------ ------ ------ ------ ---------------
--------------------------------------------------------------------------------------------------------------
Year Built:
--------------------------------------------------------------------------------------------------------------
Year Renovated: Offsite Management:
--------------------------------------------------------------------------------------------------------------
Land Size: Phone:
---------------------------------------------------------------- -------------------------------------------
# of Parking Spaces: Covered Uncovered On-Site Contact:
--------------------------------------------------------------------------------------------------------------
==============================================================================================================
Date of Property Inspection: Inspected by:
--------------------------------------------------------------------------------------------------------------
Date Reviewed: Reviewed by:
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
Condition of the Property (Attach Photographs - Exterior, Interior and Neighboring Properties):
-----------------------------------------------------------------------------------------------
Exterior Excellent Good Fair Poor
--------
L-5
Landscaping [ ] [ ] [ ] [ ]
Paved Areas [ ] [ ] [ ] [ ]
Sidewalks [ ] [ ] [ ] [ ]
Exterior Finish [ ] [ ] [ ] [ ]
Roof [ ] [ ] [ ] [ ]
General Maintenance [ ] [ ] [ ] [ ]
--------------------------------------------------------------------------------
Comments (explain deferred maintenance):
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
X-0
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxxxx
Interior Excellent Good Fair Poor N/A Maintenance
--------
Entry/Hallways [ ] [ ] [ ] [ ] [ ] [ ]
Walls/Ceilings [ ] [ ] [ ] [ ] [ ] [ ]
Lighting [ ] [ ] [ ] [ ] [ ] [ ]
Carpet/Floor Covering [ ] [ ] [ ] [ ] [ ] [ ]
Stairs [ ] [ ] [ ] [ ] [ ] [ ]
Elevators [ ] [ ] [ ] [ ] [ ] [ ]
Kitchen/Bathrooms [ ] [ ] [ ] [ ] [ ] [ ]
HVAC/Mechanical [ ] [ ] [ ] [ ] [ ] [ ]
Functional Utility [ ] [ ] [ ] [ ] [ ] [ ]
Overall Physical Condition [ ] [ ] [ ] [ ] [ ] [ ]
-------------------------------------------------------------------------------------------------------
Comments:
=======================================================================================================
Market Strength Strong Stable Declining
--------------- [ ] [ ] [ ]
Economic Trend Improving Stable Declining
-------------- [ ] [ ] [ ]
Neighborhood Trend Improving Stable Declining
------------------ [ ] [ ] [ ]
Maintenance of
Neighboring properties Excellent Good Fair Poor
---------------------- [ ] [ ] [ ] [ ]
Occupancy of
Neighboring Properties Excellent Good Fair Poor
----------------------
L-7
[ ] [ ] [ ] [ ]
--------------------------------------------------------------------------------
Regional Analysis:
================================================================================
L-8
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
See form attached at Annex C to the Prospectus Supplement
M-1
EXHIBIT N
RESERVED
N-1
EXHIBIT O
FORM OF SPECIAL SERVICER MONTHLY REPORT
(See attached forms)
O-1
CMSA
HISTORICAL LIQUIDATION REPORT
------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected as NOI _______ or NCF__________
------------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 L75 L29 L45 L7 L37 L39+L38
------------------------------------------------------------------------------------------------------------------------------------
(c) = b/a (a) (b) (d) (e) (f) (g)
------------------------------------------------------------------------------------------------------------------------------------
Prospectus Short Name Property City State % Latest Effective Sales Net Amt Scheduled Total P&I Total T&I
Loan ID (When Type Receive Appraisal Date of Price Received Balance Advance and Other
Appropriate) From or Brokers Liquidation From Sale Outstanding Expense
Liquidation Opinion Advance
Outstanding
------------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
------------------------------------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total all Loans:
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(h) Servicing Fee Expense includes fees such as Liquidation or Disposition fees charged by the Special Servicer.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
S4 L47
------------------------------------------------------------------------------------------------------------------------------------
(h) (i)=d - (f+g+h) (k) (m) (n)=k+m (o)=n/e
------------------------------------------------------------------------------------------------------------------------------------
Prospectus Servicing Fees Net Proceeds Realized Loss Date Minor Adj to Date of Total Loss with Loss % of
Loan ID Expense Loss Trust Minor Adjustment Scheduled
Passed Adj Balance
thru Passed
thru
------------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
------------------------------------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total all Loans:
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(h) Servicing Fee Expense includes fees such as Liquidation or Disposition fees charged by the Special Servicer.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
CMSA
DELINQUENT LOAN STATUS REPORT
------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected as NOI _______ or NCF_____
------------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 S62 L8 L7 L37 L39 L38 L25
or
S63
------------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d) (e)=a+b+c+d
------------------------------------------------------------------------------------------------------------------------------------
Loan Short Name Property City State Sq Paid Schedule Total P&I Other Total T&I Total Current
Prospectus (When Type Ft Thru d loan Advances Expense Advance Exposure Monthly
ID Appropriate) or Date Balance Outstanding Advance Outstanding P&I
Units Outstanding
------------------------------------------------------------------------------------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
60 TO 89 DAYS DELINQUENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
30 TO 59 DAYS DELINQUENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
CURRENT AND AT SPECIAL SERVICER
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FCL = Foreclosure
------------------------------------------------------------------------------------------------------------------------------------
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing 12 months, if available.
------------------------------------------------------------------------------------------------------------------------------------
* Workout Strategy should match the CSSA Loan Periodic Update File using abbreviated words in place of a code number such as (FCL -
------------------------------------------------------------------------------------------------------------------------------------
In Foreclosure, MOD - Modification, DPO - Discount Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payment Plan, TBD - To be
------------------------------------------------------------------------------------------------------------------------------------
determined, etc...). It is possible to combine the status codes if the loan is going in more than one direction (i.e. FCL/Mod,
------------------------------------------------------------------------------------------------------------------------------------
BK/Mod, BK/FCL/DPO).
------------------------------------------------------------------------------------------------------------------------------------
** BPO - Broker opinion
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected as NOI ______ or NCF_____
------------------------------------------------------------------------------------------------------------------------------------
S4 L10 L11 L58 L54 L56 or L74 L75 L35 L77 L79 L76
or or L70/L9
L73 L68/ 3 or
L92 L97
or
L96
------------------------------------------------------------------------------------------------------------------------------------
(f) (.90*f) - e
------------------------------------------------------------------------------------------------------------------------------------
Loan Current Maturity LTM LTM LTM Valuation Appraisal Loss Total Transfer Date Workout Comments
Prospectus Interest Date NOI/ NOI/ DSCR Date BPO or Using 90% Appraisal Date Asset Strategy*
ID Rate NCF NCF (NOI/ Internal Appr. or Reduction Expected
Date NCF) Value** BPO (f) Realized to be
Resolved
or
Foreclosed
------------------------------------------------------------------------------------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
60 TO 89 DAYS DELINQUENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
30 TO 59 DAYS DELINQUENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
CURRENT AND AT SPECIAL SERVICER
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FCL = Foreclosure
------------------------------------------------------------------------------------------------------------------------------------
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing 12 months, if available.
------------------------------------------------------------------------------------------------------------------------------------
* Workout Strategy should match the CSSA Loan Periodic Update File using abbreviated words in place of a code number such as (FCL -
------------------------------------------------------------------------------------------------------------------------------------
In Foreclosure, MOD - Modification, DPO - Discount Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payment Plan, TBD - To be
------------------------------------------------------------------------------------------------------------------------------------
determined, etc...). It is possible to combine the status codes if the loan is going in more than one direction (i.e. FCL/Mod,
------------------------------------------------------------------------------------------------------------------------------------
BK/Mod, BK/FCL/DPO).
------------------------------------------------------------------------------------------------------------------------------------
** BPO - Broker opinion
------------------------------------------------------------------------------------------------------------------------------------
CMA
REO STATUS REPORT
------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected as NOI _______ or NCF_____
------------------------------------------------------------------------------------------------------------------------------------
P4 P7 P13 P9 P10 P16 L8 P21 L37 L39 L38 L25
or
P17
------------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d) (e)=a+b+c+d
------------------------------------------------------------------------------------------------------------------------------------
Prperty Short Name Property City State Sq Paid Allocation Total Other Total Total Current
ID (When Type Ft Thru Loan P&I Expense T&I Exposure Monthly
Appropriate) or Date Amount Advances Advance Advance P&I
Units Outstanding Outstanding Outstanding
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
REO's data reflected at the property level for relationships with more than one (1) property should use the Allocated Loan Amount,
------------------------------------------------------------------------------------------------------------------------------------
and prorate all advances and expenses or other loan level data as appropriate.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Use the following codes; App. - Appriasal, BPO - Brokers Opinion, Int - Internal Value.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Operating Information Reflected as NOI ______ or NCF_____
------------------------------------------------------------------------------------------------------------------------------------
P4 L11 P53 P58 or X00 X00 X00 X00 X00 X00
or P72/P79
P74 or P83
------------------------------------------------------------------------------------------------------------------------------------
(f) (g) (h)=(.90*g) - e
------------------------------------------------------------------------------------------------------------------------------------
Property Maturity LTM LTM Valuation Appraisal Appraisal Loss Total Transfer REO Date Comments
ID Date NOI/ DSCR Date BPO or BPO or Using 90% Appraisal Date Acquisition Asset
NCF (NOI/ Internal Internal Appr. or Reduction Date Expected
Date NCF) Value Value BPO (f) Realized to be
Source (1) Resolved
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
REO's data reflected at the property level for relationships with more than one (1) property should use the Allocated Loan Amount,
------------------------------------------------------------------------------------------------------------------------------------
and prorate all advances and expenses or other loan level data as appropriate.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Use the following codes; App. - Appriasal, BPO - Brokers Opinion, Int - Internal Value.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT P
SCHEDULE OF MORTGAGE LOANS SUBJECT TO
THE GROUP ENVIRONMENTAL INSURANCE POLICY
P-1
------------------------------------------------------------------------------------------------------------------------------------
LOAN# ORIGINATOR LOANNAME PROPERTYNAME ORIGINALBALANCE CALC_CUTOFFBALANCE
------------------------------------------------------------------------------------------------------------------------------------
900157 Xxxxx Fargo East Pointe Apartments East Pointe Apartments 1,100,000.00 1,098,831.76
900117 Xxxxx Fargo Oak Creek Apartments Oak Creek Apartments 1,020,000.00 1,018,525.79
900066 Xxxxx Fargo Alcosta Boulevard Alcosta Boulevard 1,625,000.00 1,615,064.74
900067 Xxxxx Fargo Xxxxxxxx Drive Xxxxxxxx Drive 2,200,000.00 2,189,395.06
900069 Xxxxx Fargo Office Max Office Max 1,725,000.00 1,692,529.66
900070 Xxxxx Xxxxx Xxxx Xxxx Xxxx Xxxx 1,300,000.00 1,292,246.55
900080 Xxxxx Fargo Raley's Annex Raley's Annex 1,610,000.00 1,592,233.79
900081 Xxxxx Fargo Washington Mutual Bank Washington Mutual Bank 1,100,000.00 1,065,406.44
900085 Xxxxx Fargo Xxxx Xxxxx Xxxxxx Xxxx Xxxxx Xxxxxx 1,500,000.00 1,491,777.86
900087 Xxxxx Fargo Steelhead Way Steelhead Way 1,000,000.00 994,663.56
900091 Xxxxx Fargo Xxxxxx Building Xxxxxx Building 1,600,000.00 1,595,593.05
900092 Xxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxxx Apartments 1,325,000.00 1,321,226.07
900093 Xxxxx Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxxx Xxxxxx Industrial 1,200,000.00 1,196,044.57
900095 XXXXX FARGO STAPLES (RED BLUFF) STAPLES (RED BLUFF) 1,900,000.00 1,278,720.52
900096 Xxxxx Fargo Xxxxxx Xxxxxx Xxxxxx Xxxxxx 1,700,000.00 1,693,850.39
900097 Xxxxx Fargo Social Security Building Social Security Building 2,400,000.00 2,374,447.35
900100 Xxxxx Fargo Bernoulli Circle Bernoulli Circle 1,000,000.00 993,588.66
900104 Xxxxx Xxxxx Xxx Xxxx Xxxx Xxxxxx Xxxxxxxx Xxx Xxxx Xxxx Office Building 1,000,000.00 991,936.97
900101 Xxxxx Fargo Xxxxxxx Xxxx Xxxxxxxxxx Xxxxxxx Xxxx Industrial 600,000.00 596,339.22
900103 Xxxxx Fargo Pine Avenue Industrial Pine Avenue Industrial 760,000.00 755,468.16
900107 Xxxxx Fargo Sacramento Road Sacramento Road 1,402,000.00 1,395,803.44
900108 Xxxxx Fargo Motorola Industrial Building Motorola Industrial Building 1,200,000.00 1,195,787.28
900110 Xxxxx Fargo 00 Xxxx Xxxxx Xxxxxxxxx Xxxxxxx 00 Xxxx Xxxxx Xxxxxxxxx Parkway 880,000.00 870,902.17
900111 Xxxxx Xxxxx Xxxxxxx Road Xxxxxxx Road 2,200,000.00 2,196,721.44
900113 Xxxxx Fargo Maple Trails Apartments Maple Trails Apartments 2,000,000.00 1,995,583.13
900116 Xxxxx Fargo Fort Xxxxx Pools Fort Xxxxx Pools 1,960,000.00 1,947,451.41
900118 Xxxxx Fargo Xxx Xxxx Center Xxx Xxxx Center 2,400,000.00 2,395,056.71
900119 Xxxxx Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx 1,900,000.00 1,890,031.14
900120 Xxxxx Fargo Core-Xxxx Building Core-Xxxx Building 2,350,000.00 2,345,661.20
900121 Xxxxx Fargo Xxxx Xxxxxxxxxx Building Xxxx Xxxxxxxxxx Building 2,000,000.00 1,995,851.96
900122 Xxxxx Fargo Ford Industrial Ford Industrial 1,500,000.00 1,497,689.24
900126 Xxxxx Fargo Fabian Way Fabian Way 2,300,000.00 2,291,893.13
900127 Xxxxx Fargo Eckerd Drug Store Eckerd Drug Store 1,650,000.00 1,646,385.47
900131 Xxxxx Fargo 0000 Xxxxxx Xxx Xxxx 0000 Xxxxxx Xxx Xxxx 1,920,000.00 1,917,216.44
900132 Xxxxx Fargo Walgreens Walgreens 1,500,000.00 1,489,930.30
900134 Xxxxx Fargo Juniper Building Juniper Building 760,000.00 758,222.16
900136 Xxxxx Fargo 00 Xxxxxxxx Xxxxxxxxx 00 Xxxxxxxx Xxxxxxxxx 1,000,000.00 998,427.07
900138 Xxxxx Xxxxx Xxxxxxx Xxxx Xxxxxxxxxx Xxxxxxx Xxxx Apartments 1,600,000.00 1,597,579.21
900143 Xxxxx Xxxxx Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxx Xxxx Industrial 1,075,000.00 1,072,299.11
900144 Xxxxx Fargo Forming Specialties Building Forming Specialties Building 1,325,000.00 1,323,670.64
900147 Xxxxx Fargo Countryview Apartments Countryview Apartments 2,500,000.00 2,497,090.52
900148 Xxxxx Fargo A-Atlas - E. 22nd Street A-Atlas - E. 22nd Street 1,100,000.00 1,094,413.59
900150 Xxxxx Fargo A-Atlas -X. Xxxxxx Road A-Atlas -X. Xxxxxx Road 719,000.00 715,348.52
900152 Xxxxx Fargo 0000 X. Xxxxxxx Xxxxxxx 5508 X. Xxxxxxx Highway 1,500,000.00 1,491,995.91
900153 Xxxxx Fargo The Shops at Hampden Crossing The Shops at Hampden Crossing 2,400,000.00 2,397,727.85
900159 Xxxxx Fargo Xxxxx & Xxxxxxxx Shops Xxxxx & Greenway Shops 1,000,000.00 997,138.20
900161 Xxxxx Fargo Alamo Self Storage Alamo Self Storage 1,500,000.00 1,497,562.71
900179 Xxxxx Fargo Barclay Office Building Barclay Office Building 680,000.00 679,585.51
900114 Xxxxx Xxxxx Xxxxx Xxxxxx Xxxxx Xxxxxx 1,700,000.00 1,695,934.85
900082 Xxxxx Fargo LAX Logistics Center LAX Logistics Center 4,750,000.00 4,736,282.51
Total 77,836,000.00 77,473,132.98
Total / Pool Amount 9.3% 9.2%
Pool Amount 838,510,239.00 838,510,239.00
Count 50 50
Max (Without LAX) 2,500,000.00 2,497,090.52
Max (All) 4,750,000.00 4,736,282.51
EXHIBIT Q
SCHEDULE OF MORTGAGE LOANS SUBJECT TO
AN INDIVIDUAL ENVIRONMENTAL INSURANCE POLICY
1. The Mortgage Loan identified on the Mortgage Loan Schedule by loan
number 26188 and secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as "Basket Road Publishers Parkway";
2. The Mortgage Loan identified on the Mortgage Loan Schedule by loan
number 28750 and secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as "Long Beach Marketplace";
3. The Mortgage Loan identified on the Mortgage Loan Schedule by loan
number 28983 and secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as "FM Global Headquarters"; and
4. The Mortgage Loan identified on the Mortgage Loan Schedule by loan
number 29136 and secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as "Selectron Xxxxxxxx".
X-0
EXHIBIT R
RESERVED
R-1
EXHIBIT S-1
FORM OF POWER OF ATTORNEY FOR SERVICER
RECORDING REQUESTED BY:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AND WHEN RECORDED MAIL TO:
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2000-WF2
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-WF2 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of October __, 2000
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Servicer under the Pooling
and Servicing Agreement ("Xxxxx Fargo Bank"), as its true and lawful
attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or
appropriate to enable Xxxxx Fargo Bank to service and administer the Mortgage
Loans (as defined in the Pooling and Servicing Agreement) in connection with the
performance by Xxxxx Fargo Bank of its duties as Servicer under the Pooling and
Servicing Agreement, giving and granting unto Xxxxx Fargo Bank full power and
authority to do and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or confirming all
that Xxxxx Fargo Bank shall lawfully do or cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the Servicer shall
not without the Trustee's written consent: (i) initiate any action, suit or
proceeding solely under the Trustee's name without indicating the Servicer's
representative capacity, or (ii) take any action which has the effect of causing
the Trustee to be registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited
power of attorney to be executed as of this 1st day of October, 2000.
S-1-1
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2000-WF2
By:
------------------------------------
Name:
Title:
S-1-2
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On before me,
------------- ----------------------------------------------
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared
----------------------------------------------------
Name(s) of Document Signer(s)
--------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
--------------------------------------------
Signature of Notary
(Affix seal in the above blank space)
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
GMAC COMMERCIAL MORTGAGE CORPORATION
AND WHEN RECORDED MAIL TO:
GMAC COMMERCIAL MORTGAGE CORPORATION
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention:
---------------------------------------
Space above this line for Recorder's use
------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2000-WF2 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of October 1, 2000
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint GMAC COMMERCIAL MORTGAGE CORPORATION, as Special Servicer under the
Pooling and Servicing Agreement ("GMAC"), as its true and lawful
attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or
appropriate to enable GMAC to service and administer the Mortgage Loans (as
defined in the Pooling and Servicing Agreement) in connection with the
performance by GMAC of its duties as Special Servicer under the Pooling and
Servicing Agreement, giving and granting unto GMAC full power and authority to
do and perform any and every act necessary, requisite, or proper in connection
with the foregoing and hereby ratifying, approving or confirming all that GMAC
shall lawfully do or cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the Special Servicer
shall not without the Trustee's written consent: (i) initiate any action, suit
or proceeding solely under the Trustee's name without indicating Special
Servicer's representative capacity, or (ii) take any action which has the
effect of causing the Trustee to be registered to do business in any state.
S-2-1
IN WITNESS WHEREOF, the undersigned has caused this limited power
of attorney to be executed as of this 1st day of October, 2000.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2000-WF2
BY:
--------------------------------
Name:
Title:
S-2-2
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On before me,
------------- ----------------------------------------------
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared
----------------------------------------------------
Name(s) of Document Signer(s)
--------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
--------------------------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT T
PROCEDURES FOR CALCULATIING DEBT SERVICE COVERAGE RATIO
"Debt Service Coverage Ratios" generally means the ratio of
"Underwritten Cash Flow" estimated to be produced by the related Mortgaged
Property to the annualized amount of debt service payable under that Mortgage
Loan. "Underwritten Cash Flow" in each case is an estimate of stabilized cash
flow available for debt service. In general, it is the estimated stabilized
revenue derived from the use and operation of a Mortgaged Property (consisting
primarily of rental income) less the sum of (a) estimate stabilized operating
expenses (such as utilities, administrative expenses, repairs and maintenance,
management fees and advertising), (b) fixed expenses (such as insurance, real
estate taxes and, if applicable, ground lease payments) and (c) reserves for
capital expenditures, including tenant improvement costs and leasing
commissions. Underwritten Cash Flow generally does not reflect interest expenses
and non-cash items such as depreciation and amortization. In determining
Underwritten Cash Flow for a Mortgaged Property, the Servicer may rely on rent
rolls and other generally unaudited financial information provided by the
respective borrowers and may estimate cash flow taking into account historical
financial statements, material changes in the operating position of the
Mortgaged Property, and estimated capital expenditures, leasing commission and
tenant improvement reserves. The Servicer may make certain changes to operating
statements and operating information obtained from the respective borrowers. In
the case of the Pari Passu Loan, the Underwritten Cash Flow produced by the
related Mortgaged Property will be allocated to the Pari Passu Loan on a pro
rata basis based upon the respective principal balances of the Related Trust
Fund Mortgage Loan and the Pari Passu Loan.
T-1
SCHEDULE I
BEAR XXXXXXX LOAN SCHEDULE
ORIGINAL GROSS
COUNT LOAN NUMBER LOAN/PROPERTY NAME BALANCE CUT-OFF BALANCE MORTGAGE RATE
1 25310 000 Xxxxxxxxx Xxxxxx 3,400,000 3,395,101 8.3000%
2 25481 0000 Xxxxx Xxxxxxxxx 2,025,000 2,019,898 8.2700%
3 26188 000 Xxxxxxxxxx Xxxxxxx & 655 ABC Basket Rd 12,600,000 12,577,829 8.3500%
26188A 000 Xxxxxxxxxx Xxxxxxx 9,326,000
26188B 000 X, X, X Xxxxxx Xxxx 3,274,000
4 00000 XXXX XXXXXX APARTMENTS 2,000,000 1,985,421 7.8300%
5 26301 The Xxxxxx Building 7,000,000 6,918,402 7.6000%
6 26508 Pencader IV 5,360,000 5,352,712 8.4850%
7 26777 CVS Staten Island 2,025,000 1,999,125 8.2600%
8 00000 Xxxxxx Xxxxx & Xxxxxxxx Xxxxxxxxxx 1,175,000 1,145,614 8.3400%
26843A Prince Haven Apartments 519,943
26843B Hillside Apartments 655,057
9 26908 HILTON GARDEN CUPERTINO 18,000,000 17,797,958 8.1900%
10 27752 000 Xxxxx Xxxxx Xxxxxx 9,500,000 9,457,968 8.4670%
11 00000 Xxxxxxxxxx Xxxxxx 3,400,000 3,396,366 7.9000%
12 28009 Med Park Mall 3,425,000 3,402,721 8.0750%
13 28104 000 Xxxxxx Xxxxxx 3,350,000 3,301,242 7.5750%
14 28225 Kwasha Lipton Building 13,350,000 13,350,000 8.0800%
15 00000 Xxxx Xxxxx 5,125,000 5,102,701 8.8800%
16 00000 Xxxxxxxxx Xxxx Apartments 25,550,000 25,406,203 7.8800%
17 28353 Xxxxx Restaurant Portfolio 2,000,000 1,998,306 9.3100%
28353A Hardee's - 000 Xxxxxxxxxx Xxxxxx 335,042
28353B Hardee's - 0000 Xxxxx Xxxxxx 337,864
28353C Hardee's - 0000 Xxxxxxxxxx Xxxxxxxxx 231,511
28353D Hardee's - 0000 Xxxxxxxxx Xxxxxxx 332,638
28353E Hardee's - 324 W. Xxxx X. Xxxx Parkway 402,294
28353F Hardee's - 000 Xxxxxx Xxxxxx XX 360,651
18 28387 000 Xxxx Xxxxxx 4,400,000 4,343,178 8.3650%
19 00000 Xxxxx Xxxxxxx Xxxxx 6,800,000 6,778,394 8.2700%
20 28494 Kings Supermarket 3,500,000 3,495,750 8.8300%
21 28550 0000 Xxxxxx Xxxxxx 2,000,000 1,971,002 7.6150%
22 28578 Xxxxxx Xxxx Warehouse 1,300,000 1,296,408 8.7650%
23 28636 HomeSide Lending Building 8,000,000 8,000,000 7.7500%
24 28686 Giant Eagle Shopping Center 4,500,000 4,487,157 7.7800%
25 28750 Long Beach Marketplace 21,200,000 21,157,357 8.4300%
26 28762 000 Xxxxx Xxxxxx 2,100,000 2,095,975 8.6000%
27 00000 Xxxxxxxxx Xxxxxxxxxx 4,450,000 4,445,523 8.4000%
28 28850 Space Plus Storage Center 4,050,000 4,046,296 8.8500%
29 28868 The Shoppes at Xxxxxxxx'x 3,000,000 2,994,282 8.6200%
30 00000 Xxxxxxx Xxxxx Xxxx 4,125,000 4,118,759 8.1400%
31 28935 Carrier World Headquarters 6,950,000 6,950,000 7.6300%
32 00000 XX Xxxxxx Xxxxxxxxxxxx 32,676,000 31,802,702 8.7350%
33 28995 Capitol Hills Mobile Home Park 4,000,000 3,986,468 7.5650%
34 29003 Hacienda Xxxxxx Apartments 7,000,000 6,984,954 8.1900%
35 29028 L&S Portfolio 9,300,000 9,286,309 8.2300%
29028A Drexel View Club Apartments 2,640,000
00000X Xxxxxxxxx Xxxxxxx Apartments 2,680,000
00000X Xxxxxxxx Xxxxx Apartments 2,049,000
29028D Springfield Green Apartments 1,931,000
36 29083 17 EAST 13TH, 00-00 XXXX 00XX, 00-00 XXXX 00XX 15,150,000 15,139,731 7.9500%
29083A 00 X. 00xx Xxxxxx & 00-00 X. 00xx Xxxxxx 7,550,000
29083B 00-00 X. 00xx Xxxxxx 7,600,000
37 29106 Festival At Wootholme 13,800,000 13,780,483 8.3600%
38 29136 Solectron Building 8,750,000 8,738,941 8.7100%
39 29198 AMC Cantera 30 17,850,000 17,770,862 8.2350%
40 29267 000 Xxxx Xxxxxxxx 3,000,000 2,988,263 7.8500%
41 29397 A1 Self Storage 2,000,000 1,996,319 8.1250%
42 29453 000 Xxxxxx Xxxxxx 13,000,000 12,978,880 7.9000%
43 29458 Centennial Portfolio 7,500,000 7,488,395 8.7400%
29458A 0000 Xxxxx Xxxx/Xxxxx Xxxxxxx 000 1,440,000
29458B 10967 & 00000 Xxxxxx Xxxx Xxxx 1,715,000
29458C 00000-00000 Xxxxxx Xxxx 3,450,000
29458D 0000 Xxxxxxx Xxxx 895,000
44 29476 Deanza Plaza 12,000,000 11,984,978 8.7390%
29476A 00000 X. XxXxxx Xxxxxxxxx 5,500,000
29476B 00000 X. XxXxxx Xxxxxxxxx 6,500,000
45 29512 Walgreens Amarillo 2,125,000 2,123,693 8.4250%
46 00000 Xxxxxx Xxxx/Xxxxxxx Xxxxxxx 3,300,000 3,272,488 7.9300%
00000X Xxxxxx Xxxx 1,842,000
00000X Xxxxxxx Xxxxxxx 1,458,000
47 00000 Xxx Xxxxxxxx Xx Xxxx Xxxxxxx 3,500,000 3,496,479 8.4000%
48 29676 000 Xxxxxxx Xxxxxxx 8,600,000 8,584,094 8.1000%
49 00000 Xxxxxx Xxxxx Xxxxxx 3,550,000 3,546,746 8.7250%
50 29914 The Xxxxxxx 1,975,000 1,972,874 8.1550%
51 00000 Xxxxx Xxxxxxxx 3,700,000 3,696,508 8.6250%
STATED
ORIGINAL
TERM TO REMAINING INTEREST
INTEREST ACCRUAL ADMINISTRATIVE NET MORTGAGE MATURITY TERM TO ONLY FIRST PAYMENT
COUNT METHOD COST RATE RATE (MOS.) MATURITY (MOS.) MONTHS DATE
1 Actual/360 0.0532% 8.2468% 120 117 8/1/00
2 Actual/360 0.0532% 8.2168% 120 115 6/1/00
3 Actual/360 0.0532% 8.2968% 120 118 9/1/00
4 ACTUAL/360 0.0532% 7.7768% 180 168 11/1/99
5 Actual/360 0.0532% 7.5468% 120 109 12/1/99
6 Actual/360 0.0532% 8.4318% 120 117 8/1/00
7 Actual/360 0.0532% 8.2068% 120 112 3/1/00
8 Actual/360 0.0532% 8.2868% 180 171 2/1/00
9 ACTUAL/360 0.0532% 8.1368% 120 108 11/1/99
10 Actual/360 0.0532% 8.4138% 120 111 2/1/00
11 Actual/360 0.0532% 7.8468% 120 119 10/1/00
12 Actual/360 0.0532% 8.0218% 120 113 4/1/00
13 Actual/360 0.0532% 7.5218% 180 175 6/1/00
14 Actual/360 0.0532% 8.0268% 120 113 22 4/1/00
15 Actual/360 0.0532% 8.8268% 120 115 6/1/00
16 30/360 0.0532% 7.8268% 120 112 3/1/00
17 Actual/360 0.3032% 9.0068% 120 119 10/1/00
18 ACTUAL/360 0.0532% 8.3118% 120 114 5/1/00
19 Actual/360 0.0532% 8.2168% 120 114 5/1/00
20 Actual/360 0.0532% 8.7768% 180 177 8/1/00
21 Actual/360 0.0532% 7.5618% 180 175 6/1/00
22 Actual/360 0.0532% 8.7118% 120 114 5/1/00
23 Actual/360 0.0532% 7.6968% 132 128 132 7/1/00
24 Actual/360 0.0532% 7.7268% 120 117 8/1/00
25 Actual/360 0.0532% 8.3768% 120 116 7/1/00
26 Actual/360 0.0532% 8.5468% 120 116 7/1/00
27 Actual/360 0.0532% 8.3468% 120 118 9/1/00
28 Actual/360 0.0532% 8.7968% 120 119 10/1/00
29 Actual/360 0.0532% 8.5668% 120 116 7/1/00
30 Actual/360 0.0532% 8.0868% 180 177 8/1/00
31 Actual/360 0.0532% 7.5768% 120 114 120 5/1/00
32 30/360 0.0532% 8.6818% 109 106 8/1/00
33 Actual/360 0.0532% 7.5118% 120 118 9/1/00
34 Actual/360 0.0532% 8.1368% 120 116 7/1/00
35 Actual/360 0.0532% 8.1768% 120 117 8/1/00
36 ACTUAL/360 0.0532% 7.8968% 120 119 10/1/00
37 ACTUAL/360 0.0532% 8.3068% 120 117 8/1/00
38 Actual/360 0.0532% 8.6568% 120 117 8/1/00
39 Actual/360 0.0532% 8.1818% 120 115 6/1/00
40 Actual/360 0.0532% 7.7968% 120 116 7/1/00
41 Actual/360 0.0532% 8.0718% 120 118 9/1/00
42 Actual/360 0.0532% 7.8468% 120 117 8/1/00
43 Actual/360 0.0532% 8.6868% 180 179 10/1/00
44 ACTUAL/360 0.0532% 8.6858% 84 81 8/1/00
45 ACTUAL/360 0.0532% 8.3718% 120 119 10/1/00
46 Actual/360 0.0532% 7.8768% 180 177 8/1/00
47 ACTUAL/360 0.0532% 8.3468% 120 118 9/1/00
48 Actual/360 0.0532% 8.0468% 180 178 9/1/00
49 Actual/360 0.0532% 8.6718% 120 118 9/1/00
50 Actual/360 0.0532% 8.1018% 120 118 9/1/00
51 Actual/360 0.0532% 8.5718% 120 118 9/1/00
MORTGAGE MONTHLY
RATE SCHEDULED DEBT SERVICE EFFECTIVE
FOLLOWING P&I COVERAGE CUT-OFF LOCKOUT
COUNT MATURITY DATE ARD ARD PAYMENTS RATIO APPRAISED VALUE LTV PERIOD (MOS.)
1 7/1/10 25,663 1.79 6,000,000 56.59% 120
2 5/1/10 15,242 1.20 2,575,000 78.44% 120
3 8/1/10 100,188 1.60 43.00% 120
22,500,000 41.38%
6,750,000 48.42%
4 10/1/14 14,439 2.13 3,700,000 53.66% 180
5 11/1/09 52,186 1.85 16,300,000 42.44% 24
6 7/1/10 41,157 1.41 7,600,000 70.43% 120
7 2/1/10 17,267 1.66 4,100,000 48.76% 120
8 1/1/15 11,461 1.68 38.19% 48
1,300,000 39.00%
1,700,000 37.57%
9 10/1/09 141,313 2.04 31,700,000 56.14% 120
10 1/1/10 72,880 1.44 13,000,000 72.75% 119
11 9/1/10 26,017 1.67 6,100,000 55.68% 117
12 3/1/10 26,605 1.59 5,400,000 63.01% 120
13 5/1/15 31,198 1.35 6,200,000 53.25% 180
14 3/1/10 93,338 1.80 28,300,000 47.17% 0
15 5/1/10 43,078 1.42 7,150,000 71.37% 120
16 2/1/10 185,344 1.41 37,000,000 68.67% 120
17 9/1/10 17,211 1.36 62.94% 24
470,000 71.23%
550,000 61.38%
375,000 61.68%
540,000 61.55%
655,000 61.37%
585,000 61.60%
18 4/1/10 40,486 1.58 7,600,000 57.15% 120
19 4/1/10 51,182 1.47 9,100,000 74.49% 120
20 7/1/15 27,735 1.28 5,000,000 69.92% 180
21 5/1/15 18,671 1.44 3,600,000 54.75% 180
22 4/1/10 10,241 1.37 1,940,000 66.83% 120
23 6/1/11 52,384 1.80 16,000,000 50.00% 129
24 7/1/10 34,078 1.74 12,100,000 37.08% 120
25 6/1/10 161,959 1.33 28,600,000 73.98% 120
26 6/1/10 16,296 1.40 3,300,000 63.51% 120
27 8/1/10 33,902 1.27 6,200,000 71.70% 120
28 9/1/10 33,572 1.43 5,700,000 70.99% 120
29 6/1/10 23,323 1.36 4,050,000 73.93% 120
30 7/1/15 30,671 1.37 6,700,000 61.47% 180
31 4/1/10 44,804 2.10 14,400,000 48.26% 0
32 8/1/09 389,449 1.73 63,520,000 50.07% 109
33 8/1/10 32,383 2.32 12,000,000 33.22% 120
34 6/1/10 52,294 1.51 11,200,000 62.37% 120
35 7/1/10 69,737 1.30 78.04% 120
2,900,000 90.90%
3,400,000 78.71%
2,700,000 75.78%
2,900,000 66.49%
36 9/1/10 110,638 1.50 60.68% 120
12,750,000 59.18%
12,200,000 62.25%
37 7/1/10 104,744 1.43 23,000,000 59.92% 119
38 7/1/10 68,586 1.31 13,200,000 66.20% 120
39 5/1/10 140,559 1.99 35,625,000 49.88% 120
40 6/1/10 22,857 2.03 6,400,000 46.69% 120
41 8/1/10 15,602 1.87 3,700,000 53.95% 120
42 7/1/10 94,485 2.05 28,100,000 46.19% 120
43 9/1/15 66,230 1.34 53.87% 180
2,600,000 55.30%
3,000,000 57.08%
5,500,000 62.63%
2,800,000 31.91%
44 7/1/07 94,310 1.45 57.48% 84
9,382,500 58.55%
11,467,500 56.61%
45 9/1/10 16,227 1.32 3,100,000 68.51% 120
46 7/1/15 31,403 1.50 41.42% 180
4,200,000 43.49%
3,700,000 39.08%
47 8/1/10 26,664 1.87 6,600,000 52.98% 120
48 8/1/15 66,947 1.71 16,300,000 52.66% 180
49 8/1/10 27,865 1.44 5,200,000 68.21% 120
50 8/1/10 14,706 1.45 2,975,000 66.32% 120
51 8/1/10 28,778 1.36 5,100,000 72.48% 120
EFFECTIVE
LOCKOUT END CALL PROTECTION
COUNT DATE CALL PROTECTION END DATE ADDRESS
1 6/30/10 Defeasance 6/30/10 000 Xxxxxxxxx Xxxxxx
2 4/30/10 Defeasance 4/30/10 0000 Xxxxx Xxxxxxxxx
3 7/31/10 Defeasance 7/31/10
000 Xxxxxxxxxx Xxxxxxx
000 X, X, X Xxxxxx Xxxx
0 9/30/14 Defeasance 9/30/14 0000 Xxxxx Xxxxxxxxx
5 10/31/01 >1% or Yield Maintenance 7/31/09 0000 X Xxxxxx XX
0 6/30/10 Defeasance 6/30/10 Pencader Corporate Center
7 1/31/10 Defeasance 1/31/10 0000 Xxxxxxx Xxxxxxxxx
8 12/31/03 >1% or Yield Maintenance 12/31/14
00-00 Xxxxxx Xxxxx Xxxx
23 Xxxxx Avenue
9 9/30/09 Defeasance 9/30/09 00000 X. Xxxxx Xxxx
10 11/30/09 Defeasance 11/30/09 000 Xxxxx Xxxxx Xxxxxx
11 5/31/10 Defeasance 5/31/10 00-000 X. Xxxxx Xxxxxx
12 2/28/10 Defeasance 2/28/10 1375 & 0000 Xxxxx Xxxxxxxx Xxxx
13 4/30/15 Defeasance 4/30/15 000 Xxxxxx Xxxxxx
14 2/29/00 >1% or Yield Maintenance 2/28/10 0000 Xxxxx Xxxxxxx Xxxx
15 4/30/10 Defeasance 4/30/10 000-000 Xxxx Xxxxxxxx Xxxxxxxxx
16 1/31/10 Defeasance 1/31/10 0000 XxxXxxxxx Xxxxxxxxx
17 8/31/02 >1% or Yield Maintenance 5/31/10
000 Xxxxxxxxxx Xxxxxx
1602 Xxxxx Street (US 27 & I-40)
0000 Xxxxxxxxxx Xxxxxxxxx
3926 Asheville Highway
324 W. Xxxx X. Xxxx Parkway
000 Xxxxxx Xxxxxx XX
00 3/31/10 Defeasance 3/31/10 000-000 Xxxx Xxxxxx
00 3/31/10 Defeasance 3/31/10 00000 XX 0xx Xxxxxx
20 6/30/15 Defeasance 6/30/15 0000 Xxxxxxx Xxxx
21 4/30/15 Defeasance 4/30/15 0000 Xxxxxx Xxxxxx
22 3/31/10 Defeasance 3/31/10 0000 Xxx Xxxxxxxxx Xxxx
23 2/28/11 Defeasance 2/28/11 0000 Xxxxxxxxxx Xxx
24 6/30/10 Defeasance 6/30/10 6300-7106 Xxxxxxxx Xxxx
00 5/31/10 Defeasance 5/31/10 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx
00 5/31/10 Defeasance 5/31/10 000 Xxxxx Xxxxxx
27 7/31/10 Defeasance 7/31/10 0000 Xxxxxxxxxx Xxxx
28 8/31/10 Defeasance 8/31/10 0000 X.X. 00xx Xxxxxx Place
29 5/31/10 Defeasance 5/31/10 000 Xxxxxxxxxx Xxxxxx
30 6/30/15 Defeasance 6/30/15 000 X00xx Xxxxxx
31 3/31/00 >1% or Yield Maintenance 3/31/10 One Carrier Corporation
32 7/31/09 Defeasance 7/31/09 000 Xxxxxxx Xxxxxx
33 7/31/10 Defeasance 7/31/10 0000 Xxxx Xxxxx Xxxxxx
34 5/31/10 Defeasance 5/31/10 0000 Xxxxxxx Xxxx
35 6/30/10 Defeasance 6/30/10
0000 Xxxxxxxx Xxxx Xxxx
000 Xxxxx Xxxxxxxxx Xxxxxx
000 Xxxx Xxxxxxxxx Xxxx
000 Xxxxx Xxxxxx Avenue
36 8/31/10 Defeasance 8/31/10
00 X. 00xx Xxxxxx & 00-00 X. 00xx Xxxxxx
00-00 X. 00xx Xxxxxx
37 5/31/10 Defeasance 5/31/10 0000 Xxxxxxxxxxxx Xxxx
38 6/30/10 Defeasance 6/30/10 000 Xxxxxx Xxxxxx
39 4/30/10 Defeasance 4/30/10 00000 Xxxxx Xxxx
00 5/31/10 Defeasance 5/31/10 000 Xxxx Xxxxxxxx
41 7/31/10 Defeasance 7/31/10 00 Xxxxxxxx Xxxxxx
42 6/30/10 Defeasance 6/30/10 000 Xxxxxx Xxxxxx
43 8/31/15 Defeasance 8/31/15
0000 Xxxxx Xxxx/Xxxxx Xxxxxxx 000
00000 & 00000 Xxxxxx Xxxx Xxxx
15055-15065 Inwood Road
0000 Xxxxxxx Xxxx
44 6/30/07 Defeasance 6/30/07
00000 X. XxXxxx Xxxxxxxxx
00000 X. XxXxxx Xxxxxxxxx
45 8/31/10 Defeasance 8/31/10 0000 X. Xxxxxxx Xxxxxx
46 6/30/15 Defeasance 6/30/15
000 Xxxxxx Xxxx
0000 Xxxxx Xxxxxx
47 7/31/10 Defeasance 7/31/10 000-000 X. Xxxx Xxxxxx Xxxxx
48 7/31/15 Defeasance 7/31/15 000 Xxxxxxx Xxxxxxx
49 7/31/10 Defeasance 7/31/10 13004-13112 Harbor Boulevard
50 7/31/10 Defeasance 7/31/10 000 00xx Xxxxxx Xxxxxxxxx
51 7/31/10 Defeasance 7/31/10 0000 Xxxxx Xxxx Xxxxxx
Count Fee or Leasehold Interest Lien Position
1 Fee First
2 Fee First
3 First
Fee
Fee
4 Fee First
5 Fee First
6 Fee First
7 Fee First
8 First
Fee
Fee
9 Fee First
10 Fee First
11 Fee First
12 Fee First
13 Fee First
14 Fee First
15 Leasehold First
16 Fee First
17 First
Fee
Fee
Fee
Fee
Fee
Fee
18 Leasehold First
19 Fee First
20 Fee First
21 Fee First
22 Fee First
23 Fee First
24 Fee First
25 Fee First
26 Fee First
27 Fee First
28 Fee First
29 Fee First
30 Fee First
31 Fee First
32 Fee/Leasehold First
33 Fee First
34 Fee First
35 First
Fee
Fee
Fee
Fee
36 First
Fee
Fee
37 FEE First
38 Fee First
39 Fee First
40 Fee First
41 Fee First
42 Fee First
43 First
Fee
Fee
Fee
Fee
44 First
Leasehold
Leasehold
45 FEE First
46 First
Fee
Fee
47 FEE First
48 Fee First
49 Fee First
50 Fee First
51 Leasehold First
SCHEDULE II
XXXXX FARGO LOAN SCHEDULE
ORIGINAL CUT-OFF
COUNT LOAN NUMBER LOAN/PROPERTY NAME BALANCE BALANCE
1 310851150 Bellcrest Shops 1,550,000 1,480,523
2 310851537 Coaster of America Building 4,200,000 4,122,650
3 310851554 Plaza Del Obispo 8,500,000 8,472,929
4 310851623 U-Haul Storage Portfolio 32,100,000 31,726,782
310851623A U-Haul Storage Belt Boulevard 2,260,549
310851623B U-Haul Storage Cactus & 51st 1,211,723
310851623C U-Haul Storage Xxxxx 863,662
310851623D U-Haul Storage Highland Avenue 2,359,560
310851623E U-Haul Storage Marietta Street 2,132,080
310851623F U-Haul Storage Xxxxxx Park Road 1,630,286
310851623G U-Haul Storage Jamil Road 1,466,505
310851623H U-Haul Storage Holland Road 1,058,385
310851623I U-Haul Storage Elm Drive 1,300,402
310851623J U-Haul Storage Washington Road 1,516,658
310851623K U-Haul Storage Xxxxx Avenue 1,572,616
310851623L U-Haul Storage Myrtle Beach 605,545
310851623M U-Haul Storage North Boulevard 2,091,574
310851623N U-Haul Storage Odenton 1,853,234
310851623O U-Haul Storage Sterling 2,541,950
310851623P U-Haul Storage Westwood 962,106
310851623Q U-Haul Storage Xxxxxxx 917,767
310851623R U-Haul Storage Carlsbad 4,471,372
310851623S U-Haul Storage Rialto 1,284,026
5 310851628 Washington Plaza 2,215,000 2,185,045
6 310851629 South City Business Center 5,000,000 4,928,142
7 310900009 Live Oak Drive 4,840,000 4,823,970
8 310900039 Treasure Hills Plaza 2,200,000 2,171,854
9 310900040 Winepress Shopping Center 8,870,000 8,745,550
10 310900042 Staples-Oroville 1,955,000 1,945,462
11 310900044 IDC Building 8,720,000 8,699,856
12 310900045 Xxxxxxxxx Steel 3,300,000 3,287,603
13 310900048 River Park Drive 1,500,000 1,488,331
14 310900049 World Kitchen Warehouse 18,240,000 18,205,435
15 310900053 Xxxxxx Xxxxx Xxxxxx / Xxxxxxxxx Xxxx 2,600,000 2,585,317
16 310900055 Natrol Building No. 2 5,400,000 5,323,562
17 310900056 Ponca City Shopping Center 4,700,000 4,670,429
18 310900057 Monterey Townhouse Apartments 3,575,000 3,562,056
19 310900060 Technology Drive 1,370,000 1,360,555
20 310900062 Minolta Building 2,000,000 1,979,359
21 310900065 00xx Xxxxxx 3,000,000 2,986,269
22 310900066 Alcosta Boulevard 1,625,000 1,615,065
23 310900069 Office Max 1,725,000 1,692,530
24 310900070 Xxxx Road 1,300,000 1,292,247
25 310900073 Wal-Mart Land 5,400,000 5,353,589
26 310900074 Currell Centre 4,450,000 4,437,884
27 310900080 Raley's Annex 1,610,000 1,592,234
28 310900081 Washington Mutual Bank 1,100,000 1,065,406
29 310900082 LAX Logistics Center 4,750,000 4,736,283
30 310900084 Terminal Corporation Warehouse 3,925,000 3,893,841
31 310900085 East Maple Avenue 1,500,000 1,491,778
32 310900086 Mary's Vineyard 10,300,000 10,241,410
33 310900087 Steelhead Way 1,000,000 994,664
34 310900090 Golden Van Building 6,340,000 6,323,743
35 310900091 Xxxxxx Building 1,600,000 1,595,593
36 310900092 Walnut Estates Apartments 1,325,000 1,321,226
37 310900093 Xxxxxx Avenue Industrial 1,200,000 1,196,045
38 310900094 Luminate Building 3,000,000 2,993,769
39 310900095 Staples (Red Bluff) 1,900,000 1,278,721
40 310900096 Margay Avenue 1,700,000 1,693,850
41 000000000 Social Security Building 2,400,000 2,374,447
42 310900100 Bernoulli Circle 1,000,000 993,589
43 310900101 Bermuda Road Industrial 600,000 596,339
44 310900103 Pine Avenue Industrial 760,000 755,468
45 310900104 New Park West Office Building 1,000,000 991,937
46 310900106 Office Depot - Anaheim 3,905,000 3,873,910
47 310900107 Sacramento Road 1,402,000 1,395,803
48 310900108 Motorola Industrial Building 1,200,000 1,195,787
49 310900110 00 Xxxx Xxxxx Xxxxxxxxx Xxxxxxx 880,000 870,902
50 310900111 Xxxxxxx Road 2,200,000 2,196,721
51 310900112 Golden Town Center 10,000,000 9,976,206
52 310900113 Maple Trails Apartments 2,000,000 1,995,583
53 310900114 Ninth Street 1,700,000 1,695,935
54 310900116 Fort Xxxxx Pools 1,960,000 1,947,451
55 310900117 Oak Creek Apartments 1,020,000 1,018,526
56 310900118 Xxx Xxxx Center 2,400,000 2,395,057
57 310900119 Xxxxxxxx Plaza 1,900,000 1,890,031
58 310900120 Core-Xxxx Building 2,350,000 2,345,661
59 310900121 Xxxx Xxxxxxxxxx Building 2,000,000 1,995,852
60 310900122 Ford Industrial 1,500,000 1,497,689
61 310900123 South Point Village Apartments 4,946,000 4,936,735
62 310900126 Fabian Way 2,300,000 2,291,893
63 310900127 Eckerd Drug Store 1,650,000 1,646,385
64 310900130 San Francisco Medical Center 18,100,000 18,088,622
65 310900131 0000 Xxxxxx Xxx Xxxx 1,920,000 1,917,216
66 310900132 Walgreens 1,500,000 1,489,930
67 310900134 Juniper Building 760,000 758,222
68 310900136 00 Xxxxxxxx Xxxxxxxxx 1,000,000 998,427
69 310900138 Village East Apartments 1,600,000 1,597,579
70 310900140 MHC Portfolio 94,250,000 93,927,147
310900140A MHC- Mid Florida Lakes 24,000,000
310900140B MHC- Colonies of Margate 20,500,000
310900140C MHC- Xxxxxx Xxxx Xxxxxxx 00,000,000
000000000X XXX- Xxxxxxxxx Xxxxxxx 19,300,000
310900140E MHC- XxXxxx Xxxxx Xxxx 0,000,000
000000000X XXX- Xxx Xxxx Xxxxxxx 4,790,000
71 310900143 Highland Park Industrial 1,075,000 1,072,299
72 310900144 Forming Specialties Building 1,325,000 1,323,671
73 310900147 Countryview Apartments 2,500,000 2,497,091
74 310900148 A-Atlas - E. 00xx Xxxxxx 1,100,000 1,094,414
75 310900150 X-Xxxxx -X. Xxxxxx Xxxx 000,000 715,349
76 310900152 0000 X. Xxxxxxx Xxxxxxx 1,500,000 1,491,996
77 310900153 The Shops at Hampden Crossing 2,400,000 2,397,728
78 310900157 East Pointe Apartments 1,100,000 1,098,832
79 310900158 El Dorado Hills Business Park 4,600,000 4,588,925
80 310900159 Xxxxx & Greenway Shops 1,000,000 997,138
81 310900161 Alamo Self Storage 1,500,000 1,497,563
82 310900170 Shoreline Investments III 13,000,000 12,974,896
83 310900176 Pacific Rim Business Centre 4,800,000 4,794,744
84 310900179 Xxxxxxx Office Building 680,000 679,586
85 310900190 West Valley Corporate Center 9,875,000 9,864,583
86 310900195 MHC- Date Palm Country Club 15,750,000 15,732,127
87 310900067 Xxxxxxxx Drive 2,200,000 2,189,395
STATED
ORIGINAL
TERM TO REMAINING
INTEREST ACCRUAL ADMINISTRATIVE NET MORTGAGE MATURITY TERM TO
COUNT GROSS MORTGAGE RATE METHOD COST RATE RATE (MOS.) MATURITY (MOS.)
1 8.2300% 30/360 0.1032% 8.1268% 240 215
2 7.8600% Actual/360 0.0432% 7.8168% 120 102
3 8.6850% Actual/360 0.0432% 8.6418% 120 113
4 8.5230% Actual/360 0.0432% 8.4798% 120 107
5 8.0900% ACTUAL/360 0.0432% 8.0468% 120 106
6 7.7700% Actual/360 0.0432% 7.7268% 120 106
7 8.5550% Actual/360 0.0432% 8.5118% 120 113
8 9.0400% Actual/360 0.0432% 8.9968% 120 111
9 7.9550% Actual/360 0.0432% 7.9118% 180 175
10 8.3150% Actual/360 0.1032% 8.2118% 120 111
11 8.5600% Actual/360 0.0432% 8.5168% 120 115
12 8.1200% Actual/360 0.0432% 8.0768% 120 113
13 8.1100% Actual/360 0.1032% 8.0068% 120 112
14 8.6400% Actual/360 0.0432% 8.5968% 120 116
15 8.7600% Actual/360 0.0432% 8.7168% 120 113
16 8.3200% Actual/360 0.0432% 8.2768% 240 231
17 8.2400% Actual/360 0.0432% 8.1968% 120 113
18 8.2500% Actual/360 0.0432% 8.2068% 120 113
19 8.7500% Actual/360 0.1032% 8.6468% 120 112
20 8.5800% Actual/360 0.1032% 8.4768% 120 113
21 8.0800% Actual/360 0.0432% 8.0368% 120 115
22 8.3800% Actual/360 0.1032% 8.2768% 120 113
23 8.4900% Actual/360 0.1032% 8.3868% 180 173
24 8.5000% Actual/360 0.1032% 8.3968% 120 113
25 7.4300% Actual/360 0.0432% 7.3868% 240 235
26 8.8150% Actual/360 0.0432% 8.7718% 120 114
27 8.0200% Actual/360 0.1032% 7.9168% 180 175
28 8.6650% Actual/360 0.1032% 8.5618% 120 114
29 7.7900% Actual/360 0.0432% 7.7468% 120 115
30 7.9900% Actual/360 0.0432% 7.9468% 120 115
31 8.2350% Actual/360 0.1032% 8.1318% 120 114
32 8.8350% Actual/360 0.0432% 8.7918% 240 236
33 8.3700% Actual/360 0.1032% 8.2668% 120 114
34 8.2100% Actual/360 0.0432% 8.1668% 120 115
35 7.9600% Actual/360 0.1032% 7.8568% 120 115
36 7.8400% Actual/360 0.1032% 7.7368% 120 115
37 8.7100% Actual/360 0.1032% 8.6068% 120 116
38 8.3150% Actual/360 0.0432% 8.2718% 120 116
39 8.5600% Actual/360 0.1032% 8.4568% 120 115
40 8.2500% Actual/360 0.1032% 8.1468% 120 116
41 8.5500% Actual/360 0.0432% 8.5068% 180 176
42 8.0000% Actual/360 0.1032% 7.8968% 240 236
43 8.3500% Actual/360 0.1032% 8.2468% 240 236
44 8.5100% Actual/360 0.1032% 8.4068% 240 236
45 8.2650% Actual/360 0.1032% 8.1618% 180 177
46 7.9700% Actual/360 0.0432% 7.9268% 120 115
47 8.2500% Actual/360 0.1032% 8.1468% 120 115
48 8.4000% Actual/360 0.1032% 8.2968% 120 116
49 8.8500% Actual/360 0.1032% 8.7468% 180 176
50 8.1900% Actual/360 0.0432% 8.1468% 120 117
51 7.8090% Actual/360 0.0432% 7.7658% 120 116
52 8.0900% Actual/360 0.1032% 7.9868% 120 116
53 7.7900% Actual/360 0.1032% 7.6868% 120 116
54 8.0100% Actual/360 0.1032% 7.9068% 120 116
55 8.2900% Actual/360 0.1032% 8.1868% 120 117
56 8.3450% Actual/360 0.0432% 8.3018% 120 116
57 9.3800% Actual/360 0.1032% 9.2768% 240 236
58 8.7300% Actual/360 0.0432% 8.6868% 120 116
59 8.3200% Actual/360 0.1032% 8.2168% 120 116
60 8.0800% Actual/360 0.1032% 7.9768% 120 117
61 8.6800% Actual/360 0.0432% 8.6368% 120 116
62 8.3800% Actual/360 0.0432% 8.3368% 120 116
63 8.1200% Actual/360 0.1032% 8.0168% 120 116
64 8.3200% Actual/360 0.0432% 8.2768% 120 119
65 8.2800% Actual/360 0.1032% 8.1768% 120 117
66 7.6700% Actual/360 0.1032% 7.5668% 120 116
67 8.7100% Actual/360 0.1032% 8.6068% 120 117
68 8.0100% Actual/360 0.1032% 7.9068% 120 117
69 8.1400% Actual/360 0.1032% 8.0368% 120 117
70 7.8200% Actual/360 0.0432% 7.7768% 120 117
71 8.3850% ACTUAL/360 0.1032% 8.2818% 120 117
72 8.4100% Actual/360 0.1032% 8.3068% 120 118
73 7.8650% Actual/360 0.0432% 7.8218% 120 118
74 8.9500% Actual/360 0.1032% 8.8468% 180 178
75 8.9500% Actual/360 0.1032% 8.8468% 180 178
76 8.4500% Actual/360 0.1032% 8.3468% 180 178
77 8.6140% Actual/360 0.0432% 8.5708% 120 118
78 8.2050% Actual/360 0.1032% 8.1018% 120 118
79 8.5800% Actual/360 0.0432% 8.5368% 120 117
80 8.1100% Actual/360 0.1032% 8.0068% 180 179
81 8.7400% Actual/360 0.1032% 8.6368% 120 118
82 7.8800% Actual/360 0.0432% 7.8368% 120 118
83 7.7500% Actual/360 0.0432% 7.7068% 120 119
84 8.4700% Actual/360 0.1032% 8.3668% 120 119
85 7.9800% Actual/360 0.0432% 7.9368% 120 119
86 7.9600% Actual/360 0.0432% 7.9168% 119 117
87 8.8700% Actual/360 0.0432% 8.8268% 120 114
MORTGAGE MONTHLY
INTEREST RATE SCHEDULED DEBT SERVICE
ONLY FIRST PAYMENT FOLLOWING P&I COVERAGE
COUNT MONTHS DATE MATURITY DATE ARD ARD PAYMENTS RATIO APPRAISED VALUE
1 10/1/98 9/1/18 13,188 1.29 2,300,000
2 5/1/99 4/1/09 32,028 1.41 7,630,000
3 4/1/00 3/1/10 66,475 1.38 12,170,000
4 10/1/99 9/1/09 258,976 1.41
3,130,000
1,590,000
970,000
3,760,000
3,060,000
1,790,000
1,820,000
1,730,000
1,940,000
2,150,000
2,530,000
630,000
3,360,000
2,470,000
3,520,000
1,370,000
1,300,000
6,900,000
1,970,000
5 9/1/99 8/1/09 17,228 1.33 3,075,000
6 9/1/99 8/1/09 37,832 1.64 8,300,000
7 4/1/00 3/1/10 37,404 1.28 7,150,000
8 2/1/00 1/1/10 19,851 1.42 3,300,000
9 6/1/00 5/1/15 84,536 1.39 15,700,000
10 2/1/00 1/1/10 14,777 1.27 3,000,000
11 6/1/00 5/1/10 67,420 1.23 11,600,000
12 4/1/00 3/1/10 24,491 1.40 5,000,000
13 3/1/00 2/1/10 11,687 2.03 4,300,000
14 7/1/00 6/1/10 142,064 1.27 27,600,000
15 4/1/00 3/1/10 21,393 1.53 4,300,000
16 2/1/00 1/1/20 46,249 1.38 8,650,000
17 4/1/00 3/1/10 37,026 1.66 7,875,000
18 4/1/00 3/1/10 26,858 1.71 6,100,000
19 3/1/00 2/1/10 11,263 1.31 2,150,000
20 4/1/00 3/1/10 17,458 1.33 3,450,000
21 6/1/00 5/1/10 23,314 1.34 4,100,000
22 4/1/00 3/1/10 12,954 1.44 3,060,000
23 4/1/00 3/1/15 16,977 1.27 2,950,000
24 4/1/00 3/1/10 10,468 3.49 5,000,000
25 6/1/00 5/1/20 43,271 1.81 9,870,000
26 5/1/00 4/1/10 35,215 1.30 6,100,000
27 6/1/00 5/1/15 14,481 1.17 2,350,000
28 5/1/00 4/1/10 13,736 1.41 3,050,000
29 6/1/00 5/1/10 34,161 1.51 8,100,000
30 6/1/00 5/1/10 32,806 1.30 5,230,000
31 5/1/00 4/1/10 11,812 1.37 2,300,000
32 7/1/00 6/1/20 91,582 1.19 15,000,000
33 5/1/00 4/1/10 7,965 1.65 2,300,000
34 6/1/00 5/1/10 47,452 1.47 10,200,000
35 6/1/00 5/1/10 11,696 1.41 2,090,000
36 6/1/00 5/1/10 9,575 1.41 1,940,000
37 7/1/00 6/1/10 9,833 1.72 2,475,000
38 7/1/00 6/1/10 22,675 1.91 7,050,000
39 6/1/00 5/1/10 14,690 1.28 2,700,000
40 7/1/00 6/1/10 13,404 1.77 3,390,000
41 7/1/00 6/1/15 23,704 1.14 3,290,000
42 7/1/00 6/1/20 8,364 1.79 2,180,000
43 7/1/00 6/1/20 5,150 1.54 1,200,000
44 7/1/00 6/1/20 6,600 2.24 2,075,000
45 8/1/00 7/1/15 9,710 1.91 2,590,000
46 6/1/00 5/1/10 32,590 1.17 5,750,000
47 6/1/00 5/1/10 11,054 1.65 2,600,000
48 7/1/00 6/1/10 9,582 2.05 3,000,000
49 7/1/00 6/1/15 8,847 1.21 1,250,000
50 8/1/00 7/1/10 16,435 1.32 2,950,000
51 7/1/00 6/1/10 72,049 1.42 13,000,000
52 7/1/00 6/1/10 14,801 1.32 2,700,000
53 7/1/00 6/1/10 12,226 1.86 3,040,000
54 7/1/00 6/1/10 16,406 1.45 2,685,000
55 8/1/00 7/1/10 7,692 1.43 1,360,000
56 7/1/00 6/1/10 18,191 1.58 4,637,000
57 7/1/00 6/1/20 17,562 1.84 4,500,000
58 7/1/00 6/1/10 18,454 1.30 3,400,000
59 7/1/00 6/1/10 15,124 1.26 2,750,000
60 8/1/00 7/1/10 11,090 1.37 2,000,000
61 7/1/00 6/1/10 38,663 1.31 6,500,000
62 7/1/00 6/1/10 18,335 1.46 7,200,000
63 7/1/00 6/1/10 12,245 1.44 2,600,000
64 10/1/00 9/1/10 136,871 1.26 26,000,000
65 8/1/00 7/1/10 14,465 1.44 2,600,000
66 7/1/00 6/1/10 12,240 1.85 3,470,000
67 8/1/00 7/1/10 6,228 1.47 1,300,000
68 8/1/00 7/1/10 7,345 2.62 3,100,000
69 8/1/00 7/1/10 11,897 1.30 2,000,000
70 8/1/00 7/1/10 678,881 1.42
35,800,000
32,300,000
33,600,000
32,675,000
8,800,000
7,900,000
71 8/1/00 7/1/10 8,573 1.37 1,500,000
72 9/1/00 8/1/10 10,104 1.26 2,000,000
73 9/1/00 8/1/10 18,109 1.90 4,800,000
74 9/1/00 8/1/15 11,124 1.31 1,925,000
75 9/1/00 8/1/15 7,271 1.25 1,200,000
76 9/1/00 8/1/15 14,727 1.35 2,250,000
77 9/1/00 8/1/10 18,648 1.43 3,550,000
78 9/1/00 8/1/10 8,229 1.40 1,400,000
79 8/1/00 7/1/10 37,289 1.31 7,600,000
80 10/1/00 9/1/15 9,620 2.30 3,040,000
81 9/1/00 8/1/10 12,322 1.37 2,450,000
82 9/1/00 8/1/10 99,305 2.03 40,900,000
83 10/1/00 9/1/10 36,256 1.51 8,350,000
84 10/1/00 9/1/10 5,214 1.42 940,000
85 10/1/00 9/1/10 76,086 1.65 23,000,000
86 9/1/00 7/1/10 115,129 1.49 22,650,000
87 5/1/00 4/1/10 18,267 1.36 3,205,000
EFFECTIVE EFFECTIVE
CUT-OFF LOCKOUT LOCKOUT CALL PROTECTION
COUNT LTV PERIOD (MOS.) END DATE CALL PROTECTION END DATE
1 64.37% 59 7/31/03 YM and Declining Fee 3/31/18
2 54.03% 114 10/31/08 Defeasance 10/31/08
3 69.62% 117 12/31/09 Defeasance 12/31/09
4 68.99% 117 6/30/09 Defeasance 6/30/09
71.38%
75.32%
88.00%
62.02%
68.87%
90.02%
79.64%
60.47%
66.25%
69.72%
61.44%
95.00%
61.53%
74.16%
71.37%
69.41%
69.78%
64.05%
64.42%
5 71.06% 117 5/31/09 Defeasance 5/31/09
6 59.38% 117 5/31/09 Defeasance 5/31/09
7 67.47% 117 12/31/09 Defeasance 12/31/09
8 65.81% 117 10/31/09 Defeasance 10/31/09
9 55.70% 174 11/30/14 Defeasance 11/30/14
10 64.85% 117 10/31/09 Defeasance 10/31/09
11 75.00% 117 2/28/10 Defeasance 2/28/10
12 65.75% 117 12/31/09 Defeasance 12/31/09
13 34.61% 117 11/30/09 Defeasance 11/30/09
14 65.96% 117 3/31/10 Defeasance 3/31/10
15 60.12% 117 12/31/09 Defeasance 12/31/09
16 61.54% 237 10/31/19 Defeasance 10/31/19
17 59.31% 117 12/31/09 Defeasance 12/31/09
18 58.39% 116 11/30/09 Defeasance 11/30/09
19 63.28% 117 11/30/09 Defeasance 11/30/09
20 57.37% 117 12/31/09 Defeasance 12/31/09
21 72.84% 117 2/28/10 Defeasance 2/28/10
22 52.78% 117 12/31/09 Defeasance 12/31/09
23 57.37% 177 12/31/14 Defeasance 12/31/14
24 25.84% 117 12/31/09 Defeasance 12/31/09
25 54.24% 237 2/28/20 Defeasance 2/28/20
26 72.75% 117 1/31/10 Defeasance 1/31/10
27 67.75% 177 2/28/15 Defeasance 2/28/15
28 34.93% 117 1/31/10 Defeasance 1/31/10
29 58.47% 117 2/28/10 Defeasance 2/28/10
30 74.45% 117 2/28/10 Defeasance 2/28/10
31 64.86% 117 1/31/10 Defeasance 1/31/10
32 68.28% 237 3/31/20 Defeasance 3/31/20
33 43.25% 117 1/31/10 Defeasance 1/31/10
34 62.00% 114 11/30/09 Defeasance 11/30/09
35 76.34% 117 2/28/10 Defeasance 2/28/10
36 68.10% 117 2/28/10 Defeasance 2/28/10
37 48.33% 117 3/31/10 Defeasance 3/31/10
38 42.46% 117 3/31/10 Defeasance 3/31/10
39 47.36% 117 2/28/10 Defeasance 2/28/10
40 49.97% 117 3/31/10 Defeasance 3/31/10
41 72.17% 177 3/31/15 Defeasance 3/31/15
42 45.58% 237 3/31/20 Defeasance 3/31/20
43 49.69% 237 3/31/20 Defeasance 3/31/20
44 36.41% 237 3/31/20 Defeasance 3/31/20
45 38.30% 177 4/30/15 Defeasance 4/30/15
46 67.37% 117 2/28/10 Defeasance 2/28/10
47 53.68% 117 2/28/10 Defeasance 2/28/10
48 39.86% 117 3/31/10 Defeasance 3/31/10
49 69.67% 177 3/31/15 Defeasance 3/31/15
50 74.47% 117 4/30/10 Defeasance 4/30/10
51 76.74% 117 3/31/10 Defeasance 3/31/10
52 73.91% 117 3/31/10 Defeasance 3/31/10
53 55.79% 117 3/31/10 Defeasance 3/31/10
54 72.53% 117 3/31/10 Defeasance 3/31/10
55 74.89% 117 4/30/10 Defeasance 4/30/10
56 51.65% 117 3/31/10 Defeasance 3/31/10
57 42.00% 237 3/31/20 Defeasance 3/31/20
58 68.99% 117 3/31/10 Defeasance 3/31/10
59 72.58% 117 3/31/10 Defeasance 3/31/10
60 74.88% 117 4/30/10 Defeasance 4/30/10
61 75.95% 117 3/31/10 Defeasance 3/31/10
62 31.83% 117 3/31/10 Defeasance 3/31/10
63 63.32% 117 3/31/10 Defeasance 3/31/10
64 69.57% 117 6/30/10 Defeasance 6/30/10
65 73.74% 117 4/30/10 Defeasance 4/30/10
66 42.94% 117 3/31/10 Defeasance 3/31/10
67 58.32% 117 4/30/10 Defeasance 4/30/10
68 32.21% 117 4/30/10 Defeasance 4/30/10
69 79.88% 117 4/30/10 Defeasance 4/30/10
70 62.17% 117 4/30/10 Defeasance 4/30/10
66.81%
63.25%
57.84%
58.86%
69.76%
60.43%
71 71.49% 117 4/30/10 Defeasance 4/30/10
72 66.18% 117 5/31/10 Defeasance 5/31/10
73 52.02% 117 5/31/10 Defeasance 5/31/10
74 56.85% 177 5/31/15 Defeasance 5/31/15
75 59.61% 177 5/31/15 Defeasance 5/31/15
76 66.31% 177 5/31/15 Defeasance 5/31/15
77 67.54% 117 5/31/10 Defeasance 5/31/10
78 78.49% 117 5/31/10 Defeasance 5/31/10
79 60.38% 117 4/30/10 Defeasance 4/30/10
80 32.80% 177 6/30/15 Defeasance 6/30/15
81 61.13% 117 5/31/10 Defeasance 5/31/10
82 31.72% 117 5/31/10 Defeasance 5/31/10
83 57.42% 117 6/30/10 Defeasance 6/30/10
84 72.30% 117 6/30/10 Defeasance 6/30/10
85 42.89% 117 6/30/10 Defeasance 6/30/10
86 69.46% 116 4/30/10 Defeasance 4/30/10
87 68.31% 117 1/31/10 Defeasance 1/31/10
COUNT ADDRESS FEE OR LEASEHOLD INTEREST LIEN POSITION
1 00000 Xxxxxxxx Xxxxxxxxx Fee First
2 00000 Xxxxxxxx Xxxxxx Fee First
3 31863 & 00000-00000 Xxx Xxxxxx Xxxxxx Fee First
4 First
000 Xxxx Xxxx Xxxxxxxxx Fee
00000 X. 00xx Xxxxxx Fee
000 Xxxxxxx 000 Xxxxxx Fee
0000 Xxxxxxxx Xxxxxx Fee
0000 Xxxxxxxx Xxxxxx Fee
000 Xxxxxx Xxxx Xxxx Fee
000 Xxxxx Xxxx Fee
0000 Xxxxxxx Xxxx Fee
000 Xxx Xxxxx Fee
0000 Xxxxxxxxxx Xxxx Fee
0000 Xxxxx Xxxxxx Fee
0000 X. Xxxxx Xxxxxxx Xxx
0000 Xxxxx Xxxxxxxxx Fee
0000 Xxxxxxxxx Xxxx Fee
00000 Xxx Xx Xxxx Fee
5919 Financial Plaza Fee
0000 Xxxxxxxx Xxxxxxxxxx Fee
0000 Xxxxx Xxx Xxxxx Fee
0000 X. Xxxxxxxx Xxxxxxxxx Fee
5 000 Xxxx 00xx Xxxxxx Fee First
6 0000 Xxxx Xxxxxx Fee First
7 815 & 000 Xxxx Xxx Xxxxx Fee First
8 1514 South 77 Sunshine Strip Fee First
9 0000 Xxxx Xxxx Xxxxxx Fee First
10 2150 Feather River Boulevard Fee First
11 00000 Xxx Xxxx Xxxxx Fee First
12 000 Xxxxx Xxxxxxx Fee First
13 0000 Xxxxx Xxxx Xxxxx Fee First
14 0000 Xxxxxxxxxx Xxxxx Fee First
15 0000 Xxxxxx Xxxxx Xxxxxx Fee First
16 0000 Xxxxxxxxxx Xxxxxx & 0000 Xxxxxx Xxxxxx Fee First
17 0000 Xxxxx 00xx Xxxxxx Leasehold First
18 000 Xxxxxxxx Xxxxxx Fee First
19 00000 Xxxxxxxxxx Xxxxx Fee First
20 0000 Xx Xxxx Xxxxxx Fee First
21 00-00 00xx Xxxxxx Xxx Xxxxx
00 00000 & 00000 Xxxxxxx Xxxxxxxxx Fee First
23 0000 X. Xxxx Xxxxxx Fee First
24 00000 Xxxx Xxxx Fee First
25 0000 X Xxxxxxxx Xxxxxx Fee First
26 0000 Xxxxxxx Xxxxxxxxx Fee First
27 000 X. Xxxxxxx Xxxxxx Fee First
28 0000 Xxxxxx Xxxxxx Fee First
29 0000 X. 000xx Xxxxxx & 0000 X. 000xx Xxxxxx Fee First
30 0000 Xxxxxxxxx Xxxx Fee First
31 0000 Xxxx Xxxxx Xxxxxx Fee First
32 0000-0000 X. Xxxxx Xxxxxx Fee First
33 000 Xxxxx Xxxxxxxxx Xxx Fee First
34 000 Xxxxxxx Xxxxxx Fee First
35 0000 XxXxxxxx Xx. XX Fee First
36 0000-0000 00xx Xxxxxx XX Fee First
37 3310, 3314 & 0000 Xxxxxx Xxx Fee First
38 0000 Xx Xxxxxx Xxxx Fee First
39 000 Xxxxx Xxxx Xxxxxx Fee First
40 17050 & 00000 Xxxxxx Xxxxxx Fee First
41 00000 Xxxxxxxx Xxxxxxxxx Fee First
42 000 Xxxxxxxxx Xxxxxx Fee First
43 7115 & 0000 Xxxxxxx Xxxx Fee First
44 000 Xxxx Xxxxxx Fee First
45 00000 Xxxxx Xxxxxxxxx Fee First
46 0000 X. Xxxxxxx Xxxxxxxxx Fee First
47 0000 Xxxxx Xxxxxxxxxx Xxxx Fee First
48 00 Xxxxx Xxxxxxxx Xxxxx Fee First
49 00 Xxxx Xxxxx Xxxxxxxxx Xxxxxxx Fee First
50 13913-13933 Xxxxxxx Road Fee First
51 17211, 17205, 17121, 00000 Xxxxx Xxxxxx Xxxx Fee First
52 0000 Xxxxxxxxx Xxxx Fee First
53 0000 Xxxxx Xxxxxx Fee First
54 0000 Xxxxxxxxxx Xxxx Fee First
55 000-000 Xxx Xxxx Xxxxx Fee First
56 0000 Xxxx Xxxxxx Fee First
57 0000 Xxxx Xxxxxxxxx Xxxxxx Fee First
58 0000 Xxxx Xxxxx Fee First
59 000 Xxxxxxxx Xxxxx Fee First
60 000-000 Xxxx Xxxxxx Fee First
61 6808 IH-35 S. Fee First
62 3780 - 0000 Xxxxxx Xxx Fee First
63 0000 Xxxxxxxxxx Xxxx Fee First
64 0000 Xxxxxxxxxx Xxxxxx Leasehold First
65 0000 Xxxxxx Xxx Xxxx Fee First
66 0000 Xxxx Xxxxx Xxxxx Xxxxx Fee First
67 000 X. Xxxxxxx Xxxxxx Fee First
68 00 Xxxxxxxx Xxxxxxxxx Fee First
69 610-614 Orion Road Fee First
70 First
000 Xxxxxx Xxxxx Fee
0000 Xxxxxxxxx Xxxxx Fee
000 Xxxxxxxx Xxxx Fee
0000 Xxxxx Xxxxxxx Xxxxx, X.X. Fee
0000 Xxxxxxxx Xxxxxx Fee
0000 Xxxx Xxxxxxx Xxxx Fee
71 000-000 Xxxxx Xxxxxx 61 Fee First
72 0000 X. Xxxxxx Xxxxxxx Fee First
73 #1 Doeskin Drive Fee First
74 0000 X. 00xx Xxxxxx Fee First
75 0000 X. Xxxxxx Xxxx Fee First
76 5508 X. Xxxxxxx Highway Fee First
77 00000 Xxxx Xxxxxxx Xxxxxx Fee First
78 000 Xxxxxxxx Xxxx Fee First
79 1115 & 0000 Xxxxxxxxx Xxx Fee First
80 0000-0000 Xxxx Xxxxxxxx Xxxx Fee First
81 0000 Xxxxx Xxxxxxx Xxxxxxxxx Fee First
82 1200, 1202, 1206, 1210, 1220 & 0000 Xxxxxxxxxx Xxxx Leasehold First
83 9543 & 9565 Xxxxxxxx Xxxxx Drive & 2220 Xxxxx Xxxx Fee First
84 0000 X. 00xx Xxxxx Fee First
85 0000-0000 Xxxx Xxxxxx Fee First
86 36 Date Palm Drive Leasehold First
87 311-A and 000-X Xxxxxxxx Xxxxx Fee First
SCHEDULE III
XXXXXX XXXXXXX LOAN SCHEDULE
INTEREST
ORIGINAL CUT-OFF GROSS ACCRUAL
COUNT LOAN NUMBER LOAN/PROPERTY NAME BALANCE BALANCE MORTGAGE RATE METHOD
------------------------------------------------------------------------------------------------------------------------------------
1 9905051 000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx 5,330,000 5,286,688 8.0300% Actual/360
2 9905316 Green Arbor Apartments 5,590,000 5,536,028 7.3520% Actual/360
3 10006313 Zocallo Plaza 7,500,000 7,476,495 8.3200% Actual/360
4 10006364 Remington Health Center 3,425,000 3,425,000 8.4200% Actual/360
5 10006389 Roseburg Square 2,800,000 2,796,028 8.3500% Actual/360
6 10006546 Town Center Office Building 3,640,000 3,635,399 8.7100% Actual/360
7 10006891 Trolley Square 29,750,000 29,725,099 9.0300% Actual/360
------------------------------------------------------------------------------------------------------------------------------------
STATED
ORIGINAL
TERM TO REMAINING INTEREST
ADMINISTRATIVE NET MORTGAGE MATURITY TERM TO ONLY FIRST PAYMENT MATURITY
COUNT COST RATE RATE (MOS.) MATURITY (MOS.) MONTHS DATE DATE
---------------------------------------------------------------------------------------------------------------------------------
1 0.0532% 7.9768% 120 106 9/1/99 8/1/09
2 0.0532% 7.2988% 120 106 9/1/99 8/1/09
3 0.0532% 8.2668% 120 114 5/1/00 4/1/10
4 0.0532% 8.3668% 120 114 12 5/1/00 4/1/10
5 0.0532% 8.2968% 120 117 8/1/00 7/1/10
6 0.0532% 8.6568% 120 117 8/1/00 7/1/10
7 0.0532% 8.9768% 120 118 9/1/00 8/1/30
---------------------------------------------------------------------------------------------------------------------------------
MORTGAGNE MONTHLY
RATE SCHEDULED DEBT SERVICE EFFECTIVE EFFECTIVE
FOLLOWING P&I COVERAGE CUT-OFF LOCKOUT LOCKOUT
COUNT ARD ARD PAYMENTS RATIO APPRAISED VALUE LTV PERIOD (MOS.) END DATE
----------------------------------------------------------------------------------------------------------------------------------
1 39,221 1.44 8,000,000 66.08% 117 4/30/09
2 38,521 1.43 8,350,000 66.30% 117 4/30/09
3 56,715 1.45 12,500,000 59.81% 117 12/31/09
4 26,141 1.36 4,760,000 71.95% 117 12/31/09
5 21,233 1.58 4,650,000 60.13% 117 3/31/10
6 28,532 1.49 7,200,000 50.49% 117 3/31/10
7 8/1/10 TBD 240,018 1.34 46,000,000 64.62% 117 4/30/10
----------------------------------------------------------------------------------------------------------------------------------
CALL PROTECTION
COUNT CALL PROTECTION END DATE ADDRESS FEE OR LEASEHOLD INTEREST LIEN POSITION
-----------------------------------------------------------------------------------------------------------------------------
1 Defeasance 4/30/09 000 Xxxx Xxxxxx Fee First
2 Defeasance 4/30/09 10601 Xxxx Road Fee First
3 Defeasance 12/31/09 15505-15507 N. Scottsdale Road Fee First
4 Defeasance 12/31/09 000 Xxxx Xxxxxxxxx Xxxxx Fee First
5 Defeasance 3/31/10 000-000 Xxxx Xxxxxxxx Xxxxxx Fee First
6 Defeasance 3/31/10 00000 Xxxx Xxxxxx Xxxxx Fee First
7 Defeasance 4/30/10 700 East and 000 Xxxxx Xxxxxxx Fee First
-----------------------------------------------------------------------------------------------------------------------------
S-III-1
SCHEDULE IV
SERVICING FEE RATE SCHEDULE
ADMINISTRATIVE XXXXX FARGO
COUNT LOAN NUMBER COST RATE SERVICING FEE
-----------------------------------------------------------
1 310900140 0.0432% 0.0400%
310900140A
310900140B
310900140C
310900140D
310900140E
310900140F
-----------------------------------------------------------
2 28983 0.0532% 0.0500%
3 310851623 0.0432% 0.0400%
310851623A
310851623B
310851623C
310851623D
310851623E
310851623F
310851623G
310851623H
310851623I
310851623J
310851623K
310851623L
310851623M
310851623N
310851623O
310851623P
310851623Q
310851623R
310851623S
-----------------------------------------------------------
4 10006891 0.0532% 0.0500%
5 28326 0.0532% 0.0500%
6 28750 0.0532% 0.0500%
7 310900049 0.0432% 0.0400%
8 310900130 0.0432% 0.0400%
-----------------------------------------------------------
9 26908 0.0532% 0.0500%
10 29198 0.0532% 0.0500%
11 310900195 0.0432% 0.0400%
12 29083 0.0532% 0.0500%
29083A
29083B
-----------------------------------------------------------
13 29106 0.0532% 0.0500%
14 28225 0.0532% 0.0500%
15 29453 0.0532% 0.0500%
16 310900170 0.0432% 0.0400%
17 26188 0.0532% 0.0500%
26188A
26188B
-----------------------------------------------------------
18 29476 0.0532% 0.0500%
29476A
29476B
19 310900086 0.0432% 0.0400%
20 310900112 0.0432% 0.0400%
-----------------------------------------------------------
21 310900190 0.0432% 0.0400%
22 27752 0.0532% 0.0500%
23 29028 0.0532% 0.0500%
29028A
29028B
29028C
29028D
-----------------------------------------------------------
24 310900040 0.0432% 0.0400%
25 29136 0.0532% 0.0500%
26 310900044 0.0432% 0.0400%
27 29676 0.0532% 0.0500%
28 310851554 0.0432% 0.0400%
29 28636 0.0532% 0.0500%
-----------------------------------------------------------
30 29458 0.0532% 0.0500%
29458A
29458B
29458C
29458D
-----------------------------------------------------------
31 10006313 0.0532% 0.0500%
32 26301 0.0532% 0.0500%
33 29003 0.0532% 0.0500%
34 28935 0.0532% 0.0500%
35 28431 0.0532% 0.0500%
-----------------------------------------------------------
36 310900090 0.0432% 0.0400%
37 9905316 0.0532% 0.0500%
38 310900055 0.0432% 0.0400%
39 310900073 0.0432% 0.0400%
40 26508 0.0532% 0.0500%
-----------------------------------------------------------
41 9905051 0.0532% 0.0500%
42 28244 0.0532% 0.0500%
43 310851629 0.0432% 0.0400%
44 310900123 0.0432% 0.0400%
45 310900009 0.0432% 0.0400%
-----------------------------------------------------------
46 310900176 0.0432% 0.0400%
47 310900082 0.0432% 0.0400%
48 310900056 0.0432% 0.0400%
49 310900158 0.0432% 0.0400%
50 28686 0.0532% 0.0500%
-----------------------------------------------------------
51 28835 0.0532% 0.0500%
52 310900074 0.0432% 0.0400%
53 28387 0.0532% 0.0500%
54 310851537 0.0432% 0.0400%
55 28919 0.0532% 0.0500%
-----------------------------------------------------------
56 28850 0.0532% 0.0500%
57 28995 0.0532% 0.0500%
58 310900084 0.0432% 0.0400%
59 310900106 0.0432% 0.0400%
60 29987 0.0532% 0.0500%
-----------------------------------------------------------
61 10006546 0.0532% 0.0500%
62 310900057 0.0432% 0.0400%
63 29720 0.0532% 0.0500%
64 28494 0.0532% 0.0500%
65 29643 0.0532% 0.0500%
-----------------------------------------------------------
66 28009 0.0532% 0.0500%
67 10006364 0.0532% 0.0500%
68 25310 0.0532% 0.0500%
69 28002 0.0532% 0.0500%
70 28104 0.0532% 0.0500%
-----------------------------------------------------------
71 29570 0.0532% 0.0500%
29570A
29570B
72 310900045 0.0432% 0.0400%
73 28868 0.0532% 0.0500%
-----------------------------------------------------------
74 29267 0.0532% 0.0500%
75 310900065 0.0432% 0.0400%
76 310900094 0.0432% 0.0400%
77 10006389 0.0532% 0.0500%
78 310900053 0.0432% 0.0400%
-----------------------------------------------------------
79 310900147 0.0432% 0.0400%
80 310900097 0.0432% 0.0400%
81 310900118 0.0432% 0.0400%
82 310900153 0.0432% 0.0400%
83 310900120 0.0432% 0.0400%
-----------------------------------------------------------
84 310900126 0.0432% 0.0400%
85 310851628 0.0432% 0.0400%
86 310900039 0.0432% 0.0400%
87 310928353 0.0432% 0.0400%
88 310900111 0.0432% 0.0400%
-----------------------------------------------------------
89 29512 0.0532% 0.0500%
90 28762 0.0532% 0.0500%
91 25481 0.0532% 0.0500%
92 26777 0.0532% 0.0500%
93 26216 0.0532% 0.0500%
-----------------------------------------------------------
94 28353 0.3032% 0.3000%
28353A
28353B
28353C
28353D
28353E
28353F
-----------------------------------------------------------
95 28550 0.0532% 0.0500%
96 29397 0.0532% 0.0500%
97 310900062 0.1032% 0.1000%
98 310900113 0.1032% 0.1000%
99 310900121 0.1032% 0.1000%
-----------------------------------------------------------
100 29914 0.0532% 0.0500%
101 310900116 0.1032% 0.1000%
102 310900042 0.1032% 0.1000%
103 310900131 0.1032% 0.1000%
104 310900119 0.1032% 0.1000%
-----------------------------------------------------------
105 310900069 0.1032% 0.1000%
106 310900096 0.1032% 0.1000%
107 310900114 0.1032% 0.1000%
108 310900127 0.1032% 0.1000%
109 310900066 0.1032% 0.1000%
-----------------------------------------------------------
110 310900080 0.1032% 0.1000%
111 310900091 0.1032% 0.1000%
112 310900138 0.1032% 0.1000%
113 310851150 0.1032% 0.1000%
114 310900048 0.1032% 0.1000%
-----------------------------------------------------------
115 310900085 0.1032% 0.1000%
116 310900122 0.1032% 0.1000%
117 310900132 0.1032% 0.1000%
118 310900152 0.1032% 0.1000%
119 310900161 0.1032% 0.1000%
-----------------------------------------------------------
120 310900107 0.1032% 0.1000%
121 310900060 0.1032% 0.1000%
122 310900092 0.1032% 0.1000%
123 310900144 0.1032% 0.1000%
124 28578 0.0532% 0.0500%
-----------------------------------------------------------
125 310900070 0.1032% 0.1000%
126 310900095 0.1032% 0.1000%
127 310900093 0.1032% 0.1000%
128 310900108 0.1032% 0.1000%
129 26843 0.0532% 0.0500%
26843A
26843B
-----------------------------------------------------------
130 310900081 0.1032% 0.1000%
131 310900148 0.1032% 0.1000%
132 310900157 0.1032% 0.1000%
133 310900143 0.1032% 0.1000%
134 310900117 0.1032% 0.1000%
-----------------------------------------------------------
135 310900087 0.1032% 0.1000%
136 310900100 0.1032% 0.1000%
137 310900104 0.1032% 0.1000%
138 310900136 0.1032% 0.1000%
139 310900159 0.1032% 0.1000%
-----------------------------------------------------------
140 310900110 0.1032% 0.1000%
141 310900103 0.1032% 0.1000%
142 310900134 0.1032% 0.1000%
143 310900150 0.1032% 0.1000%
144 310900179 0.1032% 0.1000%
145 310900101 0.1032% 0.1000%
-----------------------------------------------------------
TOTALS/WEIGHTED AVG.
NOTES/FOOTNOTES
---------------
*** As Used above, "WFBNA" represents Xxxxx Fargo Bank, National Association;
"BSFI" represents Bear Xxxxxxx, Funding Inc.; "MSMCI" represents Xxxxxx Xxxxxxx
Mortgage Capital, Inc.
*** Due to fluctuations in actual day count, interest only payments may be
approximate in the case
of loans that accrue on an Actual/360 basis.
*** Loan #28225 amortizes pursuant to a fixed schedule. Annual debt service and
the corresponding DSCR have been approximated to reflect average over the term.
*** Loan #28983 pays pursuant to a fixed semi-annual schedule. Annual debt
service and the corresponding DSCR are based on the first year of full payments
scheduled under the mortgage loan.
*** Loan #28353 permits limited property substitution at any time. No lockout
period applies.
*** Loan #28750 provides pre-defeasance lockout tied to the securitization of
the companion loan - which has not yet occurred. No assurance can be provided
that the companion loan will be sold pursuant to a securitization.
*** In certain limited cases, the Annual Replacement Reserve Per Square Foot or
Unit may represent a single initial deposit made by the borrower at the closing
of the related mortgage loan.
*** As Used above, "WFBNA" represents Xxxxx Fargo Bank, National Association;
"BSFI" represents Bear Xxxxxxx, Funding Inc.; "MSMCI" represents Xxxxxx Xxxxxxx
Mortgage Capital, Inc.
*** In the case of certain loans, the interest rate, balance or loan terms may
have been subject to a one time modification under the related mortgage note
following origination. As a result, for analytical purposes, it may be difficult
to derive the actual Cut-Off Date Balance (detailed herein) using the actual
applicable loan terms.
(a) 1999 / T-12 Net Operating Income may reflect the property's historical
operating performance over the most recent 12 month period for which operating
statements are available.
1999 Net Operating Income reflects the property's historical Net Operating
Performance for a previous 12 month period which, in most cases, is equivalent
to calendar year 1999.
