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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: July 13, 1999
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(Date of earliest event reported)
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 333-61783 3411414
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(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
245 Park Avenue, New York, NY 10167
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(Address of principal executive offices)
Registrant's telephone number, including area code: (212) 272-2000
ITEM 5. OTHER EVENTS
On July 1, 1999, Bear Stearns Commercial Mortgage Securities
Inc. (the "Company") caused the issuance, pursuant to a Pooling and Servicing
Agreement, dated as of July 1, 1999 (the "Pooling and Servicing Agreement"), by
and among the Company, as depositor, Wells 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
Norwest Bank Minnesota, National Association as Paying Agent of the
Certificates, issued in the following classes: 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 R-I, Class R-II and Class R-III. The Class A-1,
Class A-2, Class X, Class B, Class C, Class D, Class E and Class F Certificates,
with an aggregate scheduled principal balance, as of July 1, 1999, of
$999,659,000, were sold to Bear, Stearns & Co. Inc., Morgan Stanley & Co. and
Norwest Investment Services, Inc., as underwriters (the "Underwriters"),
pursuant to an Underwriting Agreement dated as of June 15, 1999, by and between
the Company and the Underwriters, as supplemented by the Terms Agreement dated
as of June 15, 1999, by and between the Company and the Underwriter (the "Terms
Agreement").
Capitalized terms used herein and not defined herein have the
same meanings ascribed to such terms in the Pooling and Servicing Agreement.
Attached as Exhibit 1.1 is the Underwriting Agreement and the
Terms Agreement, as Exhibit 4.1 is the Pooling and Servicing Agreement and as
Exhibit 4.2 are the two Mortgage Loan Purchase Agreements for Bear Stearns
Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 (the "Certificates").
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Not applicable.
(b) Not applicable.
(c) Exhibits
The exhibit number corresponds with Item 601(a) of Regulation S-K.
Exhibit No. Description
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Exhibit 1.1 Underwriting Agreement and Terms Agreement each dated as of
June 15, 1999, and each between the Registrant, Bear,
Stearns & Co. Inc., Morgan Stanley & Co. Incorporated and
Norwest Investment Services, Inc.
Exhibit 4.1 Pooling and Servicing Agreement dated as of July 1, 1999, by
and among the Registrant, as depositor, Wells 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 Norwest Bank Minnesota, National Association, as
paying agent.
Exhibit 4.2 Mortgage Loan Purchase Agreement dated as of July 1, 1999,
by and between the Registrant, as purchaser and Bear,
Stearns Funding, Inc., as seller.
Exhibit 4.3 Mortgage Loan Purchase Agreement dated as of July 1, 1999,
by and between the Registrant, as purchaser and Wells Fargo
Bank, National Association, as seller.
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on behalf of the
Registrant by the undersigned thereunto duly authorized.
BEAR STEARNS COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ Michael A. Forastere
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Name: Michael A. Forastere
Title: Vice President
Date: July 13, 1999
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EXHIBIT INDEX
Item 601(a) of Regulation S-K
Exhibit No. Description
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Exhibit 1.1 Underwriting Agreement and Terms Agreement each dated as
of June 15, 1999, and each between the Registrant, Bear,
Stearns & Co. Inc., Morgan Stanley & Co. Incorporated and
Norwest Investment Services, Inc.
Exhibit 4.1 Pooling and Servicing Agreement dated as of July 1, 1999,
by and among the Registrant, as depositor, Wells 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 Norwest Bank Minnesota, National
Association, as paying agent.
Exhibit 4.2 Mortgage Loan Purchase Agreement dated as of July 1, 1999,
by and between the Registrant, as purchaser and Bear,
Stearns Funding, Inc., as seller.
Exhibit 4.3 Mortgage Loan Purchase Agreement dated as of July 1, 1999,
by and between the Registrant, as purchaser and Wells Fargo
Bank, National Association, as seller.
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BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
June 15, 1999
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10020
Norwest Investment Services, Inc.
608 Second Avenue South, Ninth Floor
Minneapolis, Minnesota 55479-0140
Dear Sirs:
1. Introduction. Bear Stearns Commercial Mortgage Securities Inc., a
Delaware corporation (the "Company"), from time to time proposes to issue and
sell Commercial Mortgage Pass-Through Certificates ("Certificates") in various
series (each a "Series"), and, within each Series, in various classes, in one or
more offerings on terms determined at the time of sale. The Certificates of each
series will be issued pursuant to a pooling and servicing agreement to be dated
as of July 1, 1999 (the "Pooling and Servicing Agreement") among the Company, as
depositor, Wells Fargo Bank, National Association, as servicer ("Wells Fargo" or
the "Servicer"), GMAC Commercial Mortgage Corporation, as special servicer (the
"Special Servicer"), LaSalle Bank National Association, as trustee (the
"Trustee"), ABN AMRO Bank N.V., as fiscal agent, and Norwest Bank Minnesota,
National Association, as paying agent. Upon issuance, the Certificates of each
series will evidence undivided interests in the Trust Fund (as defined in the
Pooling and Servicing Agreement) established for such series containing mortgage
loans secured by commercial properties, multi-family properties and manufactured
housing communities (the "Mortgage Loans"), all as described in the Prospectus
(as defined below). The Mortgage Loans will be purchased by the Company from
Bear Stearns Funding, Inc. ("BSFI") and Wells Fargo (together with BSFI, the
"Mortgage Loan Sellers") pursuant to two Mortgage Loan Purchase and Sale
Agreements (collectively, together with any supplements thereto, the "Mortgage
Loan Purchase Agreements"), each by and between the Company and the applicable
Mortgage Loan Seller. The Trust Fund, or a portion thereof, may make one or more
elections to qualify as a real estate mortgage investment conduit ("REMIC")
under the Internal Revenue Code, all as described in the Prospectus (as defined
below). Terms not defined herein which are defined in the Pooling and Servicing
Agreement shall have the meanings ascribed to them in the Pooling and Servicing
Agreement.
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Whenever the Company determines to make an offering of a Series of
Certificates (an "Offering") through you or an underwriting syndicate managed or
co-managed by you, it will offer to enter into an agreement ("Terms Agreement")
providing for the sale of such Certificates to, and the purchase and offering
thereof by, you and such other co-managers and underwriters, if any, which have
been selected by you and have authorized you to enter into such Terms Agreement
and other related documentation on their behalf (the "Underwriters," which term
shall include you whether acting alone in the sale of Certificates or as a
co-manager or as a member of an underwriting syndicate). The Terms Agreement
relating to each Offering shall specify the principal amount of Certificates to
be issued and their terms not otherwise specified in the Pooling and Servicing
Agreement, the price at which the Certificates are to be purchased by each of
the Underwriters from the Company and the initial public offering price or the
method by which the price at which the Certificates are to be sold will be
determined. The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Company. Each Offering governed by
this Agreement, as supplemented by the applicable Terms Agreement, shall inure
to the benefit of and be binding upon the Company and each of the Underwriters
participating in the Offering of such Certificates.
The Company hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to you as of the date hereof, and to the Underwriters named in the
applicable Terms Agreement as of the date of such Terms Agreement, as follows:
(a) A registration statement, including a prospectus, and such amendments
thereto as may have been required to the date hereof, relating to the
Certificates and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "Act"), have been filed
with the Securities and Exchange Commission ("Commission") (copies of which have
been provided to you) and such registration statement as amended has become
effective. Such registration statement as amended and the prospectus relating to
the sale of Certificates constituting a part thereof as from time to time
amended or supplemented (including any prospectus filed with the Commission
pursuant to Rule 424 of the rules and regulations of the Commission ("Rules and
Regulations") under the Act, including any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before
the Effective Date of the Registration Statement or the date of the Prospectus
Supplement, are respectively referred to herein as the "Registration Statement"
and the "Prospectus"; provided, however, that a supplement to the Prospectus (a
"Prospectus Supplement") prepared pursuant to Section 5(a) hereof shall be
deemed to have supplemented the Prospectus only with respect to the Offering of
the Series of Certificates to which it relates. The conditions of Rule 415 under
the Act have been satisfied with respect to the Company and the Registration
Statement, no stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for such purpose are pending or, to
the Depositor's knowledge, threatened by the Commission.
(b) On the effective date of the Registration Statement, the Registration
Statement and the Prospectus conformed in all material respects to the
requirements of the Act
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and the Rules and Regulations, and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and on the date of
each Terms Agreement, the Registration Statement and the Prospectus will conform
in all material respects to the requirements of the Act and the Rules and
Regulations, and the Prospectus will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading; provided, however, that
the foregoing does not apply to (i) statements or omissions in such documents
based upon written information furnished to the Company by any Underwriter
specifically for use therein or (ii) any Current Report (as defined in Section
5(b) below) or in any amendment thereof or supplement thereto, incorporated by
reference in such Registration Statement or such Prospectus (or any amendment
thereof or supplement thereto); and provided, further, that the Company makes no
representations or warranties with respect to any information provided by Wells
Fargo for inclusion into the Prospectus.
(c) This Agreement has been, and the Pooling and Servicing Agreement, when
executed and delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by the Company and each constitutes, or will
constitute when so executed and delivered, a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by (A) bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally, (B)
general principles of equity and the discretion of the court (regardless of
whether enforceability of such remedies is considered in a proceeding in equity
or at law) and (C) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport or are construed to provide
indemnification from securities law liabilities.
(d) At the applicable Closing Date, each applicable Terms Agreement will
have been duly authorized, executed and delivered by the Company and will be a
legal, valid and binding obligation of the Company enforceable in accordance
with its terms, except as enforceability may be limited by (A) bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the rights of
creditors generally, (B) general principles of equity and the discretion of the
court (regardless of whether enforceability of such remedies is considered in a
proceeding in equity or at law) and (C) public policy considerations underlying
the securities laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement that purport or are
construed to provide indemnification from securities law liabilities.
(e) The issuance of the Certificates has been duly authorized by the
Company and, when such Certificates are executed and authenticated in accordance
with the Pooling and Servicing Agreement and delivered against payment pursuant
to this Agreement, such Certificates will be validly issued and outstanding; and
the Certificates will be entitled to the benefits provided by the Pooling and
Servicing Agreement. The Certificates are in all material respects in the form
contemplated by the Pooling and Servicing Agreement.
(f) Neither the Company nor the Trust Fund is or, as a result of the offer
and sale of the Certificates as contemplated in this Agreement will become, an
"investment
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company" as defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"), or an "affiliated person" of any such "investment
company" that is registered or is required to be registered under the Investment
Company Act (or an "affiliated person" of any such "affiliated person"), as such
terms are defined in the Investment Company Act.
(g) The following representations and warranties made by the Company in
the Pooling and Servicing Agreement and representations and warranties made in
any Officer's Certificate of the Company delivered pursuant to the Pooling and
Servicing Agreement will be true and correct at the time made and/or on the
Closing Date, as applicable:
(i) 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 the Pooling and Servicing
Agreement and to create the trust pursuant hereto;
(ii) The execution and delivery by the Depositor of
the Pooling and Servicing Agreement has been duly authorized by all
necessary corporate action on the part of the Depositor; neither the
execution and delivery of the Pooling and Servicing Agreement, nor the
consummation of the transactions therein 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 the Pooling and Servicing Agreement or (ii) the business,
operations, financial condition, properties or assets of the Depositor;
(iii) The execution, delivery and performance by the
Depositor of the Pooling and Servicing Agreement and the consummation
of the transactions contemplated thereby 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;
(iv) The Pooling and Servicing Agreement has been
duly executed and delivered by the Depositor and, assuming due
authorization, execution and delivery by the Trustee, constitutes a
valid and binding obligation of the Depositor enforceable against it in
accordance with its terms;
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(v) 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 the Pooling and
Servicing 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 the Pooling and Servicing Agreement;
and
(vi) Immediately prior to the consummation of the
transactions contemplated in the Pooling and Servicing Agreement, the
Depositor had good title to and was the sole owner of each Mortgage
Loan free and clear of any and all adverse claims, charges or security
interests (including liens arising under the federal tax laws or the
Employee Retirement Income Security Act of 1974, as amended).
(h) On the Closing Date, the Company (i) will have good and marketable
title to the Mortgage Loans being transferred by it to the Trust Fund pursuant
thereto, free and clear of any lien, mortgage, pledge, charge, encumbrance,
adverse claim or other security interest placed thereon by the Company
(collectively, "Liens"), to the extent good and marketable title to the Mortgage
Loans is transferred to the Company, and (ii) will have the power and authority
to transfer such Mortgage Loans to the Trust Fund, and upon execution and
delivery of the Pooling and Servicing Agreement by the Trust Fund, the Trust
Fund will have acquired ownership of all of the Company's right, title and
interest in and to the related Mortgage Loans. Upon delivery to the Underwriters
of the Certificates pursuant hereto, each Underwriter will have good title to
the Certificates purchased by such Underwriter, in each case free of Liens.
3. Purchase, Sale and Delivery of Certificates. Delivery of and payment
for the Certificates shall be made at your office or at such other location as
you shall make known at such time as shall be specified in the applicable Terms
Agreement, each such time being herein referred to as a "Closing Date." Delivery
of the Certificates shall be made by the Company to the Underwriters against
payment of the purchase price specified in the applicable Terms Agreement in
Federal Funds by wire or check. Unless delivery is made through the facilities
of the Depository Trust Company, the Certificates to be so delivered will be in
definitive, fully registered form, in such denominations and registered in such
names as you request, and will be made available for inspection and packaging at
your office at least twenty-four hours prior to the applicable Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Certificates for sale to the public as set forth in the
Prospectus. Each Underwriter shall provide written information to the Company
expressly for use in the Prospectus, and in connection with the offering of the
Certificates, each Underwriter may prepare and provide to prospective investors
Computational Materials and Structural Terms Sheets (each as defined herein)
5. Covenants of the Company. The Company covenants and agrees with you and
the several Underwriters participating in the Offering of any Series of
Certificates that:
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(a) In connection with the execution of each Terms Agreement, the Company
will prepare a Prospectus Supplement to be filed under the Act setting forth the
principal amount of Certificates covered thereby and their terms not otherwise
specified in the Prospectus, the price at which the Certificates are to be
purchased by the Underwriters from the Company, either the initial public
offering price or the method by which the price at which the Certificates are to
be sold will be determined, the selling concession and reallowance, if any, any
delayed delivery arrangements, and such other information as you and the Company
deem appropriate in connection with the offering of the Certificates, but the
Company will not file any amendments to the Registration Statement or any
amendments or supplements to the Prospectus, unless it shall first have
delivered copies of such amendments or supplements to you, and you shall not
have reasonably objected thereto promptly after receipt thereof. The Company
will advise you or your counsel promptly (i) when notice is received from the
Commission that any post-effective amendment to the Registration Statement has
become or will become effective, and (ii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer and
sale of the Certificates, or of any proceedings or examinations that may lead to
such an order or communication, whether by or of the Commission or any authority
administering any state securities or Blue Sky law, as soon as the Company is
advised thereof, and will use its best efforts to prevent the issuance of any
such order or communication and to obtain as soon as possible its lifting, if
issued.
(b) The Company will cause any Computational Materials and any Structural
Term Sheets (each as defined in Section 8 below) with respect to each Series of
Certificates that are delivered by the Underwriters to the Company pursuant to
Section 8 to be filed with the Commission on a Current Report on Form 8-K (a
"Current Report") pursuant to Rule 13a-11 under the Exchange Act on the business
day immediately following the day on which such Computational Materials and
Structural Term Sheets are delivered to counsel for the Company by any of the
Underwriters prior to 10:30 a.m. (and will use its best efforts to cause such
Computational Materials and Structural Term Sheets to be so filed prior to 2:00
p.m., New York time, on the following business day), and will promptly advise
you when such Current Report has been so filed. The Company will cause one
Collateral Term Sheet (as defined in Section 9 below) with respect to an
Offering of a Series that is delivered by any of the Underwriters to the Company
in accordance with the provisions of Section 9 to be filed with the Commission
on a Current Report pursuant to Rule 13a-11 under the Exchange Act on the
business day immediately following the day on which such Collateral Term Sheet
is delivered to counsel for the company by any of the Underwriters prior to
10:30 a.m. In addition, if at any time prior to the availability of the related
Prospectus Supplement, any of the Underwriters has delivered to any prospective
investor a subsequent Collateral Term Sheet that reflects, in the reasonable
judgment of such Underwriter and the Company, a material change in the
characteristics of the Mortgage Loans for the related Series from those on which
a Collateral Term Sheet with respect to the related Series previously filed with
the Commission was based, the Company will cause any such Collateral Term Sheet
that is delivered by such Underwriter to the Company in accordance with the
provisions of Section 9 to be filed with the Commission on a Current Report on
the business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by such Underwriter prior to 2:00
p.m. In each case, the Company will promptly advise you when such Current Report
has been so filed. Notwithstanding the four preceding sentences, the Company
shall have no obligation to file any materials provided by any of the
Underwriters pursuant to Sections 8 and 9 which (i) in the
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reasonable determination of the Company are not required to be filed pursuant to
the Kidder Letters or the PSA Letter (each as defined in Section 8 below), or
(ii) contain erroneous information or contain any untrue statement of a material
fact or, when read in conjunction with the Prospectus and Prospectus Supplement,
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; it being understood, however, that the
Company shall have no obligation to review or pass upon the accuracy or adequacy
of, or to correct, any Computational Materials or ABS Term Sheets (as defined in
Section 9 below) provided by such Underwriter to the Company pursuant to Section
8 or Section 9 hereof. The Company shall give notice to you and such Underwriter
of its determination not to file any materials pursuant to clause (i) of the
preceding sentence and agrees to file such materials if such Underwriter or you
reasonably object to such determination within one business day after receipt of
such notice.
(c) If at any time when a prospectus relating to the Certificates is
required to be delivered under the Act any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company promptly will prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance; provided, however,
that the Company will not be required to file any such amendment or supplement
with respect to any Computational Materials, Structural Term Sheets or
Collateral Term Sheets incorporated by reference in the Prospectus other than
any amendments or supplements of such Computational Materials or Structural Term
Sheets that are furnished to the Company by the Underwriters pursuant to Section
8(e) hereof or any amendments or supplements of such Collateral Term Sheets that
are furnished to the Company by the Underwriters pursuant to Section 9(d) hereof
which are required to be filed in accordance therewith.
(d) With respect to each Series of Certificates, the Company will make
generally available to the holders of the Certificates and will deliver to you,
in each case as soon as practicable, an earnings statement covering the
twelve-month period beginning after the date of the Terms Agreement in respect
of such series of Certificates, which will satisfy the provisions of Section
11(a) of the Act with respect to the Certificates.
(e) The Company will furnish to you a copy of the Registration Statement
as originally filed (together with all documents and exhibits thereto or
incorporated by reference therein), each related preliminary prospectus, the
Prospectus, and all amendments and supplements to such documents, in each case
as soon as available and in such quantities as you reasonably request.
(f) The Company will endeavor to arrange for the qualification of the
Certificates for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as you reasonably designate and will
continue such qualifications in effect so long as reasonably required for the
initial distribution of Certificates; provided, however, that the Company shall
not be required to qualify to do business in any jurisdiction where it is not
qualified on the date of the related Terms Agreement or to take any action which
would subject it
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to general or unlimited service of process in any jurisdiction in which it is
not, on the date of the related Terms Agreement, subject to such service of
process.
(g) The Company will pay or cause to be paid all expenses incidental to
the performance of its obligations under this Agreement and any Terms Agreement
and any expenses (including fees and disbursements of O'Melveny & Myers LLP and
accountants) incurred by them in connection with the printing of memoranda
relating thereto, for any fees charged by the nationally recognized statistical
rating agencies for the rating of the Certificates, for the filing fee of the
National Association of Securities Dealers, Inc. relating to the Certificates,
if applicable, and for expenses incurred in distributing preliminary
prospectuses to the Underwriters.
(h) During the period when a prospectus is required by law to be delivered
in connection with the sale of the Certificates pursuant to this Agreement, the
Company will file or cause to be filed, on a timely and complete basis, all
documents that are required to be filed by the Company with the Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(i) The Company will file with the Commission within 15 days of the
issuance of the Certificates a report on Form 8-K setting forth specific
information concerning the Certificates and the Mortgage Pool to the extent that
such information is not set forth in the Prospectus.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters named in any Terms Agreement to purchase and pay for the
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Company as of the date hereof, the date of the
applicable Terms Agreement and the applicable Closing Date, to the accuracy of
the statements made in any officers' certificates (each an "Officer's
Certificate") pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a)(i) At the time the applicable Terms Agreement is executed, Deloitte &
Touche and/or any other firm of certified independent public accountants
acceptable to you shall have furnished to you a letter, addressed to you, and in
form and substance satisfactory to you in all respects, stating in effect that
using the assumptions and methodology used by the Company, all of which shall be
described in such letter or the Prospectus Supplement, they have recalculated
such numbers, percentages and weighted average lives set forth in the prospectus
as you may reasonably request, compared the results of their calculations to the
corresponding items in the Prospectus, and found each such number, percentage,
and weighted average life set forth in the Prospectus to be in agreement with
the results of such calculations. To the extent historical financial delinquency
or related information is included with respect to one or more master servicers,
such letter or letters shall also relate to such information.
(ii) At the Closing Date, Deloitte & Touche and/or any other firm of
certified independent public accountants acceptable to you shall have furnished
to you a letter, addressed to you, and in form and substance satisfactory to you
in all respects, relating to the extent such information is not covered in the
letter or letters provided pursuant to clause (a)(i), to a portion of the
information set forth on the Mortgage Loan Schedule attached to the Pooling and
Servicing
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Agreement and the characteristics of the mortgage loans, as presented in the
Prospectus Supplement or the Form 8-K relating thereto, or if a letter relating
to the same information is provided to the Trustee, indicating that you are
entitled to rely upon its letter to the Trustee.
(b) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not have been any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company or any of its affiliates the effect of
which, in any case, is, in your judgment, so material and adverse as to make it
impracticable or inadvisable to proceed with the Offering or the delivery of the
Certificates as contemplated by the Registration Statement and the Prospectus.
All actions required to be taken and all filings required to be made by the
Company under the Act and the Exchange Act prior to the sale of the Certificates
shall have been duly taken or made; and prior to the applicable Closing Date, no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted, or
to the knowledge of the Company or you, shall be contemplated by the Commission
or by any authority administering any state securities or Blue Sky law.
(c) Unless otherwise specified in any applicable Terms Agreement for a
Series, the Certificates shall be rated in one of the four highest grades by one
or more nationally recognized statistical rating agencies specified in said
Terms Agreement.
(d) You shall have received the opinion of counsel for the Company, dated
the applicable Closing Date, to the effect that:
(i) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its assets and conduct its business
as described in the Prospectus, and the Company is duly qualified as a
foreign corporation to transact business and is in good standing under the
laws of the State of New York. The Company has no subsidiaries.
(ii) Each of this Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company and assuming
due and valid authorization and execution by the other parties thereto,
constitutes the legal, valid and binding obligation of the Company
enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance and other
similar laws relating to or affecting creditors' rights generally and
court decisions with respect thereto and to the application of equitable
principles in any proceeding, whether at law or in equity. Such counsel's
opinion may be qualified, in the case of the indemnity provisions in this
Agreement, to applicable law or judicial policy.
(iii) The Pooling and Servicing Agreement has been duly and validly
authorized, executed and delivered by the Company and assuming due and
valid authorization and execution by the other parties thereto,
constitutes the valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, moratorium, fraudulent conveyance and other similar laws
relating to or affecting
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creditors' rights generally and court decisions with respect thereto and
to the application of equitable principles in any proceeding, whether at
law or in equity.
(iv) The Certificates are in a form authorized by the Pooling and
Servicing Agreement, have been duly and validly authorized by all
necessary corporate action and, when executed and authenticated as
specified in the Pooling and Servicing Agreement and delivered against
payment pursuant to this Agreement and the related Terms Agreement, will
be validly issued and outstanding; and the Certificates will be entitled
to the benefits of the Pooling and Servicing Agreement.
(v) The Registration Statement has become effective under the Act,
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and Regulations
thereunder; such counsel has no reason to believe that either the
Registration Statement as of its effective date contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or the Prospectus as of the date of any Terms
Agreement contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such
counsel need express no opinion as to the financial statements or other
financial data or notes thereto or any statistical or tabular data
contained or incorporated by reference in the Registration Statement or
the Prospectus).
(vi) The statements in the Prospectus and Prospectus Supplement
under the heading "Certain Federal Income Tax Consequences," and "ERISA"
to the extent that they constitute matters of law or legal conclusions,
have been prepared or reviewed by such counsel and provide a fair summary
of such law or conclusions; the statements in the Prospectus to the extent
modified by the statements in the Prospectus Supplement under the headings
"Summary of Terms," "Description of the Certificates" and "The Pooling and
Servicing Agreement" and such other headings as you may request, insofar
as such statements constitute a summary of the proposed transaction and of
the provisions of the Certificates or the Pooling and Servicing Agreement,
constitute a fair and accurate summary of such transaction and provisions.
(vii) Neither the Company nor the Trust Fund is, or as a result of
the offer and sale of the Certificates as contemplated in the Prospectus
and in this Agreement will become, an "investment company" as defined in
the Investment Company Act, or an "affiliated person" of any such
"investment company" that is registered or is required to be registered
under the Investment Company Act (or an "affiliated person" of any such
"affiliated person"), as such terms are defined in the Investment Company
Act.
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(viii) The Certificates offered pursuant to the Registration
Statement and indicated as such in the Prospectus Supplement will be
mortgage related securities, as defined in Section 3(a)(41) of the
Exchange Act, so long as such Certificates are rated in one of the two
highest grades by at least one nationally recognized statistical rating
agency.
(ix) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
Each opinion also shall relate to such other matters as may be specified
in the related Terms Agreement or as to which you reasonably may request. In
rendering any such opinion, counsel for the Company may rely on certificates of
responsible officers of the Company, the Trustee, and public officials or, as to
matters of law other than New York or Federal law, on opinions of other counsel
(copies of which opinions shall be delivered to you), provided that, in cases of
opinions of other counsel, counsel for the Company shall include in its opinion
a statement of its belief that both it and you are justified in relying on such
opinions.
(e) You shall have received from counsel for the Company a letter, dated
as of the Closing Date, stating that you may rely on the opinions delivered by
such firm under the Pooling and Servicing Agreement and to the rating agency or
agencies rating the Certificates as if such opinions were addressed directly to
you (copies of which opinions shall be delivered to you).
(f) You shall have received from counsel for the Underwriters, if such
counsel is different from counsel to the Company, such opinion or opinions,
dated as of the Closing Date, with respect to the validity of the Certificates,
the Registration Statement, the Prospectus and other related matters as the
Underwriters may require, and the Company shall have furnished to such counsel
such documents as they may have requested from it for the purpose of enabling
them to pass upon such matters.
(g) You shall have received Officer's Certificates signed by such of the
principal executive, financial and accounting officers of the Company as you may
request, dated as of the Closing Date, in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct; that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Date; that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated; that, subsequent to the respective dates as of
which information is given in the Prospectus, and except as set forth or
contemplated in the Prospectus, there has not been any material adverse change
in the general affairs, business, key personnel, capitalization, financial
condition or results of operations of the Company; that except as otherwise
stated in the Prospectus, there are no material actions, suits or proceedings
pending before any court or governmental agency, authority or body or, to their
knowledge, threatened, affecting the Company or the transactions contemplated by
this Agreement; and that attached thereto are true and correct copies of a
letter or letters from the one or more nationally recognized statistical rating
agencies specified in the applicable Terms Agreement confirming that, unless
otherwise specified in said Terms Agreement, the Certificates
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have been rated in one of the four highest grades by each of such agencies and
that such rating has not been lowered since the date of such letter.
The Company will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects with respect to a particular Offering when
and as provided in this Agreement and the related Terms Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement and
the related Terms Agreement shall not be in all material respects reasonably
satisfactory in form and substance to you, this Agreement (with respect to the
related Offering) and the related Terms Agreement and all obligations of the
Underwriters hereunder (with respect to the related Offering) and thereunder may
be canceled at, or at any time prior to, the related Closing Date by the
Underwriter. Notice of such cancellation shall be given to the Company in
writing, or by telephone or telegraph confirmed in writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act against any and all losses,
claims, damages, liabilities and expenses whatsoever (including but not limited
to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act, or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement relating to the applicable
Series of Certificates (the "Applicable Registration Statement") as it became
effective or in any amendment or supplement thereof, or the related Prospectus,
or in any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission (in the case of any Computational Materials or ABS
Term Sheets in respect of which the Company agrees to indemnify the
Underwriters, as set forth below, when such are read in conjunction with the
related Prospectus and Prospectus Supplement) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that (i) the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein (A) in reliance upon and in conformity
with written information furnished to the Company as herein stated by or on
behalf of the Underwriters specifically for use in connection with the
preparation thereof or (B) in any Current Report or any amendment or supplement
thereof, except to the extent that any untrue statement or alleged untrue
statement therein or omission therefrom results (or is alleged to have resulted)
directly from an error (a "Mortgage Pool Error") in the information concerning
the characteristics of the Mortgage Loans furnished by the Company to the
Underwriters in writing or by electronic transmission that was used in the
preparation of either (x) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) included in such Current Report (or amendment
or supplement thereof) or (y) any written or electronic materials furnished
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to prospective investors on which the Computational Materials (or amendments or
supplements) were based, (ii) such indemnity with respect to any Corrected
Statement (as defined below) in such Prospectus (or Prospectus Supplement
thereto) shall not inure to the benefit of the Underwriters or any person
controlling any Underwriter) from whom the person asserting any loss, claim,
damage or liability purchased the Certificates of the related Series that are
the subject thereof if such person did not receive a copy of a Prospectus
Supplement to such Prospectus at or prior to the confirmation of the sale of
such Certificates and the untrue statement or omission of a material fact
contained in such Prospectus (or Prospectus Supplement thereto) was corrected (a
"Corrected Statement") in such other supplement and such supplement was
furnished by the Company to the Underwriters prior to the delivery of such
confirmation, and (iii) such indemnity with respect to any Mortgage Pool Error
shall not inure to the benefit of the Underwriters (or any person controlling
any Underwriter) from whom the person asserting any loss, claim, damage or
liability received any Computational Materials (or any written or electronic
materials on which the Computational Materials are based) or ABS Term Sheets
that were prepared on the basis of such Mortgage Pool Error, if, prior to the
time of confirmation of the sale of the applicable series of Certificates to
such person, the Company notified the Underwriters in writing of the Mortgage
Pool Error or provided in written or electronic form information superseding or
correcting such Mortgage Pool Error (in any such case, a "Corrected Mortgage
Pool Error"), and the Underwriters failed to notify such person thereof or to
deliver to such person corrected Computational Materials (or underlying written
or electronic materials) or ABS Term Sheets; provided, further, that (i) the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon any material
misstatements or omissions contained in the Prospectus Supplement regarding the
Mortgage Loans purchased by the Company from Wells Fargo pursuant to the
applicable Mortgage Loan Purchase Agreement or information provided by Wells
Fargo for inclusion in the Prospectus Supplement, and (ii) the Company's
obligation to so indemnify and hold harmless in respect of all other matters
shall be limited to 35.38% of such losses, claims, damages, liabilities or
expenses (except that such limitations shall not apply to losses, claims,
damages, liabilities or expenses arising out of or based upon any material
misstatement or omission contained in the Prospectus Supplement regarding the
Mortgage Loans purchased by the Company from Bear Stearns pursuant to the
applicable Mortgage Loan Purchase Agreement or information included by Bear
Stearns for inclusion in the Prospectus Supplement).
(b) The Underwriters severally, and not jointly, agree to indemnify and
hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the Applicable Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any losses, claims, damages, liabilities and expenses whatsoever (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses for actions in respect thereof
arise out of or are based upon (A) any untrue statement or alleged untrue
statement of a material fact contained in the Applicable Registration Statement,
as originally filed or any
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amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are 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 not misleading,
in each case to the extent, but only to the extent, that any such loss, claim,
damage, liability or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company, by or on behalf of such Underwriter expressly for use therein; or
(B) any Computational Materials or ABS Term Sheets (or amendments or supplements
thereof) furnished to the Company by such Underwriter pursuant to Section 8 and
incorporated by reference in such Registration Statement or the related
Prospectus, Prospectus Supplement or any amendment or supplement thereof (except
that no such indemnity shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof resulting from any Mortgage Pool
Error, other than a Corrected Mortgage Pool Error). This indemnity will be in
addition to any liability which the Underwriters may otherwise have. The Company
acknowledges that, unless otherwise set forth in the applicable Terms Agreement,
the statements set forth in the last paragraph of the cover page and under the
caption "Method of Distribution" and the stabilization legend required by Item
502(d)(1) under Regulation S-K of the Act included in the Prospectus Supplement
relating to a Series of Certificates constitute the only information furnished
in writing by or on behalf of any Underwriter expressly for use in the
Applicable Registration Statement or the Prospectus or in any amendment thereof
or supplement thereto, as the case may be (other than any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) furnished to
the Company by such Underwriter), and each Underwriter confirms, on its behalf,
that such statements are correct.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under such subsection, notify each party against whom indemnification is to be
sought in writing of the Commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this Section 7 except to the extent that it has been prejudiced in any
material respect by such failure or from any liability which it may have
otherwise). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an
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indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent; provided, however, that such consent was
not unreasonably withheld.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in Section 7 hereof is for any reason held to be
unavailable, on grounds of public policy or otherwise, from the Company or the
Underwriters or is insufficient to hold harmless a party indemnified thereunder,
the Company and the Underwriters shall contribute to the aggregate losses,
claims, damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting in the case of
losses, claims, damages, liabilities and expenses suffered by the Company any
contribution received by the Company from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, officers of the Company who signed the Applicable Registration
Statement and directors of the Company) to which the Company and the
Underwriters may be subject in such proportions as is appropriate to reflect the
relative benefits received by the Company on one hand and the Underwriters on
the other from the Offering of the Certificates as to which such loss,
liability, claim, damage or expense is claimed to arise or, if such allocation
is not permitted by applicable law or indemnification is not available as a
result of the indemnifying party not having received notice as provided in
Section 7(c) hereof, in such proportion as is appropriate to reflect not only
the relative benefits referred to above but also the relative fault of the
Company on one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on one hand and the
Underwriters on the other shall be deemed to be in the same proportion as (x)
the total proceeds from the Offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the Terms Agreement in respect of the
Offering of the Certificates as to which such loss, liability, claim, damage or
expense is claimed to arise. The relative fault of the Company on one hand and
the Underwriters on the other shall be determined by reference to, among other
things, (A) whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
supplied by the Company on one hand or the Underwriters on the other and (B) the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 7(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this Section 7(d), (x) in no case
shall the Underwriters be liable or responsible for any amount in excess of the
underwriting discount set forth in the Terms Agreement relating to the
Certificates as to which such losses, claims, damages, liabilities or expenses
are claimed to arise, and (y) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7(d), each person, if any, who
controls any Underwriter within the
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meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed the
Applicable Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to this
Section 7(d). Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section 7(d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 7(d) or otherwise. No
party shall be liable for contribution with respect to any action or claim
settled without its consent; provided, however, that such consent was not
unreasonably withheld.
The indemnity and contribution agreements contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor, any
Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
The Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the respective amount of Certificates
they have purchased hereunder, and not joint.
Each Underwriter will indemnify and hold harmless any Underwriter and each
person, if any, who controls such Underwriter within the meaning of either the
1933 Act or the 1934 Act (the "Non-Indemnifying Underwriter") from and against
any and all losses, claims, damages or liabilities, joint or several, to which
the Non-Indemnifying Underwriter becomes subject under the 1933 Act, the 1934
Act or other federal or state statutory law or regulation, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement of
material fact contained in any Computational Materials or ABS Term Sheets
developed by, mailed or otherwise transmitted by such Indemnifying Underwriter,
or any member of its selling group, in connection with the Certificates or in
any revision or amendment thereof or supplement thereto or (ii) the failure of
such Indemnifying Underwriter, or any member of its selling group, to comply
with any provision of Section 9, and agrees to reimburse such Non-Indemnifying
Underwriter, as incurred for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action. This agreement will be in addition to any liability that
any Underwriter may otherwise have.
8. Computational Materials and Structural Term Sheets. (a) Not later than
10:30 a.m., New York time, on the business day before the date on which the
Current Report relating to the Certificates of a Series is required to be filed
by the Company with the Commission pursuant to Section 5(b) hereof, you and any
other applicable Underwriter shall deliver to the Company, and unless otherwise
agreed to by the Company, in a form reasonably convertible to an EDGAR filing
format, a copy of all materials provided by the Underwriters to prospective
investors in such Certificates which constitute (i) "Computational Materials,"
within
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the meaning of the no-action letter dated May 20, 1994, issued by the Division
of Corporation Finance of the Commission to Kidder, Peabody Acceptance
Corporation I, Kidder, Peabody & Co. Incorporated, and Kidder Structured Asset
Corporation and the no-action Letter dated May 27, 1994, issued by the Division
of Corporation Finance of the Commission to the public Securities Association
(together, the "Kidder Letters") and the filing of such material is a condition
of the relief granted in such letter (such materials being the "Computational
Materials"), and (ii) "Structural Term Sheets" within the meaning of the
no-action letter dated February 17, 1995, issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA
Letter") and the filing of such material is a condition of the relief granted in
such letter (such materials being the "Structural Term Sheets"). Each delivery
of Computational Materials and Structural Term Sheets to the Company by you and
any other applicable Underwriter pursuant to this paragraph (a) shall be
effected by delivering a copy of such materials to counsel for the Company on
behalf of the Company at the address specified by the Company and one copy of
such materials to the Company.
(b) You and each other Underwriter, by virtue of its having executed and
delivered the related Terms Agreement, which shall incorporate this Section 8(b)
by reference, represents and warrants to and agrees with the Company, as of the
date of the related Terms Agreement and as of the Closing Date, that:
(i) the Computational Materials furnished to the Company pursuant to
Section 8(a) constitute (either in original, aggregated or consolidated
form) all of the materials furnished to prospective investors by such
Underwriter prior to the time of delivery thereof to the Company that are
required to be filed with the Commission with respect to the Offering of
the Certificates in accordance with the Kidder Letters, and such
Computational Materials comply with the requirements of the Kidder
Letters;
(ii) the Structural Term Sheets furnished to the Company pursuant to
Section 8(a) constitute all of the materials furnished to prospective
investors by such Underwriter prior to the time of delivery thereof to the
Company that are required to be filed with the Commission as "Structural
Term Sheets" with respect to the related Offering of the Certificates in
accordance with the PSA Letter, and such Structural Term Sheets comply
with the requirements of the PSA Letter;
(iii) on the date any such Computational Materials or Structural
Term Sheets with respect to the Offering of the Certificates (or any
written or electronic materials furnished to prospective investors on
which the Computational Materials are based) were last furnished to each
prospective investor and on the date of delivery thereof to the Company
pursuant to Section 8(a) and on the related Closing Date, such
Computational Materials (or such other materials) or Structural Term
Sheets did not and will not include any untrue statement of a material
fact or, when read in conjunction with the related Prospectus and
Prospectus Supplement, omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading: and
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(iv) all Computational Materials (or underlying materials
distributed to prospective investors on which the Computational Materials
were based) or Structural Term Sheets furnished to prospective investors
contained and will contain a legend, prominently displayed on the first
page thereof, to the effect that the Company has not prepared, reviewed or
participated in the preparation of such materials and is not responsible
for the accuracy thereof.
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Computational Materials or
Structural Term Sheets (or any written or electronic materials on which the
Computational Materials are based) included or will include any untrue statement
resulting directly from any Mortgage Pool Error (except any Corrected Mortgage
Pool Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Mortgage Pool error or
materials superseding or correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter delivering Computational Materials shall cause a firm
of public accountants to furnish to the Company a letter, dated as of the date
on which such Underwriter delivers any Computational Materials (which term shall
be deemed to include, for purposes of this paragraph (c), calculated statistical
information delivered to prospective investors in the form of a Structural Term
Sheet) to the Company pursuant to Section 8 (a), in form and substance
satisfactory to the Company, stating in effect that they have verified the
mathematical accuracy of any calculations performed by such Underwriter and set
forth in such Computational Materials.
(d) The Underwriters acknowledge and agree that the Company has not
authorized and will not authorize the distribution of any Computational
Materials (or any written or electronic materials on which the Computational
Materials are based) or Structural Term Sheets to any particular prospective
inventor, and agrees that any Computational Materials or Structural Term Sheets
with respect to any Series of Certificates furnished to prospective investors
shall include a disclaimer in the form described in paragraph (b)(iv) above. The
Underwriters agree that they will not represent to prospective investors that
any Computational Materials or Structural Term Sheets were prepared or
disseminated on behalf of the Company.
(e) If, at any time when a prospectus relating to the Certificates of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related Prospectus or Prospectus Supplement as a result of an
untrue statement of a material fact contained in any Computational Materials or
Structural Term Sheets provided by an Underwriter pursuant to this Section 8 or
the omission to state therein a material fact required, when considered in
conjunction with the related Prospectus and Prospectus Supplement, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the related Prospectus and Prospectus Supplement, not misleading, or if it
shall be necessary to amend or supplement any Current Report relating to any
Computational Materials or Structural Term Sheets to comply with the Act or the
rules thereunder, such Underwriter promptly will prepare and furnish to the
Company for filing with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance, such Underwriter will deliver an Officers Certificate to the Company
representing and warranting to the Company that, as of the date of delivery of
such amendment or supplement to
18
<PAGE>
the Company, such amendment or supplement will not include any untrue statement
of a material fact or, when read in conjunction with the related Prospectus and
Prospectus Supplement, omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that such Underwriter will make no representation or warranty as to
whether any such amendment or supplement will include any untrue statement
resulting directly from any Mortgage Pool Error (except any Corrected Mortgage
Pool Error, with respect to any such amendment or supplement prepared after the
receipt by such Underwriter from the Company of notice of such Corrected
Mortgage Pool Error or materials superseding or correcting such Corrected
Mortgage Pool Error). The Company shall have no obligation to file such
amendment or supplement if (i) the Company determines that such amendment or
supplement contains any untrue statement of a material fact or, when read in
conjunction with the related Prospectus and Prospectus Supplement, omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however, that the
Company shall have no obligation to review or pass upon the accuracy or adequacy
of, or to correct, any such amendment or supplement provided by such Underwriter
to the Company pursuant to this paragraph (e) or (ii) the Company reasonably
determines that such filing is not required under the Act and such Underwriter
does not object as provided below. The Company shall give notice to such
Underwriter of its determination not to file an amendment or supplement pursuant
to clause (ii) of the preceding sentence and agrees to file such amendment or
supplement if such Underwriter reasonably objects to such determination within
one business day after receipt of such notice.
9. Collateral Term Sheets. (a) Prior to the delivery of any "Collateral
Term Sheet" within the meaning of the PSA Letter, the filing of which material
is a condition of the relief granted in such letter (such material being the
"Collateral Term Sheets"), to a prospective investor in the Certificates, the
applicable Underwriter shall notify the Company and its counsel by telephone of
its intention to deliver such materials and the approximate date on which the
first such delivery of such materials is expected to occur. Not later than 10:30
a.m., New York time, on the business day immediately following the date on which
any Collateral Term Sheet was first delivered to a prospective investor in the
Certificates of an offered series, such applicable Underwriter shall deliver to
the Company, and unless otherwise agreed to by the Company, in a form reasonably
convertible to an EDGAR format, a complete copy of all materials provided by
such Underwriter to prospective investors in such Certificates which constitute
"Collateral Term Sheets." Each delivery of a Collateral Term Sheet to the
Company pursuant to this paragraph (a) shall be effected by delivering a copy of
such materials to counsel for the Company on behalf of the Company at the
address specified by the Company and one copy of such materials to the Company.
(Collateral Term Sheets and Structural Term Sheets are, together, referred to
herein as "ABS Term Sheets.") At the time of each such delivery, such
Underwriter shall indicate in writing that the materials being delivered
constitute Collateral Term Sheets, and, if there has been any prior such
delivery with respect to the related Series, shall indicate whether such
materials differ in any material respect from any Collateral Term Sheets
previously delivered to the Company with respect to such Series pursuant to this
Section 9(a) as a result of the occurrence of a material change in the
characteristics of the related Mortgage Loans.
(b) You and each other Underwriter, by virtue of its having executed and
delivered the related Terms Agreement, which shall incorporate this Section 9(b)
by reference,
19
<PAGE>
represents and warrants to and agrees with the Company as of the date of the
related Terms Agreement and as of the Closing Date, that:
(i) The Collateral Term Sheets furnished to the Company pursuant to
Section 9(a) constitute all of the materials furnished to prospective
investors by such Underwriter prior to time of delivery thereof to the
Company that are required to be filed with the Commission as "Collateral
Term Sheets" with respect to the related Offering of the Certificates in
accordance with the PSA Letter, and such Collateral Term Sheets comply
with the requirements of the PSA Letter;
(ii) On the date any such Collateral Term Sheets with respect to the
Offering of the Certificates were last furnished to each prospective
investor and on the date of delivery thereof to the Company pursuant to
Section 9(a) and on the related Closing Date, such Collateral Term Sheets
did not and will not include any untrue statement of a material fact or,
when read in conjunction with the Prospectus and Prospectus Supplement,
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and
(iii) such Underwriter has not represented to any prospective
investor that any Collateral Term Sheets with respect to any Series were
prepared or disseminated on behalf of the Company, and, except as
otherwise disclosed by such Underwriter to the Company in writing prior to
the date hereof, all Collateral Term Sheets previously furnished to
prospective investors included a disclaimer to the effect set forth in
Section 8(b)(iv).
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Collateral Term Sheet included or
will include any untrue statement or material omission resulting directly from
any Mortgage Pool Error (except any Corrected Mortgage Pool Error, with respect
to materials prepared after the receipt by such Underwriter from the Company of
notice of such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter delivering Collateral Term Sheets acknowledges and
agrees that any Collateral Term Sheets with respect to any Series of
Certificates furnished to prospective inventors from and after the date hereof
shall include a disclaimer to the effect set forth in Section 8(d) hereof, and
to the effect that the information contained in such materials supersedes the
information contained in any prior Collateral Term Sheet with respect to such
series of Certificates being offered and will be superseded by the description
of the related Mortgage Loans in the related Prospectus Supplement. The
Underwriters agree that they will not represent to any prospective investors
that any Collateral Term Sheets were prepared or disseminated on behalf of the
Company.
(d) If, at any time when a prospectus relating to the Certificates of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related prospectus as a result of an untrue statement of a
material fact contained in any Collateral Term Sheets provided by an Underwriter
pursuant to this Section 9 or the omission to state therein a
20
<PAGE>
material fact required, when considered in conjunction with the related
Prospectus and Prospectus Supplement, to be stated therein or necessary to make
the statements therein, when read in conjunction with the related Prospectus and
Prospectus Supplement, not misleading, or if it shall be necessary to amend or
supplement any Current Report relating to any Collateral Term Sheets to comply
with the Act or the rules thereunder, such Underwriter promptly will prepare and
furnish to the Company for filing with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which will effect
such compliance. Such Underwriter will deliver an Officer's Certificate to the
Company representing and warranting to the Company that, as of the date of
delivery of such amendment or supplement to the Company, such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the related Prospectus and Prospectus Supplement, omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, such Underwriter will make
no representation or warranty as to whether any such amendment or supplement
will include any untrue statement resulting directly from any Mortgage Pool
Error (except, any Corrected Mortgage Pool Error, with respect to any such
amendment or supplement prepared after the receipt by such Underwriter from the
Company of notice of such Corrected Mortgage Pool Error or materials superseding
or correcting such Corrected Mortgage Pool Error). The Company shall have no
obligation to file such amendment or supplement if the Company determines that
(i) such amendment or supplement contains any untrue statement of a material
fact or, when read in conjunction with the related Prospectus and Prospectus
Supplement, omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being understood,
however, that the Company shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any such amendment or supplement
provided by such Underwriter to the Company pursuant to this paragraph (d) or
(ii) such filing is not required under the Act. The Company shall give notice to
such Underwriter of its determination not to file an amendment or supplement
pursuant to clause (ii) of the preceding sentence and agrees to file such
amendment or supplement if such Underwriter reasonably objects to such
determination within one business day after receipt of such notice.
10. Default of Underwriters. If any Underwriter or Underwriters
participating in an Offering of Certificates default in their obligations to
purchase Certificates hereunder and under the Terms Agreement and the aggregate
purchase price of Certificates which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the aggregate purchase
price of the Certificates then being purchased, you may make arrangements
satisfactory to the Company for the purchase of such Certificates by other
persons, including any of the Underwriters, but if no such arrangements are made
by the Closing Date the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective total commitments as set forth in
the applicable Terms Agreement (for all classes of Certificates), to purchase
the Certificates which such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so default and the
aggregate purchase price of Certificates with respect to which such default or
defaults occur is more than 10% of the aggregate purchase price of Certificates
then being purchased, and arrangements satisfactory to you and the Company for
the purchase of such Certificates by other persons are not made within 36 hours
after such default, the Terms Agreement as to which such offering relates will
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except as provided in Section 11. As used in this Agreement, the term
"Underwriter" includes any person
21
<PAGE>
substituted for an Underwriter under this Section. Nothing herein will relieve
defaulting Underwriter from liability for its default.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties, and other statements of
the Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the result thereof, made by or on behalf
of any Underwriter or the Company or any of its officers or directors or any
controlling person, and will survive delivery of and payment for the
Certificates and any termination of this Agreement or any Terms Agreement,
including any termination pursuant to Section 10.
12. Termination.
(a) Any Underwriter may terminate its obligations under this Agreement, by
notice to the Depositor, at any time at or prior to the Closing Date if the sale
of the Certificates provided for herein is not consummated because of any
failure or refusal on the part of the Depositor to comply with the terms or to
fulfill any of the conditions of this Agreement or if for any reason the
Depositor shall be unable to perform its obligations under this Agreement, other
than by reason of a failure by such Underwriter to purchase Certificates as
required hereunder.
(b) You shall have the right to terminate any Terms Agreement at any time
prior to the applicable Closing Date if any domestic or international event or
act or occurrence has materially disrupted, or in your opinion will in the
immediate future materially disrupt, securities markets; or if trading on the
New York or American Stock Exchanges shall have been suspended, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required on the New York or American Stock
Exchanges by the New York or American Stock Exchanges or by order of the
Commission or any other governmental authority having jurisdiction; or if the
United States shall have become involved in a war or major hostilities; or if a
banking moratorium has been declared by a state or Federal authority, or if a
banking moratorium in foreign exchange trading by major international banks or
persons has been declared; or if any new restriction materially and adversely
affecting the distribution of the series of Certificates as to which such Terms
Agreement relates shall have become effective; or if there shall have been such
change in the market for securities in general or in political, financial or
economic conditions as in your judgment would be so materially adverse as to
make it inadvisable to proceed with the Offering, sale and delivery of the
series of Certificates as to which such Terms Agreement relates on the terms
contemplated in such Terms Agreement. Any notice or termination pursuant to this
Section 12 shall be by telephone, telex, or telegraph, confirmed in writing by
letter.
(c) If any Underwriter terminates its obligations under this Agreement in
accordance with Section 12(a), the Depositor shall reimburse such Underwriter
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by such Underwriter in
connection with this Agreement or the proposed purchase and sale of the
Certificates.
22
<PAGE>
13. Notices. All communications hereunder will be in writing, and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
you at 245 Park Avenue, New York, New York 10167, Attention: General Counsel or
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at 245 Park Avenue, New York, New York 10167, Attention: James G. Reichek;
provided, however, that any notice to an Underwriter pursuant to Section 7 will
be mailed, delivered or telegraphed to such Underwriter at the address furnished
by it.
14. Successors. This Agreement and the Terms Agreement will inure to the
benefit of and be binding upon the parties hereto and thereto, and their
respective successors and the officers and directors and controlling persons
referred to in Section 7, and no other person will have any right or obligation
hereunder or thereunder.
15. Representation of Underwriters. You will act for the several
Underwriters in connection with each Offering of Certificates governed by this
Agreement, and any action under this Agreement and any Terms Agreement taken by
you will be binding upon all the Underwriters identified in such Terms
Agreement.
16. Construction. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
17. Counterparts. This Agreement may be signed in any number of duplicate
originals, each of which shall be deemed an original, which, taken together,
shall constitute one and the same instrument.
[Signatures to Follow on Next Page]
23
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ James G. Reichek
-------------------------------
Name: James G. Reichek
Title: Executive Vice President
The foregoing Underwriting Agreement
hereby is confirmed and accepted
as of the date first above written.
BEAR, STEARNS & CO. INC.
By: /s/ James G. Reichek
-------------------------------
Name: James G. Reichek
Title: Senior Managing Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Russell Rahbany
-------------------------------
Name: Russell Rahbany
Title: Vice President
NORWEST INVESTMENT SERVICES, INC.
By: /s/ R. Michael Petersen
-------------------------------
Name: R. Michael Petersen
Title: Senior Vice President
<PAGE>
EXHIBIT A
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
Commercial Mortgage Pass-Through Certificates
FORM OF TERMS AGREEMENT
Dated: ___________, 199__
To: BEAR STEARNS [AND ____________]
Re: Underwriting Agreement dated _________, 199_
Series Designation: Series 19 __ - __
Class Designation Schedule:
Terms of the Certificates:
Original
Principal Interest Price to
Class Amount Rate Public(12)
- ----- --------- -------- ----------
Distribution Dates: The __th day of each month or, if such __th day is not a
business day, the next succeeding business day commencing _______________.
Certificate Rating:
Mortgage Assets: The initial amounts to be included in any Reserve Account and
other accounts are as set forth, and the Mortgage Loans to be included in the
Trust Fund are as described, in Annex A hereto.
- --------
(1) Do not include if the Certificates will be offered from time to time
by the Underwriter in negotiated transactions at varying prices to be determined
at the time of sale.
(2) Plus accrued interest, if any, at the applicable rate from __________.
<PAGE>
Purchase Price: The aggregate purchase price payable by the Underwriter for each
Class of Certificates covered by this Agreement will be as set forth below, plus
accrued interest, if any, from the Cut-off Date to but excluding the Closing
Date:
Class A-1 %
Class A-2 %
Class B %
Class C %
Class D %
Class E %
Class F %
Credit Enhancement:
Not applicable.
Closing Date: July 1, 1999, 10:00 a.m., N.Y. Time
2
<PAGE>
The undersigned, agrees, subject to the terms and provisions of the
above-referenced Underwriting Agreement, which is incorporated herein in its
entirety and made a part hereof, to purchase the respective principal amounts of
the Classes of the above referenced Series of Certificates set forth on Schedule
I attached hereto.
BEAR, STEARNS & CO. INC.
By:
----------------------------
Name:
Title
MORGAN STANLEY & CO. INCORPORATED
By:
----------------------------
Name:
Title
NORWEST INVESTMENT SERVICES, INC.
By:
----------------------------
Name:
Title
Accepted:
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
By:
----------------------------
Name:
Title
3
<PAGE>
Schedule I (for multiple underwriters)
<TABLE>
<CAPTION>
Underwriters
Name Class A-1 Class A-2 Class X Class B Class C Class D Class E Class F
- ---- --------- --------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Bear, Stearns & Co. Inc. 70% 70% 100% 100% 100% 100% 100% 100%
Morgan Stanley & Co. 25% 25% 0% 0% 0% 0% 0% 0%
Incorporated
Norwest Investment 5% 5% 0% 0% 0% 0% 0% 0%
Services, Inc.
------ ----- ----- ----- ----- ----- ----- -----
Total: 100% 100% 100% 100% 100% 100% 100% 100%
</TABLE>
24
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
Commercial Mortgage Pass-Through Certificates
TERMS AGREEMENT
Dated: as of June 15, 1999
To: BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
Re: Underwriting Agreement dated June 15, 1999
Underwriters: Bear, Stearns & Co. Inc., Morgan Stanley & Co. Incorporated and
Norwest Investment Services, Inc.
Series Designation: Series 1999-WF2
Class Designation Schedule of the Certificates: Class A-1, Class A-2, Class B,
Class C, Class D, Class E, Class F and Class X Certificates
Terms of the Certificates to be Purchased by the Underwriters:
Original Certificate Balance
Class or Notional Amount Initial Pass-Through Rate
- ----- ------------------ -------------------------
A-1 $ 338,780,000 6.800%
A-2 $ 525,789,000 7.080%
B $ 43,229,000 7.296%
C $ 43,229,000 7.376%
D $ 10,807,000 7.376%
E $ 27,018,000 7.376%
F $ 10,807,000 7.376%
X $1,080,711,380(1) 0.43120%(3)
- ----------
(1) The Class X Certificates are interest-only certificates. Class X
Certificateholders will not receive any principal. However, they will be
entitled to receive interest that accrues on a notional amount equal to the
aggregate of the Scheduled Principal Balances of the Mortgage Loans.
(2) The Pass-Through Rates of the Class A-1 and Class A-2 Certificates shall
be the indicated fixed rate per annum or, if a lower rate, the weighted
average of the Net Mortgage Rates of
1
<PAGE>
the Mortgage Loans (such Net Mortgage Rates determined without taking into
account any reductions thereto resulting from modifications of the
Mortgage Loans or otherwise following the Cut-Off Date). The Pass-Through
Rates of the Class B, Class C, Class D, Class E and Class F Certificates
set forth in the table above are initial Pass-Through Rates for such
classes. For interest periods relating to Distribution Dates after August
16, 1999, the Pass-Through Rate of the Class B Certificates will be a per
annum rate equal to the NWAC Rate for such Distribution Date minus 0.08%,
and the Pass-Through Rate of the Class C, Class D, Class E and Class F
Certificates will be a per annum rate equal to the NWAC Rate for such
Distribution Date.
(3) Initial Pass-Through Rate. The Class X Pass-Through Rate with respect to
any Distribution Date will be equal to the excess, if any, of (i) the
weighted average of the non-default interest rates specified in the notes
relating to each Mortgage Loan in the trust fund, net of the related
Administrative Cost Rate, over (ii) the weighted average of the
Pass-Through Rates of the other classes of Certificates.
2
<PAGE>
Defined Terms: Terms not otherwise defined herein shall have the meanings given
to such terms in the Pooling and Servicing Agreement dated as of July 1, 1999,
among Bear Stearns Commercial Mortgage Securities Inc., as depositor, Wells
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 Norwest Bank Minnesota,
National Association, as paying agent.
Form of Certificates Being Purchased by the Underwriters: Book Entry.
Distribution Dates: The 15th day of each month or, if such 15th day is not a
business day, the next succeeding business day, commencing on August 15, 1999.
Certificate Rating for the Certificates Being Purchased by the Underwriters:
Rating
------
Class Moody's* DCR**
A-1 Aaa AAA
A-2 Aaa AAA
B Aa2 AA
C A2 A
D A3 A-
E Baa2 BBB
F Baa3 BBB-
X Aaa AAA
* Moody's Investors Service, Inc.
** Duff & Phelps Credit Rating Co.
Mortgage Assets: The Mortgage Loans to be included in the Trust Fund are as
described in Annex A hereto.
Purchase Price: The aggregate purchase price payable by the Underwriters for
each class of Certificates covered by this Agreement will be as set forth below:
<TABLE>
<CAPTION>
Purchase Price as Percentage of
Original Certificate Balance or Original Certificate Balance or
Class Notional Amount Notional Amount
----- --------------- ---------------
<S> <C> <C>
A-1 $ 338,780,000 99.96425%
A-2 $ 525,789,000 99.98702%
B $ 43,229,000 99.95215%
C $ 43,229,000 99.47858%
D $ 10,807,000 98.66388%
E $ 27,018,000 96.96542%
F $ 10,807,000 90.51501%
X $1,080,711,380 2.12038%
</TABLE>
3
<PAGE>
Credit Enhancement: None other than the subordination described in the related
Prospectus Supplement.
Closing Date: July 1, 1999, 10:00 a.m., New York time at the offices of
O'Melveny & Myers LLP, New York, New York.
[Signatures Follow on Next Page]
4
<PAGE>
The undersigned, as the Underwriters, agree, subject to the terms and provisions
of the above-referenced Underwriting Agreement, which is incorporated herein in
its entirety and made a part hereof, to purchase the respective principal
amounts of the Classes of the above-referenced Series of Certificates as set
forth on Schedule I attached hereto.
BEAR, STEARNS & CO. INC.
By: /s/ James G. Reichek
----------------------------------
Name: James G. Reichek
Title: Senior Managing Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Russell Rahbany
----------------------------------
Name: Russell Rahbany
Title: Vice President
NORWEST INVESTMENT SERVICES, INC.
By: /s/ Mark K. Stanley
----------------------------------
Name: Mark K. Stanley
Title: Senior Vice President
Accepted:
BEAR STEARNS COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ James G. Reichek
----------------------------------
Name: James G. Reichek
Title: Executive Vice President
S-1
<PAGE>
Annex A
Mortgage Loan Schedule
SEE SCHEDULE I AND SCHEDULE II OF THE POOLING AND SERVICING AGREEMENT
<PAGE>
Schedule I
Underwriters
<TABLE>
<CAPTION>
UNDERWRITER CLASS A-1 CLASS A-2 CLASS X CLASS B
- ----------- --------- --------- ------- -------
<S> <C> <C> <C> <C>
Bear, Stearns & Co. Inc. $237,146,000 $368,052,300 $1,080,711,380 $43,229,000
Morgan Stanley & Co. Incorporated $ 84,695,000 $131,447,250 $ 0 $ 0
Norwest Investment Securities, Inc. $ 16,939,000 $ 26,289,450 $ 0 $ 0
------------- ------------- -------------- -----------
Total $338,780,000 $525,789,000 $1,080,711,380 $43,229,000
<CAPTION>
UNDERWRITER CLASS C CLASS D CLASS E CLASS F
- ----------- ------- ------- ------- -------
<S> <C> <C> <C> <C>
Bear, Stearns & Co. Inc. $43,229,000 $10,807,000 $27,018,000 $10,807,000
Morgan Stanley & Co. Incorporated $ 0 $ 0 $ 0 $ 0
Norwest Investment Securities, Inc. $ 0 $ 0 $ 0 $ 0
------------ ----------- ----------- -----------
Total $43,229,000 $10,807,000 $27,018,000 $10,807,000
</TABLE>
<PAGE>
================================================================================
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.,
as Depositor,
and
WELLS 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.,
Fiscal Agent,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Paying Agent
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 1999
----------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-WF2
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE I DEFINITIONS..................................................................4
Section 1.1 Definitions...........................................................4
Section 1.2 Calculations Respecting Mortgage Loans...............................49
Section 1.3 Calculations Respecting Accrued Interest.............................49
Section 1.4 Interpretation.......................................................49
Section 1.5 ARD Loans............................................................50
ARTICLE II DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES.............................50
Section 2.1 Conveyance of Mortgage Loans.........................................50
Section 2.2 Acceptance by Trustee................................................52
Section 2.3 Sellers' Repurchase of Mortgage Loans for Document Defects
and Breaches of Representations and Warranties.......................54
Section 2.4 Representations and Warranties.......................................57
Section 2.5 Conveyance of Interests..............................................58
ARTICLE III THE CERTIFICATES............................................................58
Section 3.1 The Certificates.....................................................58
Section 3.2 Registration.........................................................59
Section 3.3 Transfer and Exchange of Certificates................................59
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates....................65
Section 3.5 Persons Deemed Owners................................................65
Section 3.6 Access to List of Certificateholders' Names and Addresses............66
Section 3.7 Book-Entry Certificates..............................................66
Section 3.8 Notices to Clearing Agency...........................................69
Section 3.9 Definitive Certificates..............................................69
ARTICLE IV ADVANCES....................................................................70
Section 4.1 P&I Advances by Servicer.............................................70
Section 4.2 Servicing Advances...................................................71
Section 4.3 Advances by the Trustee and the Fiscal Agent.........................71
Section 4.4 Evidence of Nonrecoverability........................................72
Section 4.5 Interest on Advances; Calculation of Outstanding Advances with
respect to a Mortgage Loan...........................................73
Section 4.6 Reimbursement of Advances and Advance Interest.......................73
<PAGE>
Section 4.7 Fiscal Agent Termination Event.......................................74
Section 4.8 Procedure Upon Termination Event.....................................75
Section 4.9 Merger or Consolidation of Fiscal Agent..............................75
Section 4.10 Limitation on Liability of the Fiscal Agent and Others...............75
Section 4.11 Indemnification of Fiscal Agent......................................76
ARTICLE V ADMINISTRATION OF THE TRUST.................................................77
Section 5.1 Collections..........................................................77
Section 5.2 Application of Funds in the Certificate Account and Interest
Reserve Account......................................................79
Section 5.3 Distribution Account and Reserve Account.............................82
Section 5.4 Paying Agent Reports.................................................83
Section 5.5 Paying Agent Tax Reports.............................................85
ARTICLE VI DISTRIBUTIONS...............................................................85
Section 6.1 Distributions Generally..............................................85
Section 6.2 REMIC I..............................................................86
Section 6.3 REMIC II.............................................................86
Section 6.4 REMIC III............................................................91
Section 6.5 Allocation of Realized Losses and Shortfalls Due to
Nonrecoverability....................................................96
Section 6.6 Net Aggregate Prepayment Interest Shortfalls and Net Aggregate
Balloon Interest Shortfalls..........................................99
Section 6.7 Adjustment of Servicing Fees.........................................99
Section 6.8 Appraisal Reductions.................................................99
Section 6.9 Compliance with Withholding Requirements............................100
Section 6.10 Prepayment Premiums.................................................100
Section 6.11 Yield Maintenance Charges...........................................101
ARTICLE VII CONCERNING THE TRUSTEE, THE FISCAL AGENT AND THE
PAYING AGENT...............................................................101
Section 7.1 Duties of Trustee, the Fiscal Agent and the Paying Agent............101
Section 7.2 Certain Matters Affecting the Trustee, the Fiscal Agent and
the Paying Agent....................................................103
Section 7.3 The Trustee, the Fiscal Agent and the Paying Agent Not
Liable for Certificates or Interests or Mortgage Loans..............105
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Section 7.4 The Trustee, the Fiscal Agent and Paying Agent May Own
Certificates........................................................106
Section 7.5 Eligibility Requirements for the Trustee, the Fiscal Agent
and the Paying Agent................................................107
Section 7.6 Resignation and Removal of the Trustee, the Fiscal
Agent or the Paying Agent...........................................107
Section 7.7 Successor Trustee, Fiscal Agent or Paying Agent.....................109
Section 7.8 Merger or Consolidation of Trustee, Fiscal Agent or Paying Agent....110
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian...........................................................110
Section 7.10 Authenticating Agents...............................................112
Section 7.11 Indemnification of Trustee, the Fiscal Agent and the Paying
Agent...............................................................113
Section 7.12 Fees and Expenses of Trustee, the Fiscal Agent and Paying Agent.....115
Section 7.13 Collection of Moneys................................................115
Section 7.14 Trustee To Act; Appointment of Successor............................116
Section 7.15 Notification to Holders.............................................118
Section 7.16 Representations and Warranties of the Trustee,
the Fiscal Agent and the Paying Agent...............................118
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee, the Fiscal Agent and the Paying Agent....121
ARTICLE VIII ADMINISTRATION AND SERVICING OF MORTGAGE LOANS..............................122
Section 8.1 Servicing Standard; Servicing Duties................................122
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Servicer..........................................122
Section 8.3 Servicer's General Power and Duties.................................123
Section 8.4 Sub-Servicing.......................................................127
Section 8.5 Servicer May Own Certificates.......................................128
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and
Other...............................................................128
Section 8.7 Enforcement of Due-On-Sale Clauses and Due-on-Encumbrance
Clauses; Assumption Agreements......................................130
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files.............132
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Section 8.9 Documents, Records and Funds in Possession of Servicer to be
Held for the Trustee for the Benefit of the Certificateholders......132
Section 8.10 Servicing Compensation..............................................133
Section 8.11 Servicer Reports; Account Statements................................134
Section 8.12 Annual Statement as to Compliance...................................134
Section 8.13 Annual Independent Public Accountants' Servicing Report.............135
Section 8.14 Annual Reports Regarding the Mortgaged Properties...................135
Section 8.15 Other Available Information and Certain Rights of the Servicer......135
Section 8.16 Rule 144A Information...............................................137
Section 8.17 Inspections.........................................................138
Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents.........138
Section 8.19 Specially Serviced Mortgage Loans...................................140
Section 8.20 Representations, Warranties and Covenants of the Servicer...........140
Section 8.21 Merger or Consolidation.............................................141
Section 8.22 Resignation of Servicer.............................................142
Section 8.23 Assignment or Delegation of Duties by Servicer......................142
Section 8.24 Limitation on Liability of the Servicer and Others..................143
Section 8.25 Indemnification; Third-Party Claims.................................145
Section 8.26 Exchange Act Reporting..............................................147
Section 8.27 Compliance with REMIC Provisions....................................147
Section 8.28 Termination.........................................................147
Section 8.29 Procedure Upon Termination..........................................149
ARTICLE IX ADMINISTRATION AND SERVICING OF SPECIALLY
SERVICED MORTGAGE LOANS BY SPECIAL SERVICER.........................151
Section 9.1 Duties of Special Servicer..........................................151
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of
Special Servicer....................................................152
Section 9.3 Sub-Servicers.......................................................152
Section 9.4 Special Servicer General Powers and Duties..........................152
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption Agreements;
Modifications of Specially Serviced Mortgage Loans..................154
Section 9.6 Release of Mortgage Files...........................................157
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Section 9.7 Documents, Records and Funds in Possession of Special Servicer
To Be Held for the Trustee..........................................158
Section 9.8 Representations, Warranties and Covenants of the Special
Servicer............................................................159
Section 9.9 Standard Hazard, Flood and Comprehensive General Liability
Insurance Policies..................................................160
Section 9.10 Presentment of Claims and Collection of Proceeds....................162
Section 9.11 Compensation to the Special Servicer................................162
Section 9.12 Realization Upon Defaulted Mortgage Loans...........................163
Section 9.13 Foreclosure.........................................................165
Section 9.14 Operation of REO Property...........................................165
Section 9.15 Sale of REO Property................................................168
Section 9.16 Realization on Collateral Security..................................169
Section 9.17 Sale of Defaulted Mortgage Loans....................................169
Section 9.18 Annual Officer's Certificate as to Compliance.......................169
Section 9.19 Annual Independent Accountants' Servicing Report....................170
Section 9.20 Merger or Consolidation.............................................170
Section 9.21 Resignation of Special Servicer.....................................170
Section 9.22 Assignment or Delegation of Duties by Special Servicer..............171
Section 9.23 Limitation on Liability of the Special Servicer and Others..........171
Section 9.24 Indemnification; Third-Party Claims.................................173
Section 9.25 [RESERVED]..........................................................174
Section 9.26 Special Servicer May Own Certificates...............................174
Section 9.27 Tax Reporting.......................................................175
Section 9.28 Application of Funds Received.......................................175
Section 9.29 Compliance with REMIC Provisions....................................175
Section 9.30 Termination.........................................................175
Section 9.31 Procedure Upon Termination..........................................177
Section 9.32 Certain Special Servicer Reports....................................177
Section 9.33 Special Servicer to Cooperate with the Servicer and Paying Agent....179
Section 9.34 Certain REMIC Limitations
on Modification of Specially Serviced Mortgage Loans................180
Section 9.35 [RESERVED]..........................................................180
Section 9.36 Sale of Defaulted Mortgage Loans and REO Properties.................180
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Section 9.37 Operating Adviser; Elections........................................182
Section 9.38 Limitation on Liability of Operating Adviser........................183
Section 9.39 Duties of Operating Adviser.........................................183
ARTICLE X PURCHASE AND TERMINATION OF THE TRUST......................................184
Section 10.1 Termination of Trust Upon Repurchase
or Liquidation of All Mortgage Loans................................184
Section 10.2 Procedure Upon Termination of Trust.................................185
Section 10.3 Additional Trust Termination Requirements...........................186
ARTICLE XI RIGHTS OF CERTIFICATEHOLDERS...............................................188
Section 11.1 Limitation on Rights of Holders.....................................188
Section 11.2 Access to List of Holders...........................................189
Section 11.3 Acts of Holders of Certificates.....................................189
ARTICLE XII REMIC ADMINISTRATION.......................................................190
Section 12.1 REMIC Administration................................................190
Section 12.2 Prohibited Transactions and Activities..............................195
Section 12.3 Modifications of Mortgage Loans.....................................195
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC
Status..............................................................196
ARTICLE XIII MISCELLANEOUS PROVISIONS....................................................196
Section 13.1 Binding Nature of Agreement.........................................196
Section 13.2 Entire Agreement....................................................196
Section 13.3 Amendment...........................................................196
Section 13.4 GOVERNING LAW.......................................................198
Section 13.5 Notices.............................................................198
Section 13.6 Severability of Provisions..........................................199
Section 13.7 Indulgences; No Waivers.............................................199
Section 13.8 Headings Not to Affect Interpretation...............................199
Section 13.9 Benefits of Agreement...............................................199
Section 13.10 Special Notices to the Rating Agencies..............................199
Section 13.11 Counterparts........................................................201
Section 13.12 Intention of Parties................................................201
Section 13.13 Recordation of Agreement............................................202
</TABLE>
7
<PAGE>
THIS POOLING AND SERVICING AGREEMENT is dated as of July 1, 1999
(this "Agreement") among BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC., a
Delaware corporation, as depositor (the "Depositor"), WELLS FARGO BANK, NATIONAL
ASSOCIATION, as servicer (the "Servicer"), GMAC COMMERCIAL MORTGAGE CORPORATION,
as special servicer (the "Special Servicer"), LASALLE BANK NATIONAL ASSOCIATION,
as trustee of the Trust (the "Trustee"), ABN AMRO BANK N.V., only in its
capacity as a fiscal agent pursuant to Article IV hereof (the "Fiscal Agent"),
and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, only in its capacity as paying
agent, certificate registrar and authenticating agent herein (the "Paying
Agent").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage
Loans from Bear, Stearns Funding, Inc., as seller ("BSF"), and Wells Fargo Bank,
National Association, as seller (in such capacity, "Wells Fargo"), and will be
the owner of the Mortgage Loans and the other property being conveyed by it to
the Trustee for inclusion in the Trust which is hereby created. On the Closing
Date, the Depositor will acquire (i) the REMIC I Regular Interests and the Class
R-I Certificate as consideration for its transfer to the Trust of the Mortgage
Loans and the other property constituting the Trust; (ii) the REMIC II Regular
Interests and the Class R-II Certificates as consideration for its transfer of
the REMIC I Interests to the Trust; and (iii) the REMIC III Certificates as
consideration for its transfer of the REMIC II Regular Interests to the Trust.
The Depositor has duly authorized the execution and delivery of this Agreement
to provide for the foregoing and the issuance of (A) the REMIC I Regular
Interests and the Class R-I Certificates representing in the aggregate the
entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests and
the Class R-II Certificates representing in the aggregate the entire beneficial
ownership of REMIC II and (C) the REMIC III Certificates representing in the
aggregate the entire beneficial ownership of REMIC III. All covenants and
agreements made by the Depositor and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust are for the benefit
of the Holders of the REMIC I Regular Interests, the REMIC II Regular Interests,
the Residual Certificates, and the REMIC Regular Certificates. The parties
hereto are entering into this Agreement, and the Trustee is accepting the trusts
created hereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
The Class A-1, Class A-2, 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 August 18, 1998, as supplemented by the
preliminary prospectus supplement dated June __, 1999 (together with the
Prospectus, the "Preliminary Prospectus Supplement") and as further supplemented
by the final prospectus supplement dated June __, 1999 (together with the
Prospectus, the "Final Prospectus Supplement") and the Class G, Class H, Class
I, Class J, Class K, Class L and Class M Certificates have been offered for sale
pursuant to the Private Placement Memorandum dated June __, 1999 (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
S-1
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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 Excess Interest, 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 Excess Interest will consist of the aggregate amount of
Excess Interest, if any, on all Mortgage Loans. The Class R-I Certificate will
be designated as the sole class of residual interests in REMIC I and will have
no Certificate Balance and no Pass-Through Rate, but will be entitled to receive
the proceeds of any assets remaining in REMIC I after all classes of REMIC I
Regular Interests have been paid in full.
REMIC II
The REMIC II Regular Interests, other than the REMIC II Excess
Interest, 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 Excess Interest will consist of all amounts paid on
or deemed paid to the REMIC I Excess Interest.
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<PAGE>
REMIC III
<TABLE>
<CAPTION>
Initial Aggregate
Initial Pass- Certificate
Through Principal or Final Scheduled Final Rated
Designation Rate(a) Notional Amount Distribution Date(b) Distribution Date(c)
----------- ------- --------------- -------------------- --------------------
<S> <C> <C> <C> <C>
Class A-1 6.800% $338,780,000.00 September 15, 2008 July 15, 2031
Class A-2 7.080% $525,789,000.00 June 15, 2009 July 15, 2031
Class X 0.4312% $1,080,711,380.00 May 15, 2019 July 15, 2031
Class B 7.296% $43,229,000.00 July 15, 2009 July 15, 2031
Class C 7.376% $43,229,000.00 February 15, 2010 July 15, 2031
Class D 7.376% $10,807,000.00 October 15, 2010 July 15, 2031
Class E 7.376% $27,018,000.00 November 15, 2012 July 15, 2031
Class F 7.376% $10,807,000.00 August 15, 2013 July 15, 2031
Class G 6.00% $21,614,000.00 November 15, 2013 July 15, 2031
Class H 6.00% $16,211,000.00 June 15, 2014 July 15, 2031
Class I 6.00% $8,105,000.00 March 15, 2015 July 15, 2031
Class J 6.00% $9,456,000.00 May 15, 2016 July 15, 2031
Class K 6.00% $10,807,000.00 September 15, 2017 July 15, 2031
Class L 6.00% $4,053,000.00 February 15, 1018 July 15, 2031
Class M(d) 6.00% $10,806,380.00 May 15, 2019 July 15, 2031
Class R-III(e) N/A N/A N/A N/A
</TABLE>
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate."
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is
expected to be paid in full, assuming that timely payments (and no
prepayments) will be made on the Mortgage Loans in accordance with their
terms.
(c) The Final Rated Distribution Date for each Class of Certificates is July
15, 2031. That date is approximately 24 months following the end of the
amortization term of the Mortgage Loan that, as of the Closing Date, has
the longest remaining amortization term.
(d) The Class M Certificates represent ownership of two REMIC III Regular
Interests: (1) the REMIC III Class M Regular Interest (entitled to the
principal and interest set forth above) and (2) the REMIC III Excess
Interest (entitled to the amounts distributed or deemed distributed on
the REMIC II Excess Interest).
(e) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all
Classes of Certificates have been reduced to zero.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $1,080,711,380.00.
As provided herein, with respect to the Trust, the Paying Agent
will 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.
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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 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 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 Certificates and the REMIC III Class M Regular
Interest, together with the REMIC III Excess 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 Class R-I Certificates, the Class R-II Certificates,
the Class R-III Certificates, the REMIC I Excess Interest, REMIC II Excess
Interest and REMIC III Excess Interest, interest accrued during the Interest
Accrual Period relating to such Distribution Date on the aggregate Certificate
Balance of such Class or Interest as of the close of business on the immediately
preceding Distribution Date at the respective rates per annum set forth in the
definition of the applicable Pass-Through Rate for each such Class. Accrued
Certificate Interest on the Class X Certificates for each Distribution Date will
equal the Class X Interest Amount.
"ACQUISITION DATE" means the date upon which, under the Code (and
in particular the REMIC Provisions and Section 856(e) of the Code), the Trust or
a REMIC Pool is deemed to have acquired a Mortgaged Property.
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees and Liquidation Fees (to the extent not collected from
the related Mortgagor), (ii) Advance Interest that cannot be reimbursed from
collections on the related Mortgage Loan or REO Property; (iii) amounts paid to
indemnify the Servicer, Special Servicer, Trustee, Paying
4
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Agent or Fiscal Agent (or any other Person) pursuant to the terms of this
Agreement; (iv) to the extent not otherwise paid, any federal, state, or local
taxes imposed on the Trust or its assets and paid from amounts on deposit in the
Certificate Account or Distribution Account; (v) the amount of any Advance that
is not recovered from the proceeds of a Mortgage Loan upon a Final Recovery
Determination and (vi) to the extent not included in the calculation of a
Realized Loss and not covered by indemnification by one of the parties hereto or
otherwise, any other unanticipated cost, liability, or expense (or portion
thereof) of the Trust (including costs of collecting such amounts or other
Additional Trust Expenses) which the Trust has not recovered, and in the
judgment (consistent with the Servicing Standard) of the Servicer (or Special
Servicer, in the case of a Specially Serviced Mortgage Loan) will not, recover
from the related Mortgagor or Mortgaged Property or otherwise, including a
Modification Loss described in clause (ii) of the definition thereof.
Notwithstanding anything to the contrary, "Additional Trust Expenses" shall not
include allocable overhead of the Servicer or the Special Servicer, such as
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses, and similar internal costs and expenses.
"ADMINISTRATIVE COST RATE" means the sum of the Servicing Fee
Rate and the Trustee Fee Rate.
"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.
"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
5
<PAGE>
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.
"ANNUAL REPORT" means a report substantially in the form of
Exhibit N.
"ANTICIPATED REPAYMENT DATE" means, with respect to any ARD Loan,
the anticipated maturity date set forth in the related Mortgage Note.
"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan, not
later than the earliest of (i) the date 120 days after the occurrence of any
delinquency in payment with respect to such Mortgage Loan if such delinquency
remains uncured, (ii) the date 30 days after receipt of notice that the related
borrower has filed a bankruptcy petition or a receiver is appointed in respect
of the related Mortgaged Property, provided such petition or appointment is
still in effect, (iii) the effective date of any modification to a Money Term of
a Mortgage Loan, other than an extension of the due date that a Balloon Payment
is due for a period of less than six months, and (iv) the date 30 days following
the date the related Mortgaged Property becomes an REO Property.
"APPRAISAL REDUCTION" means, with respect to any Required
Appraisal Loan with respect to which an Appraisal or internal valuation is
performed pursuant to Section 6.8, an amount equal to the excess of (A) the sum,
as of the first Determination Date that is at least 15 days after the date on
which the Appraisal or internal valuation is obtained or performed, of (i) the
Scheduled Principal Balance of such Mortgage Loan (or, in the case of an REO
Property, the related REO Mortgage Loan), (ii) to the extent not previously
advanced, all unpaid interest on such Mortgage Loan at a per annum rate equal to
the Mortgage Rate, (iii) all unreimbursed Advances and interest on Advances at
the Advance Rate with respect to such Mortgage Loan, and (iv) to the extent
funds on deposit in any applicable Escrow Accounts are not sufficient therefor,
all currently due and unpaid real estate taxes and assessments, insurance
premiums, if applicable, ground rents and other amounts which were to be
deposited in any Escrow Account (i.e., maintenance reserves and environmental
reserves) in respect of such Mortgaged Property or REO Property, as the case may
be, over (B) 90% of the Appraised Value (net of any prior mortgage liens) of
such Mortgaged Property or REO Property as determined by such Appraisal or
internal valuation, as the case may be. Each Appraisal or internal valuation for
a Required Appraisal Loan shall be updated annually. The Appraisal Reduction for
each Required Appraisal
6
<PAGE>
Loan will be recalculated based on subsequent Appraisals, internal valuations or
updates. Any Appraisal Reduction for any Mortgage Loan shall be reduced to
reflect any Realized Principal Losses on the Required Appraisal Loan. Each
Appraisal Reduction will be reduced to zero as of the date the related Mortgage
Loan is brought current under the then current terms of the Mortgage Loan for at
least three consecutive months, and no Appraisal Reduction will exist as to any
Mortgage Loan after it has been paid in full, liquidated, repurchased or
otherwise disposed of, or in certain cases will be reduced by the amount of any
Realized Loss of principal on the related Mortgage Loan incurred prior to the
liquidation or disposition thereof. Notwithstanding the foregoing, if an
internal valuation of the Mortgaged Property is performed, the Appraisal
Reduction will equal the greater of (A) the amount calculated above and (B) 25%
of the Principal Balance of the Mortgage Loan.
"APPRAISED VALUE" means, with respect to any Mortgaged Property,
the appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent appraiser selected by the
Servicer or the Special Servicer, as applicable or, in the case of an internal
valuation performed pursuant to Section 6.8, the value of the Mortgaged Property
determined by such internal valuation.
"ARD LOAN" means, any Mortgage Loan identified on the Mortgage
Loan Schedule as an ARD loan.
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage Loan,
any assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage,
notice of transfer or equivalent instrument, in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect the transfer of the Mortgage to the Trustee, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering the Mortgage Loans secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any
Balloon Mortgage Loan for its Maturity Date (provided that such Mortgage Loan
has not been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect thereof, on or before the end of the
Collection Period in which such Maturity Date occurs) and for any subsequent Due
Date therefor as of which such Mortgage Loan remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment that would have been due in respect of such Mortgage Loan on
such Due Date, if it had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule in effect immediately prior to, and without regard to the
occurrence of, its most recent Maturity Date (as such may have been extended in
connection with a bankruptcy or
7
<PAGE>
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Servicer or the
Special Servicer pursuant to the terms hereof), and (ii) with respect to any REO
Mortgage Loan for any Due Date therefor as of which the related REO Property
remains part of the Trust, the scheduled monthly payment of principal and
interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment (or, in the case of a Balloon Mortgage Loan described in the
preceding clause of this definition, the Assumed Scheduled Payment) that was due
in respect of the related Mortgage Loan on the last Due Date prior to its
becoming an REO Mortgage Loan.
"AUTHENTICATING AGENT" means any authenticating agent serving in
such capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an
Officer's Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" shall have the meaning
set forth in Section 4.6(a) hereof.
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, an amount equal to the aggregate of (a) all amounts on
deposit in the Distribution Account as of the commencement of business on such
Distribution Date that represent payments and other collections on or in respect
of the Mortgage Loans and any REO Properties that were received by the Servicer
or the Special Servicer through the end of the related Collection Period
exclusive of (i) any such amounts that were deposited in the Distribution
Account in error, (ii) amounts that are payable or reimbursable to any Person
other than the Certificateholders (including amounts payable to the Servicer in
respect of unpaid Servicing Fees, the Special Servicer in respect of unpaid
Special Servicer Compensation, the Trustee in respect of unpaid Trustee Fees or
the Paying Agent in respect of unpaid Paying Agent Fees), (iii) amounts that
constitute Prepayment Premiums or Yield Maintenance Charges, and (iv) if such
Distribution Date occurs during January or February of any year, the Interest
Reserve Amounts with respect to Interest Reserve Loans deposited in the Interest
Reserve Account, and (b) if and to the extent not already among the amounts
described in clause (a), (i) the aggregate amount of any P&I Advances made by
the Servicer, the Trustee or the Fiscal Agent for such Distribution Date
pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate amount of any
Compensating Interest payments made by the Servicer or the Special Servicer for
such Distribution Date pursuant to the terms hereof, and (iii) if such
Distribution Date occurs in March of any year, commencing March 2000, the
aggregate of the Interest Reserve Amounts then held on deposit in the Interest
Reserve 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.
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"BALLOON INTEREST SHORTFALL": With respect to any Balloon Payment
made 60 or more days after the original related Maturity Date, for any
Distribution Date and the related Collection Period, a shortfall in the
collection of a full month's interest on any Balloon Payment made prior to the
related Due Date occurring during such Collection Period. The amount of any
Balloon Interest Shortfall shall equal the excess of (A) the aggregate amount of
interest which would have accrued on such Balloon Payment for the 30 days ending
on the related Due Date if such Balloon Payment had not been made prior to such
Due Date (net of the Servicing Fee or Special Servicing Fee and the Trustee Fee)
over (B) the aggregate interest that did so accrue on such Balloon Payment
through the date such payment was made.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan which will not be
fully amortized by its original or modified Maturity Date, based on the fixed
monthly Scheduled Payment.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage
Loan, the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under
the United States Bankruptcy Code or any other similar state law or other
proceeding with respect to the Mortgagor of, or Mortgaged Property under, a
Mortgage Loan, including, without limitation, any Deficient Valuation Amount or
losses, if any, resulting from any Debt Service Reduction Amount for the month
in which the related Remittance Date occurs.
"BASE INTEREST FRACTION": With respect to any Principal
Prepayment on any Mortgage Loan that provides for payment of a Yield Maintenance
Charge in connection therewith and with respect to any of the Class A, Class B,
Class C, Class D, Class E and Class F Certificates, a fraction (A) whose
numerator is the greater of (x) zero and (y) the difference between (i) the
Pass-Through Rate on such Class of Offered Certificates and (ii) the Yield Rate
used in calculating the Yield Maintenance Charge with respect to such Principal
Prepayment and (B) whose denominator is the difference between (i) the Mortgage
Rate on the related Mortgage Loan and (ii) the Yield Rate used in calculating
the Yield Maintenance Charge with respect to such principal prepayment;
provided, however, that under no circumstances shall the Base Interest Fraction
be greater than one. If such Yield Rate is greater than the Mortgage Rate on the
related Mortgage Loan, then the Base Interest Fraction shall equal zero.
"BENEFIT PLAN OPINION" means an Opinion of Counsel satisfactory
to the Trustee and the Servicer to the effect that any proposed transfer will
not (i) cause the assets of any REMIC to be regarded as plan assets for purposes
of the Plan Asset Regulations or (ii) give rise to any fiduciary duty on the
part of the Depositor, the Servicer, the Special Servicer, the Trustee, the
Paying Agent or the Fiscal Agent.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a
beneficial interest in a Class of Certificates, ownership and transfer of which
shall be made through book entries as described in Section 3.7; provided, that
after the occurrence of a condition whereupon book-entry registration and
transfer are no longer authorized and Definitive Certificates are to be issued
to the Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
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"BSF" has the meaning assigned in the Preliminary Statement
hereto.
"BSF LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to Mortgage Loan Purchase Agreement I and shown on Schedule I
hereto.
"BUSINESS DAY" means any day other than (i) a Saturday or a
Sunday, (ii) a legal holiday in New York, New York, Boston, Massachusetts,
Chicago, Illinois, San Francisco, California or the principal cities in which
the Special Servicer, the Trustee, the Paying Agent, or the Servicer conducts
servicing or trust operations, or (iii) a day on which banking institutions or
savings associations in New York, New York, Minneapolis, Minnesota, Columbia,
Maryland, Chicago, Illinois or San Francisco, California are authorized or
obligated by law or executive order to be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan other
than a Mortgage Loan with respect to which the related Mortgaged Property became
REO Property, the amount of all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, Purchase Proceeds and other payments or recoveries with
respect to a Final Recovery Determination. The Servicer shall maintain records
in accordance with the Servicing Standard (and, in the case of Specially
Serviced Mortgage Loans, based on the written reports with respect to such Cash
Liquidation delivered by the Special Servicer to the Servicer), of each Cash
Liquidation.
"CEDEL" means Cedelbank, societe anonyme.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601,
et seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts
established and maintained by the Servicer (or any Sub-Servicer on behalf of the
Servicer) pursuant to Section 5.1(a), which each account shall be an Eligible
Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate or
Interest (other than the Class X Certificates, the Residual Certificates, the
REMIC I Excess Interest and REMIC II Excess Interest) 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 Excess Interest and REMIC II Excess Interest 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).
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"CERTIFICATE REGISTER" has the meaning provided in Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Paying Agent.
"CERTIFICATEHOLDERS" has the meaning provided in the definition
of "Holder."
"CERTIFICATES" means, collectively, the REMIC III Certificates,
the Class R-I Certificates and the Class R-II Certificates.
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests or REMIC III Certificates, any Class of such Certificates or
Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS X
CERTIFICATES," "CLASS B CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D
CERTIFICATES," "CLASS E Certificates," "CLASS F CERTIFICATES," "CLASS G
CERTIFICATES," "CLASS H CERTIFICATES," "CLASS I CERTIFICATES," "CLASS J
CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L CERTIFICATES," "CLASS M
CERTIFICATES," "CLASS R-I CERTIFICATES," "CLASS R-II CERTIFICATES" or "CLASS
R-III CERTIFICATES," mean the Certificates designated as "Class A-1," "Class
A-2," "Class X," "Class B," "Class C," "Class D," "Class E," "Class F," "Class
G," "Class H," "Class I," "Class J," "Class K," "Class L," "Class M," "Class
R-I," "Class R-II" and "Class R-III," respectively, on the face thereof, in
substantially the form attached hereto as Exhibits A-1 through A-18 hereof.
"CLASS A CERTIFICATES" means the Class A-1 Certificates and Class
A-2 Certificates, collectively.
"CLASS X CERTIFICATES" means the Class X Certificates.
"CLASS X INTEREST AMOUNT" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest equal to the product of
(i) one-twelfth of a per annum rate equal to the weighted average of the Class X
Strip Rates for the Class A-1 Certificates, Class A-2 Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class I
Certificates, Class J Certificates, Class K Certificates, Class L Certificates,
and Class M Certificates, weighted on the basis of the respective Certificate
Balances of such Classes of Certificates, and (ii) the Class X Notional Amount
for such Distribution Date.
"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 the Weighted Average of the
REMIC I Net Mortgage Rates (but for these purposes only, taking into account
reductions in such rates resulting from the modification of Mortgage Loans or
otherwise following the Closing Date) for such Distribution Date over the
Pass-Through Rate for such Class of Certificates.
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"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.
"CLOSING DATE" means July 1, 1999.
"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.
"COLLECTION PERIOD" means, with respect to any Distribution Date,
the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or in the case of the first
Distribution Date, the Cut-Off Date) and ending on the Determination Date in the
month in which the Distribution Date occurs.
"COMPENSATING INTEREST" means with respect to any Distribution
Date, an amount equal to the excess of (A) Prepayment Interest Shortfalls
resulting from Principal Prepayments during the related Collection Period over
(B) Prepayment Interest Excesses resulting from Principal Prepayments during the
same Collection Period, plus an amount equal to the excess of (A) Balloon
Interest Shortfalls resulting from the voluntary payment prior to the Due Date
during such Collection Period of Balloon Payments 60 or more days after the
original Maturity Dates thereof over (B) Balloon Interest Excesses resulting
from payments during such Collection Period of Balloon Payments that were made
60 or more days after their respective Maturity Dates; it being understood that
the Servicer or the Special Servicer, respectively, will be responsible for
Compensating Interest payments relating to Mortgage Loans that are being
Serviced or Specially Serviced, as the case may be, and that, in any event (i)
Compensating Interest to be paid by the Servicer hereunder will be limited to
the portion of the aggregate Servicing Fee for the related Collection Period
calculated in respect of all the Mortgage Loans (including REO Mortgage Loans)
less the portion payable to Sub-Servicers as Sub-Servicing Fees and (ii)
Compensating Interest to be paid by the Special Servicer hereunder will be
limited to the portion of the aggregate Special Servicing Fee for the related
Collection Period calculated in respect of all the Specially Serviced Mortgage
Loans, including REO Mortgage Loans.
"CONDEMNATION PROCEEDS" means any awards resulting from the full
or partial condemnation or any eminent domain proceeding or any conveyance in
lieu or in anticipation thereof with respect to a Mortgaged Property by or to
any governmental, quasi-governmental authority or private entity with
condemnation powers other than amounts to be applied to the restoration,
preservation or repair of such Mortgaged Property or released to the related
Mortgagor in accordance with the terms of the Mortgage Loan.
"CONTROLLING CLASS" means the most subordinate Class of
Certificates outstanding at any time of determination; provided, that, no Class
may be the Controlling Class at any time that the then Certificate Balance of
such Class is less than 25% of the initial Certificate Balance of such Class. As
of the Closing Date, the Controlling Class will be the Class M Certificates. For
purposes of determining the identity of the Controlling Class, the Certificate
Balance of each Class shall not be deemed to be reduced by the amount of any
Appraisal Reductions allocated to such Class.
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"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 135 South LaSalle Street, Suite 1625,
Chicago, Illinois 60674, Attention: Asset-Backed Securities Trust Services
Group, Bear Stearns Series 1999-WF2 and the office of the Certificate Registrar
is presently located at Norwest Center, Sixth and Marquette, Minneapolis,
Minnesota 55479-0113, Attention: Corporate Trust Services (CMBS)--Bear Stearns
Series 1999-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 State Street Bank and Trust Company or any
successor 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 July 1, 1999.
"CUT-OFF DATE AGGREGATE PRINCIPAL BALANCE" means, with respect to
the Mortgage Loans on the Closing Date, the Aggregate Principal Balance for all
such Mortgage Loans as of the Cut-Off Date, reduced by all payments of principal
due on or before the Cut-Off Date whether or not paid, and increased by
Scheduled Payments of principal due after the Cut-Off Date but received by the
Servicer on or before the Cut-Off Date.
"DCR" means Duff & Phelps Credit Rating Co. or its successor in
interest.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any Mortgage
Loan, as of any date of determination and for any period, the amount calculated
for such date of determination in accordance with the procedures set forth in
Exhibit T.
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"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due Date
and the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan as a result of any proceeding under bankruptcy law or any similar
proceeding (other than a Deficient Valuation Amount); provided, however, that in
the case of an amount that is deferred, but not forgiven, such reduction shall
include only the net present value (calculated at the related Mortgage Rate) of
the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan which is in
default under the terms of the applicable Mortgage Loan documentation and for
which any applicable grace period has expired.
"DEFEASANCE COLLATERAL": With respect to any Defeasance Loan, the
United States Treasury obligations required or permitted to be pledged in lieu
of prepayment pursuant to the terms thereof.
"DEFEASANCE LOAN": Any Mortgage Loan which requires the related
Mortgagor (or permits the holder of such Mortgage Loan to require the related
Mortgagor) to pledge Defeasance Collateral to such holder in lieu of prepayment.
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property
relating to a Mortgage Loan in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
initiated under the United States Bankruptcy Code, as amended from time to time,
and that reduces the amount the Mortgagor is required to pay under such Mortgage
Loan.
"DEFICIENT VALUATION AMOUNT" means the amount by which the total
amount due with respect to a Mortgage Loan (excluding interest not yet accrued),
including the principal balance of a Mortgage Loan plus any accrued and unpaid
interest thereon and any other amounts recoverable from the Mortgagor with
respect thereto pursuant to the terms thereof, is reduced in connection with a
Deficient Valuation.
"DEFINITIVE CERTIFICATES" means Certificates of any Class issued
in definitive, fully registered, certificated form without interest coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is
repurchased from the Trust pursuant to the terms hereof or as to which one or
more Qualifying Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Bear Stearns Commercial Mortgage Securities
Inc., a Delaware corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations by and
among the Depositor, the Paying Agent and the Depository.
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"DETERMINATION DATE" means, with respect to any Distribution
Date, the 5th Business Day prior to the related Distribution Date, commencing
August 9, 1999.
"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 not offset by
Compensating Interest, allocated on such Distribution Date to such Class or
Interest pursuant to Section 6.6, and (ii) Realized Losses allocated on such
Distribution Date to reduce the interest payable to such Class or Interest
pursuant to Section 6.5, plus (B) the Unpaid Interest.
"DISTRIBUTION ACCOUNT" means the Distribution Account maintained
by the Paying Agent, in accordance with the provisions of Section 5.3, which
account shall be an Eligible Account.
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"DISTRIBUTION DATE" means the 15th day of each month or, if such
day is not a Business Day, the next succeeding Business Day, commencing August
16, 1999.
"DOCUMENT DEFECT" has the meaning set forth in Section 2.3(a).
"DUE DATE" means, with respect to a Mortgage Loan, the date on
which a Scheduled Payment is due.
"ELIGIBLE ACCOUNT" means (i) an account or accounts maintained
with a depository institution or trust company the long-term unsecured debt
obligations of which are rated at least "Aa3" or better by Moody's, or if not
rated by Moody's then otherwise approved by Moody's, and "A" by DCR if rated by
DCR or if not rated by DCR, then a comparable rating from at least two
nationally recognized statistical rating organizations or otherwise approved by
DCR; or (ii) an account or accounts in which funds will be held therein for 30
days or less which are maintained with a depository institution or trust
company, the short-term unsecured debt obligations of which are rated "P-1" or
better by Moody's, or if not rated by Moody's then otherwise approved by
Moody's, and "D-1" or better by DCR if rated by DCR, or if not rated by DCR then
a comparable rating from at least two nationally recognized statistical rating
organizations, in each case at the time of any deposit therein or otherwise
approved by DCR; or (iii) a segregated trust account or accounts maintained with
the corporate trust department of a federally or state chartered depository
institution or trust company acting in its fiduciary capacity, which may be the
Servicer (or any Affiliate of the Servicer), the Paying Agent, the Fiscal Agent
or Trustee, provided any such institution is subject to regulations regarding
fiduciary funds on deposit substantially similar to 12 C.F.R. Section 9.10(b)
and the maintenance of such account in such institution will not result in the
qualification (including the placement of any rated Certificate on "credit
watch" or the equivalent), downgrading or withdrawal of the rating then assigned
to any Class of Certificates as evidenced in writing by each Rating Agency; or
(iv) any account which is fully insured by the United States Government, the
Federal Deposit Insurance Corporation ("FDIC") or any other agency or
instrumentality of the United States; or (v) any account, the establishment and
maintenance of which is the subject of a Rating Agency Confirmation; or (vi) an
account or accounts maintained with Wells Fargo Bank, National Association (or
Wells Fargo & Company), provided that the long-term unsecured obligations of
Wells Fargo Bank, National Association (or Wells Fargo & Company) are rated "A"
or better by DCR and "A1" or better by Moody's. Eligible Accounts may bear
interest.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property.
(i) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the United States
of America, FNMA, FHLMC or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and credit of the
United States of America; provided that any obligation of, or guarantee by, FNMA
or FHLMC, other than an unsecured senior debt obligation of FNMA or FHLMC, shall
be an Eligible Investment only if Rating Agency Confirmation is obtained with
respect to such investment;
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(ii) demand and time deposits in, certificates of deposit
of, or bankers' acceptances issued by, any depository institution or trust
company (including the Trustee, the Fiscal Agent, the Servicer, the Special
Servicer, the Paying Agent or any Affiliate of the Servicer, the Special
Servicer, the Trustee, the Fiscal Agent or the Paying Agent acting in its
commercial capacity) incorporated or organized under the laws of the United
States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long as the commercial
paper or other short-term debt obligations of such depository institution or
trust company are rated "D-1+" or better by DCR, if rated by DCR or, if not
rated by DCR, then a comparable rating from at least two nationally recognized
statistical rating organizations or otherwise approved by DCR, and "P-1" or
better by Moody's, or if not rated by Moody's then otherwise approved by
Moody's, or are the subject of a Rating Agency Confirmation, or demand and time
deposits of Wells Fargo Bank, National Association (or Wells Fargo & Company),
provided that the long-term unsecured obligations of Wells Fargo Bank, National
Association (or Wells Fargo & Company) are rated "A" or better by DCR and "A1"
or better by Moody's;
(iii) repurchase agreements or obligations with respect to
any security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase obligation
will mature prior to the Business Day preceding the next Distribution Date upon
which, as described in the Agreement, such amounts are required to be withdrawn
from the related account and which meets the minimum rating requirement for such
entity described above;
(iv) securities (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities have ratings from Moody's and DCR that are at least
equal to the highest long-term credit ratings assigned by Moody's and DCR,
respectively, unless otherwise specified in writing by the Rating Agency;
provided that securities issued by any particular corporation will not be
Eligible Investments to the extent that investment therein will cause the then
outstanding principal amount of securities issued by such corporation and held
in the Certificate Account to exceed 10% of the sum of the Aggregate Principal
Balance and the aggregate principal amount of all Eligible Investments in the
Certificate Account;
(v) commercial paper (including both noninterest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof) rated
"P-1" by Moody's (if rated by Moody's) and "D-1+" by DCR, if rated by DCR and,
if not rated by DCR, then a comparable rating from at least two nationally
recognized statistical rating organizations or otherwise approved by DCR), or
with respect to which Rating Agency Confirmation has been obtained;
(vi) units of investment funds (including money market
funds) rated in the highest long-term category by Moody's, or if not rated by
Moody's then otherwise approved by Moody's, and the highest long-term category
by DCR or, if not rated by DCR, then a comparable rating from at least two
nationally recognized statistical rating organizations or otherwise approved by
DCR;
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(vii) guaranteed reinvestment agreements maturing 365 days
or less issued by any bank, insurance company or other corporation rated in the
highest long term unsecured rating, but in any event, not less than "Aaa" by
Moody's (if rated by Moody's) and by DCR (if rated by DCR);
(viii) any money market fund rated "Aaa" by Moody's or if
not rated by Moody's, then otherwise approved by Moody's, and "AAA" by DCR or,
if not rated by DCR, then a comparable rating from at least two nationally
recognized statistical rating organizations or otherwise approved by DCR, and
any other demand, money-market or time deposit, or any other obligation,
security or investment, that may be acceptable to the Rating Agencies as a
permitted investment of funds which will not result in a qualification
(including the placement of any rated Certificate on "credit watch" or the
equivalent), downgrading or withdrawal of the rating of any Class of
Certificates; and
(ix) such other investments bearing interest or sold at a
discount, or earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1) (as evidenced by an Opinion of
Counsel delivered to the Trustee by the Servicer at the Servicer's expense) that
are the subject of a Rating Agency Confirmation and otherwise treated as
"permitted investments" under Code Section 860G(a)(5);
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(1) of the Treasury Regulations and (B) that no such instrument shall
be an Eligible Investment if such instrument evidences either (X) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (Y) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (Z) if it may be redeemed at a price below the
purchase price (the foregoing clause (B) shall not apply to investments in units
of money market funds pursuant to clause (vi) or clause (viii) above); and
provided, further, that interest on any variable rate instrument shall be tied
to a single interest rate index plus a single fixed spread (if any) and move
proportionally with that index; and provided, further, that no amount
beneficially owned by any REMIC (including any amounts collected by the Servicer
but not yet deposited in the Certificate Account) may be invested in investments
treated as equity interests for Federal income tax purposes, unless the Servicer
and the Trustee shall receive an Opinion of Counsel to the effect that such
investment will not adversely affect the status of any such REMIC as a REMIC
under the Code or result in imposition of a tax on any such REMIC. Each Eligible
Investment shall have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change and shall not be subject to liquidation
prior to maturity. No Eligible Investments shall be purchased at a price in
excess of par or have maturities in excess of one year. For the purpose of this
definition, units of investment funds (including money market funds) shall be
deemed to mature daily.
"ENVIRONMENTAL LAWS" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or
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petroleum products, asbestos or asbestos-containing materials, polychlorinated
biphenyls, urea-formaldehyde insulation, radon, industrial, toxic or hazardous
substances or wastes, into the environment, including, without limitation,
ambient air, surface water, ground water or land, or otherwise relating to the
manufacture, processing, distribution, use, labeling, registration, treatment,
storage, disposal, transport or handling of any of the foregoing substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ESCROW ACCOUNT" means an account established by the Servicer
pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a
Mortgage Loan for taxes, assessments, water rates, Standard Hazard Insurance
Policy premiums, ground lease payments, reserves for capital improvements,
deferred maintenance, tenant improvements, leasing commissions, environmental
matters and other reserves or comparable items.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.28(b).
"EXCESS INTEREST" means, with respect to any ARD Loan that does
not pay on its Anticipated Repayment Date, the excess, if any of interest
accrued at the rate of interest applicable to such Mortgage Loan after such
Anticipated Repayment Date over interest accrued at the rate of interest
applicable to such Mortgage Loan before such Anticipated Repayment Date.
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any Mortgage
Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO
Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan on the date
such proceeds were received.
"EXCHANGE CERTIFICATION" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A-IAI Global
Certificate, as applicable.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of
an Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"FHLMC AUDIT PROGRAM" shall have the meaning set forth in Section
8.13.
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"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 or Specially Serviced Mortgage Loan by the Servicer in
consultation with the Special Servicer in respect of any Defaulted Mortgage Loan
(including a Mortgage Loan that became an REO Property), in each case, in its
good faith discretion, consistent with the Servicing Standard that all Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds, Purchase Proceeds and
other payments or recoveries which the Servicer or the Special Servicer, as the
case may be, expects to be finally recoverable on such Mortgage Loan, without
regard to any obligation of the Servicer, the Trustee or the Fiscal Agent, as
the case may be, to make payments from its own funds pursuant to Article IV
hereof, have been recovered. The Special Servicer shall be required to provide
the Servicer with prompt written notice of any Final Recovery Determination with
respect to any Specially Serviced Mortgage Loan upon making such determination.
The Servicer shall notify the Trustee and the Paying Agent of such determination
and the Paying Agent shall deliver a copy of such notice to each Rating Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of
rated Certificates, the Distribution Date on which such Class will be paid in
full assuming that timely payments will be made on the Mortgage Loans in
accordance with their terms.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking association
organized under the laws of the Netherlands and its permitted successors and
assigns.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in
Section 4.7 hereof.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"HOLDER" means the Person in whose name a Certificate is
registered on the Certificate Register.
"INDEPENDENT" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the Securities
and Exchange Commission's Regulation S-X. Independent means, when used with
respect to any other Person, a Person who (A) is in fact independent of another
specified Person and any Affiliate of such other Person, (B) does not have any
material direct or indirect financial interest in such other Person or any
Affiliate of such other Person, (C) is not connected with such other Person or
any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner,
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director or Person performing similar functions and (D) is not a member of the
immediate family of a Person defined in clause (B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the Servicer (other than the Servicer, but which may be an
Affiliate of the Servicer) or, (B) that is a Specially Serviced Mortgage Loan,
any Person designated by the Special Servicer that would be an "independent
contractor" with respect to the applicable REMIC Pool within the meaning of
Section 856(d)(3) of the Code if such REMIC Pool were a real estate investment
trust (except that the ownership test set forth in such Section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of the Aggregate Certificate Balance or Notional Amount, as the case may
be, of any Class of the Certificates (other than the Class R-III Certificates),
a Percentage Interest of 35% or more in the Class R-III Certificates or such
other interest in any Class of the Certificates or of the applicable REMIC Pool
as is set forth in an Opinion of Counsel, which shall be at no expense to the
Trustee or the Trust) so long as such REMIC Pool does not receive or derive any
income from such Person and provided that the relationship between such Person
and such REMIC Pool is at arm's length all within the meaning of Treasury
Regulation Section 1.856 - 4(b)(5) or (ii) any other Person (including the
Servicer or the Special Servicer) upon receipt by the Trustee of an Opinion of
Counsel, which shall be at the expense of the Person delivering such opinion to
the Trustee, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code), or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property.
"INDIRECT PARTICIPANTS" means entities, such as banks, brokers,
dealers and trust companies, that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly.
"INITIAL CERTIFICATION" has the meaning set forth in Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
"INSPECTION REPORT" means the report delivered by the Servicer or
the Special Servicer, as the case may be, substantially in the form of Exhibit L
hereto.
"INSTITUTIONAL ACCREDITED INVESTOR" shall mean an institutional
accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act.
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy 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.
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"INSURANCE PROCEEDS" means amounts paid by the insurer under any
Insurance Policy, other than amounts required to be paid over to the Mortgagor
pursuant to law, the related Mortgage Loan or the Servicing Standard.
"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 period beginning on the first day of the month preceding the
month in which such Distribution Date occurs and ending on the last day of the
month preceding the month in which such Distribution Date occurs.
"INTEREST RESERVE ACCOUNT" means, that Interest Reserve Account
maintained by the Servicer pursuant to Section 5.1(a) which account shall be an
Eligible Account.
"INTEREST RESERVE AMOUNT" shall having the meaning set forth in
Section 5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which bear
interest on an actual/360 day basis.
"INTERESTED PERSON" means, as of any date of determination, the
Servicer, the Special Servicer, the Depositor, with respect to any Mortgage
Loan, the holder of any related Junior Indebtedness, a holder of 50% or more of
the Controlling Class, [the Operating Adviser,] any Independent Contractor
engaged by the Servicer or the Special Servicer pursuant to this Agreement, or
any Person actually known to a Responsible Officer of the Trustee to be an
Affiliate of any of them.
"INVESTOR" means any purchaser of a Certificate.
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor
that is secured by a lien on the related Mortgaged Property that is junior in
right of payment to the lien of the Mortgage securing the related Mortgage Note.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan, all
amounts received during any Collection Period, whether as late payments or as
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds or otherwise, that represent payments or collections of Scheduled
Payments due but delinquent for a previous Collection Period and not previously
recovered.
"LATE FEES" shall mean a fee payable to the Servicer or the
Special Servicer, as the case may be, to the extent actually collected from the
Mortgagor as provided in the related Mortgage Loan in connection with a late
payment made by such Mortgagor.
"LIQUIDATION EXPENSES" means reasonable and direct expenses
incurred by the Special Servicer on behalf of the Trust in connection with the
enforcement and liquidation of any Specially Serviced Mortgage Loan or REO
Property acquired in respect thereof including, 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
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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.
"LIQUIDATION PROCEEDS" means proceeds from the sale or
liquidation of a Mortgage Loan or related REO Property, net of Liquidation
Expenses and any related Advances and interest thereon.
"LIQUIDATION REALIZED LOSS" means, with respect to each Mortgage
Loan or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance of the Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or REO
Disposition, plus (B) unpaid interest and interest accrued thereon at the
applicable Mortgage Rate, plus (C) any expenses incurred in connection with such
Mortgage Loan that are reimbursable to any Person, other than amounts previously
treated as Expense Losses or included in the definition of Liquidation Expenses
minus the sum of (i) REO Income applied as recoveries of principal or interest
on the related Mortgage Loan or REO Property, and (ii) Liquidation Proceeds
received during the Collection Period in which such Cash Liquidation or REO
Disposition occurred. REO Income and Liquidation Proceeds shall be applied first
against any Expense Losses (to the extent not included in the definition of
Liquidation Expenses) for such Mortgage Loan, the unpaid interest on the
Mortgage Loan, calculated as described in clause (B) above, and then against the
principal balance of such Mortgage Loan, calculated as described in clause (A)
above.
"LOAN-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.
"LOCK-BOX ACCOUNT" shall have the meaning set forth in Section
8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan,
any lock-box agreement relating to such Mortgage Loan among the related
Mortgagor, a depositary institution and the Servicer pursuant to which a
Lock-Box Account is created.
"LOSSES" has the meaning set forth in Section 12.4.
"MATURITY DATE" means, with respect to any Mortgage Loan as of
any date of determination, the date on which the last payment of principal is
due and payable under the related Mortgage Note, after taking into account all
Principal Prepayments received and any Deficient Valuation, Debt Service
Reduction Amount or modification of the Mortgage Loan occurring prior to such
date of determination, but without giving effect to (i) any acceleration of
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the principal of such Mortgage Loan or (ii) any grace period permitted by the
related Mortgage Note.
"MODIFICATION FEE" means a fee, if any, collected from a
Mortgagor by the Servicer in connection with a modification of any Mortgage Loan
other than a Specially Serviced Mortgage Loan or collected by the Special
Servicer in connection with the modification of a Specially Serviced Mortgage
Loan.
"MODIFICATION LOSS" means (i) a decrease in the principal balance
of a Mortgage Loan as a result of a modification thereof in accordance with the
terms hereof, (ii) any expenses connected with such modification, to the extent
(x) reimbursable to the Trustee, the Special Servicer or the Servicer and (y)
not recovered from the Mortgagor or (iii) in the case of a modification of a
Mortgage Loan that reduces the Mortgage Rate thereof, the excess, on each Due
Date, of the amount of interest that would have accrued at a rate equal to the
original Mortgage Rate, over interest that actually accrued on such Mortgage
Loan during the preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan, the
Maturity Date, Mortgage Rate, principal balance, amortization term or payment
frequency thereof or any provision thereof requiring the payment of a Prepayment
Premium or 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) Prepayment Premiums or Yield Maintenance Charges;
(iii) the number of outstanding Mortgage Loans and the aggregate Principal
Balance and Scheduled Principal Balance of the Mortgage Loans at the close of
business on such Distribution Date; (iv) the number and aggregate Scheduled
Principal Balance of Mortgage Loans (A) delinquent 30-59 days, (B) delinquent
60-89 days, (C) delinquent 90 or more days, (D) as to which foreclosure
proceedings have been commenced, or (E) as to which bankruptcy proceedings have
been commenced; (v) with respect to any REO Property included in the Trust, the
Principal Balance of the related Mortgage Loan as of the date of acquisition of
the REO Property and the Scheduled Principal Balance thereof; (vi) as of the
related Determination Date (A) as to any REO Property sold during the related
Collection Period, the date of the related determination by the Special Servicer
or Servicer, as the case may be, that it has recovered all payments which it
expects to be finally recoverable and the amount of the proceeds of such sale
deposited into the Certificate Account, and (B) the aggregate amount of other
revenues collected by the Special Servicer with respect to each REO Property
during the related Collection Period and credited to the Certificate Account, in
each case identifying such REO Property by the loan number of the related
Mortgage Loan; (vii) the aggregate Certificate Balance or Notional Amount, as
the case may be, of each Class of Certificates before and after giving effect to
the distribution made on such Distribution Date; (viii) the aggregate amount of
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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 a
description 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.
"MOODY'S" means Moody's Investors Service, Inc. or its successor
in interest.
"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 and Sale 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 Bear Stearns Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates, Series 1999-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;
(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;
(iii) an original assignment of the Mortgage, in recordable form,
to "LaSalle Bank National Association, as Trustee for Bear Stearns Commercial
Mortgage Securities Inc. Commercial Mortgage Pass-Through Certificates, Series
1999-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;
(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 Bear Stearns Commercial
Mortgage Securities Inc. Commercial Mortgage Pass-Through Certificates, Series
1999-WF2";
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(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 Bear Stearns Commercial
Mortgage Securities Inc. Commercial Mortgage Pass-Through Certificates, Series
1999-WF2";
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with evidence of
recording thereon, where appropriate, in those instances where the terms or
provisions of the Mortgage, Mortgage Note or any related security document have
been consolidated or modified or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof 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 fee interest in the Mortgaged Property, or if the policy
has not yet been issued, an original or copy of a written commitment, interim
binder or the pro forma title insurance policy, dated as of the date on which
the related Mortgage Loan was funded;
(x) the original or a copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan;
(xi) all UCC Financing Statements, assignments thereof and
continuation statements, or copies thereof, sufficient to perfect (and maintain
the perfection of) the security interest held by the originator of the Mortgage
Loan (and each assignee prior to the Trustee) in and to the personalty of the
Mortgagor at the Mortgaged Property (in each case with evidence of filing
thereon), and to transfer such security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the Mortgage, any
Mortgage Note or other document or instrument referred to above was not signed
by the Mortgagor;
(xiii) with respect to any Mortgage Loan with Additional Debt
that is subordinate to such Mortgage Loan, a subordination agreement, pursuant
to which such Additional Debt is subordinated to such Mortgage 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) a survey of the related Mortgaged Property;
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(xvi) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xvii) an original or copy of any lock-box agreements,
intercreditor agreements and management agreements related to any Mortgage Loan;
(xviii) an original or copy of any environmental reports and
environmental indemnification agreements related to any Mortgage Loan; and
(xix) an original of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan, together with the original
supporting documentation evidencing a beneficial transfer, in favor of "LaSalle
Bank National Association, as Trustee for Bear Stearns Commercial Mortgage
Securities Inc. Commercial Mortgage Pass-Through Certificates, Series 1999-WF2";
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, and Mortgage Loan shall also include any Defeasance Loan.
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan Purchase
Agreement I or Mortgage Loan Purchase Agreement II, as the case may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain Mortgage
Loan Purchase Agreement dated as of July 1, 1999 between BSF and the Depositor
with respect to the BSF Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain Mortgage
Loan Purchase Agreement between Wells Fargo and the Depositor dated as of July
1, 1999 with respect to the Wells Fargo 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 Wells Fargo
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
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end date; fee or leasehold interest; lien position; Anticipated Repayment Date
(if applicable); and Mortgage Rate following Anticipated Repayment Date (if
applicable).
"MORTGAGE NOTE" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan, the per annum
rate at which interest accrues on such Mortgage Loan.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any date of
determination, the holder of the related Mortgage Note as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"NET AGGREGATE BALLOON INTEREST SHORTFALL": means for any
Distribution Date, the excess, if any, of aggregate Balloon Interest Shortfalls
over the aggregate Balloon Interest Excesses for the related Collection Period.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, (i) with respect to all Mortgage Loans which are not
Specially Serviced Mortgage Loans, the excess, if any, of aggregate Prepayment
Interest Shortfalls for such Mortgage Loans over the sum of (A) the portion of
the aggregate Servicing Fee for the related Collection Period calculated in
respect of all such Mortgage Loans (including REO Mortgage Loans) less the
portion thereof payable to the Sub-Servicers as Sub-Servicing Fees and (B) the
aggregate Prepayment Interest Excesses for such Collection Period for all
Mortgage Loans which are not Specially Serviced Mortgage Loans, and (ii) with
respect to all Specially Serviced Mortgage Loans on which there have been
voluntary Principal Prepayments (not from Liquidation Proceeds or from
modifications to Specially Serviced Mortgage Loans), the excess, if any, of
aggregate Prepayment Interest Shortfalls for such Mortgage Loans over the sum of
(A) the portion of the aggregate Special Servicing Fee for the related
Collection Period calculated in respect of all Specially Serviced Mortgage Loans
(including REO Mortgage Loans) and (B) the aggregate Prepayment Interest
Excesses for such Collection Period for all Specially Serviced Mortgage Loans
(including REO Mortgage Loans).
"NEW LEASE" means any lease of any REO Property entered into on
behalf of the Trust, including any lease renewed or extended on behalf of the
Trust if the Trust has the right to renegotiate the terms of such lease.
"NEW YORK PRESENTING OFFICE" means an office, if any, of an agent
of the Trustee, the Certificate Registrar or the Paying Agent, as the Trustee,
the Certificate Registrar or the Paying Agent may designate from time to time by
written notice to the Depositor and the Certificateholders.
"1933 ACT" means the Securities Act of 1933, as amended.
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"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"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 the portion of any Advance
(including interest accrued thereon at the Advance Rate) previously made or
proposed to be made by the Servicer, the Trustee or the Fiscal Agent that, in
its sole discretion, exercised in good faith and, with respect to the Servicer,
in accordance with the Servicing Standard, that will not or, in the case of a
current delinquency, would not be, ultimately recoverable, from Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase Proceeds from
any collections with respect to the related Mortgage Loan or REO Property, as
evidenced by an Officer's Certificate delivered pursuant to Section 4.4. Such
Officer's Certificate shall be delivered to the Trustee (upon which the Trustee
may conclusively rely) or to the Depositor (if the Trustee or the Fiscal Agent
is delivering such Officer's Certificate) and (in either case) to the Special
Servicer and the Paying Agent in the time periods as specified in Section 4.4
and shall include the information and reports set forth in Section 4.4. In
determining whether an Advance with respect to any Mortgage Loan will be
recoverable, the Servicer, the Trustee or the Fiscal Agent, as applicable, shall
take into account amounts that may be realized on the related Mortgaged Property
in its "as is" or then current condition and occupancy. Absent bad faith or
breach of the Servicing Standard, the Servicer's determination as to the
recoverability of any Advance shall be conclusive and binding on the
Certificateholders and may, in all cases, be relied on by the Trustee and the
Fiscal Agent.
"NON-REGISTERED CERTIFICATE" means unless and until registered
under the Securities Act, any Class G, Class H, Class I, Class J, Class K, Class
L, Class M or Residual Certificate.
"NOTIONAL AMOUNT" means, as of any date of determination: (i)
with respect to all of the Class X Certificates as a Class, the Class X Notional
Amount as of such date of determination; and (ii) with respect to any Class X
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X Notional Amount as of such date of determination.
"OFFICER'S CERTIFICATE" means (w) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (x) in
the case of the Servicer and the Special Servicer, any of the officers referred
to above or an 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.
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"OPERATING ADVISER" shall have the meaning specified in Section
9.37(a).
"OPERATING ADVISER VOTES" shall mean the votes cast at a duly
called meeting by the Holders of the Controlling Class to elect an Operating
Adviser.
"OPINION OF COUNSEL" means a written opinion of counsel addressed
to the Trustee, reasonably acceptable in form and substance to the Trustee, and
who may be in-house or outside counsel to the party required to deliver such
opinion but who, in the good faith judgment of the Trustee, is Independent
outside counsel knowledgeable of the issues occurring in the practice of
securitization with respect to any such opinion of counsel concerning the
taxation, or status as a REMIC for tax purposes, of the Trust or any REMIC Pool.
"OWNERSHIP INTEREST" means, as to any Certificate, any ownership
or security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I ADVANCE" shall mean, (i) with respect to any Mortgage Loan
or Specially Serviced Mortgage Loan as to which all or a portion of the
Scheduled Payment (other than a Balloon Payment) due during the related
Collection Period was not received by the Servicer as of the related
Determination Date, the portion of such Scheduled Payment not received; (ii)
with respect to any Balloon Mortgage Loan (including any REO Property as to
which the related Mortgage Loan provided for a Balloon Payment) as to which a
Balloon Payment was due during or prior to the related Collection Period but was
delinquent, in whole or in part, as of the related Determination Date, an amount
equal to the excess, if any, of the Assumed Scheduled Payment for such Balloon
Mortgage Loan for the related Collection Period, over any Late Collections
received in respect of such Balloon Payment during such Collection Period; and
(iii) with respect to each REO Property, an amount equal to the excess, if any,
of the Assumed Scheduled Payment for the Mortgage Loan related to such REO
Property during the related Collection Period, over remittances of REO Income to
the Servicer by the Special Servicer, reduced by any amounts required to be paid
as taxes on such REO Income (including taxes imposed pursuant to Section 860G(c)
of the Code); provided, however, that the interest portion of any Scheduled
Payment or Assumed Scheduled Payment shall be advanced at a per annum rate equal
to the sum of the REMIC I Net Mortgage Rate relating to such Mortgage Loan or
Mortgage Loan relating to such REO Property and the Trustee Fee Rate, such that
the Scheduled Payment or Assumed Scheduled Payment to be advanced as a P&I
Advance shall be net of the Servicing Fee; and provided, further, that the
Scheduled Payment or Assumed Scheduled Payment for any Mortgage Loan which has
been modified shall be calculated based on its terms as modified and provided,
further, that the amount of any P&I Advance with respect to a Mortgage Loan as
to which there has been an Appraisal Reduction will be an amount equal to the
product of (i) the amount required to be advanced without giving effect to this
proviso and (ii) a fraction, the numerator of which is the Principal Balance of
such Mortgage Loan as of the immediately preceding Determination Date less any
Appraisal Reduction and the denominator of which is the Principal Balance of the
Mortgage Loan as of such Determination Date. All P&I Advances for any Mortgage
Loans that have been modified shall be calculated on the basis of their terms as
modified.
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"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan or
REO Property, the amount of the P&I Advance for each Mortgage Loan computed for
any Distribution Date.
"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 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 Excess Interest) 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 Excess Interest) shall equal
the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (iii)
with respect to the Class A-1, Class A-2, Class G, Class H, Class I, Class J,
Class K, Class L and Class M Certificates, the lesser of (A) the fixed rate
corresponding to such Class set forth in the Preliminary Statement hereto and
(B) the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date,
(iv) the Class X Certificates, the per annum rate equal to the quotient of the
Accrued Certificate Interest thereon for such Distribution Date and the Class X
Notional Amount, (v) the Class B Certificates, the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date minus 0.080%, (vi) the Class C, Class
D, Class E and Class F Certificates, the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date.
"PAYING AGENT" means Norwest Bank Minnesota, National Association
and its successors and assigns.
"PAYING AGENT FEE" means the portion of the Trustee Fee payable
to the Paying Agent, which equals for each calendar month, as to each Mortgage
Loan (including REO Mortgage Loans and Defeasance Loans), the portion of the
Paying Agent Fee Rate applicable to such month (determined using the same
methodology that is applied with respect to the Mortgage Rate for such Mortgage
Loan for such month) multiplied by the Scheduled Principal Balance of such
Mortgage Loan immediately before the Due Date occurring in such month.
"PAYING AGENT FEE RATE" means 0.0023% 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
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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 that is a QIB.
"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.
"PLACEMENT AGENT" means Bear, Stearns & Co. Inc.
"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
such property is in compliance with applicable Environmental Laws and that there
are no 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.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor
regulations set forth in 29 C.F.R. ss. 2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in
the preliminary statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date and
the related Collection Period, during which a full or partial Principal
Prepayment (or Balloon Payment, if such Balloon Payment is made not more than 60
days after its original Maturity Date) is made after the Due Date for such
Mortgage Loan through and including the last day of the Collection Period, the
amount of interest that accrues on the Mortgage Loan from such Due Date to the
date such payment was made (net of the Servicing Fee or Special Servicing Fee
and the Trustee Fee), to the extent collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including payment of a Balloon Payment not more than 60 days after its original
Maturity Date) made during any Collection Period prior to the Due Date for such
Mortgage Loan in such Collection Period. The amount of any Prepayment Interest
Shortfall shall equal the excess of (A) the aggregate amount of interest which
would have accrued on the Scheduled Principal Balance of such Mortgage Loan or
on such Balloon Payment for the 30 days ending on such Due Date if such
Principal Prepayment or Balloon Payment had not been made (net of the Servicing
Fee or Special Servicing Fee and the Trustee Fee) over (B) the aggregate
interest that did so accrue through the date such payment was made.
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"PREPAYMENT PREMIUM" means, with respect to any Mortgage Loan,
the fixed prepayment premium set forth in the related Mortgage Loan documents
and calculated as a specified percentage of the then outstanding principal
balance of the related Mortgage Loan but which is not a Yield Maintenance
Charge.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan or
REO Mortgage Loan, for purposes of performing calculations with respect to any
Distribution Date, the principal balance of such Mortgage Loan or the related
REO Mortgage Loan outstanding as of the Cut-off Date after taking into account
all principal and interest payments made or due prior to the Cut-Off Date,
reduced (to not less than zero) by (i) any payments or other collections of
amounts allocable to principal on such Mortgage Loan that have been collected or
received during any preceding Collection Period (excluding amounts due prior to
the Cut-Off Date), other than any Scheduled Payments due in any subsequent
Collection Period, and (ii) the principal portion of any Realized Loss incurred
in respect of such Mortgage Loan during any related Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the Class
A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class I, Class J, Class K, Class L and Class M Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution Date,
the sum of the following amounts: (i) the principal portion of all Scheduled
Payments (other than the principal portion of Balloon Payments) and any Assumed
Scheduled Payments due or deemed due, as the case may be, in respect of the
Mortgage Loans and any REO Mortgage Loans for their respective Due Dates
occurring during the related Collection Period; (ii) all payments (including
Principal Prepayments and the principal portion of Balloon Payments) and any
other collections (including Liquidation Proceeds (other than the portion
thereof, if any, constituting Excess Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received on or
in respect of the Mortgage Loans during the related Collection Period and that
were identified and applied by the Servicer as principal thereof, in each case
net of any portion of such payment or other collection that represents a
recovery of the principal portion of any Scheduled Payment (other than a Balloon
Payment) due, or of the principal portion of any Assumed Scheduled Payment
deemed due, in respect of the related Mortgage Loan on a Due Date during or
prior to the related Collection Period and not previously recovered.
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary payment
or collection of principal on a Mortgage Loan which is received or recovered in
advance of its scheduled Due Date and applied to reduce the principal balance of
the Mortgage Loan in advance of its scheduled Due Date or, in connection with a
Balloon Payment, received within 60 days of the original Maturity Date in
connection with such Balloon Payment, including, without limitation, all
proceeds, to the extent allocable to principal, received from the payment of
cash in connection with a substitution shortfall pursuant to Section 2.3;
provided, that the pledge by a Mortgagor of Defeasance Collateral with respect
to a Defeasance Loan shall not be deemed to be a Principal Prepayment.
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"PRIVATE PLACEMENT MEMORANDUM" has the meaning set forth in the
preliminary statement hereto.
"PROPOSED DISPOSITION" means a proposed disposition of any
Defaulted Mortgage Loan or the Mortgaged Property related thereto to be
performed as provided in Section 9.15 or 9.17 of this Agreement.
"PROSPECTUS" has the meaning set forth in the preliminary
statement hereto.
"PURCHASE PRICE" means, with respect to the repurchase of a
Mortgage Loan or REO Property pursuant to Article II of this Agreement, a price
equal to the sum of (A) 100% of the unpaid principal balance of such Mortgage
Loan (or deemed principal balance, in the case of an REO Property), plus (B)
accrued but unpaid interest thereon calculated at the Mortgage Rate to, but not
including, the Due Date in the Collection Period in which such purchase occurs,
plus (C) the amount of any expenses related to such Mortgage Loan or REO
Property (including any Servicing Advances, Advance Interest related to such
Mortgage Loan and any Special Servicer Fees and Liquidation Fees) that are
reimbursable to the Servicer, the Special Servicer, the Trustee 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,
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 "A2" by Moody's, if rated by Moody's or if not
rated by Moody's, then otherwise approved by Moody's, and "A" by DCR if rated by
DCR or if not rated by DCR, then having a comparable rating from at least two
other nationally recognized statistical rating organizations or otherwise
approved by DCR, and (ii) with respect to an Errors and Omissions Insurance
Policy or Fidelity Bond an insurance company that has a claim paying ability a
rating of no lower than two ratings categories (without regard to pluses or
minuses or numerical qualifiers) lower than the highest rating of any
outstanding Class of Certificates from time to time, but in no event lower than
"A2" by Moody's, if rated by Moody's or if not rated by Moody's, then otherwise
approved by Moody's, and "A" by DCR if rated by DCR or if not rated by DCR, then
having a comparable rating from at least two other nationally recognized
statistical rating organizations or
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otherwise approved by DCR, or (iii) in either case, a company not satisfying
clause (i) or (ii) but with respect to which Rating Agency Confirmation is
obtained.
"QUALIFIED MORTGAGE" means a Mortgage Loan that is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (but without
regard to the rule in Treasury Regulation Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage, or any substantially similar
successor provision) and applicable Treasury Regulations promulgated pursuant
thereto.
"QUALIFYING LEASEHOLD" means a leasehold interest in real
property extending or renewable automatically for a period of at least 10 years
beyond the Maturity Date of the related Mortgage Loan.
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has a principal balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution, not
in excess of the principal balance of the Deleted Mortgage Loan; provided,
however, that, to the extent that the principal balance of such Mortgage Loan is
less than the principal balance of the Deleted Mortgage Loan, then such
differential in principal amount, together with interest thereon at the Mortgage
Rate on the related Mortgage Loan from the date as to which interest was last
paid through the last day of the month in which such substitution occurs, shall
be paid by the party effecting such substitution to the Servicer for deposit
into the Certificate Account, and shall be treated as a Principal Prepayment
hereunder; (ii) is accruing interest at a rate of interest at least equal to
that of the Deleted Mortgage Loan; (iii) has a remaining term to stated maturity
not greater than, and not more than two years less than, that of the Deleted
Mortgage Loan; (iv) has an original loan-to-value ratio not higher than that of
the Deleted Mortgage Loan and a current loan-to-value ratio (equal to the
principal balance on the date of substitution divided by its current Appraised
Value) not higher than the current loan-to-value ratio of the Deleted Mortgage
Loan; (v) will comply with all of the representations and warranties relating to
Mortgage Loans set forth herein, as of the date of substitution; (vi) has a
Phase I Environmental Report relating to the related Mortgaged Property in its
Mortgage Files and such Phase I Environmental Report does not, in the good faith
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard raise material issues that have not been adequately addressed; (vii) as
to which the Trustee has received an Opinion of Counsel, at the related Seller's
expense, that such Mortgage Loan is a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; and (viii) has a Debt Service
Coverage Ratio not lower than that of the Deleted Mortgage Loan as of the
Cut-Off Date unless otherwise approved by the Special Servicer; provided that no
Mortgage Loan may have a Maturity Date after the date three years prior to the
Final Rated Distribution Date, and provided, further, that no such Mortgage Loan
shall be substituted for a Deleted Mortgage Loan unless Rating Agency
Confirmation is obtained. In the event that either one mortgage loan is
substituted for more than one Deleted Mortgage Loan or more than one 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
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pursuant to this Agreement, the party effecting such substitution shall certify
that such Mortgage Loan meets all of the requirements of this definition and
shall send such certification to the Trustee, which shall deliver a copy of such
certification to the Special Servicer promptly, and in any event within five
Business Days following the Trustee's receipt of such certification.
"RATING AGENCIES" means DCR and Moody's.
"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency that a proposed action, failure to
act, or other event specified herein will not in and of itself result in the
withdrawal, downgrade, or qualification (including the placement of any rated
Certificate on "credit watch" or the equivalent), as applicable, of the rating
assigned by such Rating Agency to any Class of Certificates then rated by such
Rating Agency.
"REALIZED INTEREST LOSS" means (i) in the case of a Liquidation
Realized Loss, the portion of any Liquidation Realized Loss that exceeds the
Realized Principal Loss on the related Mortgage Loan, (ii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to accrued
interest on the related Mortgage Loan, (iii) in the case of an Expense Loss, an
Expense Loss resulting in any period from the payment of the Special Servicing
Fee and any Expense Losses set forth in the last sentence of the definition of
"Realized Principal Loss" or (iv) in the case of a Modification Loss, a
Modification Loss described in clause (ii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss. Realized Losses on a Mortgage Loan
are allocated first to the principal balance of, and then to interest on such
Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means (i) in the case of a Liquidation
Realized Loss, the amount of such Realized Loss, to the extent that it does not
exceed the principal balance of the Mortgage Loan (or deemed principal balance,
in the case of REO Property), (ii) in the case of a Modification Loss, the
amount of such Modification Loss described in clause (i) of the definition
thereof, (iii) in the case of a Bankruptcy Loss, the portion of such Realized
Loss attributable to the reduction in the principal balance of the related
Mortgage Loan, and (iv) in the case of an Expense Loss, the portion thereof not
treated as a Realized Interest Loss. Notwithstanding clause (iv) of the
preceding sentence, to the extent that Expense Losses (exclusive of Expense
Losses resulting from payment of the Special Servicing Fee) exceed amounts
received with respect to the Mortgage Loans that were identified as allocable to
principal, such excess shall be treated as a Realized Interest Loss.
"RECORD DATE" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan or REO Property following the period
in which a Final Recovery Determination occurs plus other amounts defined as
"Recoveries" herein.
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"REGISTERED CERTIFICATES" means, collectively, the Class X, Class
A-1, Class A-2, Class B, Class C, Class D, Class E and Class F Certificates.
"REGULATION S" means Regulation S under the 1933 Act.
"REGULATION S CERTIFICATE" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S
Permanent Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with respect
to any Class of Certificates offered and sold outside of the United States in
reliance on Regulation S, a single temporary global Certificate, in definitive,
fully registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced
Mortgage Loan with respect to which (i) three consecutive Scheduled Payments
have been made (in the case of any such Mortgage Loan that was modified, based
on the modified terms), (ii) no other Servicing Transfer Event has occurred and
is continuing (or with respect to determining whether a Required Appraisal Loan
is a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other
Appraisal Event has occurred and is continuing) and (iii) the Trust has been
reimbursed for all costs incurred as a result of the occurrence of a Servicing
Transfer Event or such amounts have been forgiven.
"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, 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, for which a REMIC election has been made pursuant to Section
12.1(a) hereof.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular
Interests and the Class R-I Certificates.
"REMIC I NET MORTGAGE RATE" means, as to any REMIC I Regular
Interest, a rate per annum equal to the Mortgage Rate for the related Mortgage
Loan as of the Cut-Off Date (and without regard to any modification, waiver or
amendment of the terms thereof following the Cut-Off Date) calculated on a 360
day year consisting of twelve 30-day months regardless of the actual terms of
the related Mortgage Loan, minus the Administrative Cost Rate.
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"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 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 Excess Interest.
"REMIC I EXCESS INTEREST" means the uncertificated interest
designated as a "regular interest" in REMIC I, which shall consist of the
aggregate amount of Excess Interest on all Mortgage Loans, if any.
"REMIC II" means the segregated pool of assets consisting of the
REMIC I Regular Interests and the REMIC I Excess Interest for which a REMIC
election has been made pursuant to Section 12.1(a) hereof.
"REMIC II EXCESS INTEREST" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of the
amounts paid or deemed to be paid to the REMIC I Excess Interest.
"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 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.
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"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 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 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
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Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II
Regular Interest J, REMIC II Regular Interest K and REMIC II Regular Interest L,
REMIC II Regular Interest M and the REMIC II Excess Interests.
"REMIC III CERTIFICATES" has the meaning set forth in the final
paragraph of the Preliminary Statement hereto.
"REMIC III CLASS M REGULAR INTEREST" shall mean the
uncertificated interest designated as a "regular interest" in REMIC III, which
shall be entitled to the principal and interest paid on the Class M Certificates
as set forth in the table under REMIC III in the Preliminary Statement herein.
"REMIC III EXCESS INTEREST" shall mean the uncertificated
interest designated as a "regular interest" in REMIC III, which shall be
entitled to receive the amount paid on the REMIC II Excess Interest.
"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 and Class L Certificates, REMIC III Class M Regular
Interest and the REMIC III Excess 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 regulations and rulings promulgated thereunder, as the foregoing
may be in effect from time to time and taking account, as appropriate, of any
proposed legislation which, as proposed, would have an effective date prior to
enactment thereof and any proposed regulations.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class I,
Class J, Class K, Class L and Class M Certificates.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO
Property, income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO DISPOSITION" means the receipt by the Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
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"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 as to which the related
Mortgaged Property is an REO Property.
"REO PROPERTY" means a Mortgaged Property 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 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.
"REQUEST FOR RELEASE" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan as to which an
Appraisal Event has occurred. A Mortgage Loan will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"REQUIRED INSURANCE POLICY" means with respect to any Mortgaged
Property, any insurance policy that is required to be maintained from time to
time under this Agreement in respect of such Mortgaged Property, including each
Standard Hazard Insurance Policy and, if applicable, flood insurance policy.
"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
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with respect to any successor Trustee, Fiscal Agent or Paying Agent, any Vice
President, Assistant Vice President, corporate trust officer or any assistant
corporate trust officer.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class M,
Class L, Class K, Class J, Class I, Class H, Class G, Class F, Class E, Class D,
Class C, Class B and Class A Certificates.
"REVIEW THRESHOLD" means, with respect to any Mortgage Loan, that
the Principal Balance of such Mortgage Loan at such time equals or exceeds 5% of
the Aggregate Certificate Balance, but, in any case, at least $2.5 million.
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any
Class of Certificates offered and sold in reliance on Rule 144A or to certain
institutional "accredited investors" within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D of the 1933 Act, a single, permanent global
Certificate, in definitive, fully registered form without interest coupons.
"SCHEDULED PAYMENT" means each scheduled payment of principal of,
and interest on, a Mortgage Loan required to be paid on its Due Date by the
Mortgagor in accordance with the terms of the related Mortgage Note (excluding
all amounts of principal and interest which were due on or before the Cut-Off
Date, whenever received, and taking account of any modifications thereof and the
effects of any Debt Service Reduction Amounts and Deficient Valuation Amounts).
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any Mortgage
Loan or REO Mortgage Loan, for purposes of performing calculations with respect
to any Distribution Date, the Principal Balance thereof minus the aggregate
amount of any P&I Advances of principal previously made with respect to such
Mortgage Loan or REO Mortgage Loan.
"SELLER" means BSF or Wells Fargo, as the case may be.
"SENIOR CERTIFICATES" means the Class A and Class X Certificates.
"SERVICER" means Wells 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
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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 and in such media as may be agreed upon by the Servicer and the Paying
Agent containing such information regarding the Mortgage Loans as will permit
the Paying Agent to calculate the amounts to be distributed to the
Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report to Certificateholders required to be delivered
hereunder and containing such additional information as the Servicer, the Paying
Agent and the Depositor may from time to time mutually agree.
"SERVICER'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 such Mortgage Loan. "Servicing Advances" shall not
include allocable overhead of the Servicer or the Special Servicer, such as
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses, and similar internal costs and expenses.
"SERVICING FEE" means for each calendar month, as to each
Mortgage Loan (including REO Mortgage Loans 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 for
such month) multiplied by the Scheduled Principal Balance of each Mortgage Loan
immediately before the Due Date occurring in such month, subject to reduction in
respect of Compensating Interest, as set forth in Section 8.10(c).
"SERVICING FEE RATE" means, with respect to each Mortgage Loan
(including any Mortgage Loan relating to an REO Property), 0.05% per annum
(including any rate of 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 whose name and specimen signature appear on a list of servicing
officers or employees furnished to the Trustee by the Servicer and signed by an
officer of the Servicer, as such list may from time to time be amended.
"SERVICING STANDARD" means, with respect to the Servicer and the
Special Servicer the higher of the following standards of care:
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(a) in the same manner in which and with the same care, skill,
prudence and diligence with which the Servicer or the Special Servicer, as the
case may be, services and administers similar mortgage loans for other
third-party portfolios, giving due consideration to customary and usual
standards of practice of prudent institutional commercial mortgage lenders
servicing their own mortgage loans and to the maximization of the net present
value of the mortgage loans; or
(b) the care, skill, prudence and diligence the Servicer or the
Special Servicer, as the case may be, uses for loans which it owns and which are
substantially the same as the Mortgage Loans, giving due consideration to the
maximization of the net present value of the mortgage loans;
but without regard to: any relationship that the Servicer or Special Servicer or
any Affiliate of the Servicer or Special Servicer may have with the related
Mortgagor; the ownership of any Certificate by the Servicer or Special Servicer
or any Affiliate; the ownership of any Junior Indebtedness by the Servicer or
Special Servicer or any Affiliate with respect to the Mortgaged Property
securing any Mortgage Loan; the Servicer or Special Servicer's right to receive
compensation for its services hereunder or with respect to any particular
transaction; the servicing of the Mortgage Loans that are not Specially Serviced
Mortgage Loans by the Servicer; and the Servicer's obligation to make Advances
and Servicing Advances as specified herein or the Servicer's obligation to
repurchase any Mortgage Loan under the Mortgage Loan Purchase Agreement I.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) any Mortgage Loan as to which a Balloon Payment is past
due, and the Servicer has determined, in its good faith reasonable judgment,
that payment is unlikely to be made on or before the 60th day succeeding the
date the Balloon Payment was due, or any other payment is more than 60 days past
due or has not been made on or before the second Due Date following the due date
such payment was due; (ii) any Mortgage Loan as to which, to the Servicer's
knowledge, the borrower has consented to the appointment of a receiver or
conservator in any insolvency or similar proceeding of, or relating to, such
borrower or to all or substantially all of its property, or the borrower has
become the subject of a decree or order issued under a bankruptcy, insolvency or
similar law and such decree or order shall have remained undischarged or
unstayed for a period of 60 days; (iii) any Mortgage Loan as to which the
Servicer shall have received notice of the foreclosure or proposed foreclosure
of any other lien on the Mortgaged Property; (iv) any Mortgage Loan as to which
the Servicer has knowledge of a default (other than a failure by the related
borrower to pay principal or interest) which in the good faith reasonable
judgment of the Servicer materially and adversely affects the interests of the
Certificateholders and which has occurred and remains unremedied for the
applicable grace period specified in such Mortgage Loan (or, if no grace period
is specified, 60 days); (v) any Mortgage Loan as to which the borrower admits in
writing its inability to pay its debts generally as they become due, files a
petition to take advantage of any applicable insolvency or reorganization
statute, makes an assignment for the benefit of its creditors or voluntarily
suspends payment of its obligations; and (vi) any Mortgage Loan as to which, in
the good faith reasonable judgment of the Servicer, a default has occurred or in
the judgment of the Servicer is imminent or is likely to occur within 60 days.
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"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 Work-Out Fees and any other amounts to be paid to the Special Servicer
pursuant to the terms of this Agreement, including without limitation,
assumption fees as provided under Section 9.5 and 9.11 herein.
"SPECIAL SERVICER MONTHLY REPORTS" mean the reports substantially
in the form of Exhibit O attached hereto.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day
preceding each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to
each Mortgage Loan which is a Specially Serviced Mortgage Loan, the fraction or
portion of the Special Servicing Fee Rate applicable to such month (determined
using the same interest accrual methodology that is applied with respect to the
Mortgage Rate for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of such Specially Serviced Mortgage Loan immediately before
the Due Date occurring in such month, subject to reduction in respect of
Compensating Interest as set forth in Section 9.11.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of the
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and the Servicer by the Special Servicer signed by an
officer of the Special Servicer, as such list may from time to time be amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan with respect to which the Servicer has notified
the Special Servicer, the
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Paying Agent and the Trustee that a Servicing Transfer Event has occurred (which
notice shall be effective upon receipt) and the Special Servicer has received
all information, documents and records relating to such Mortgage Loan as
reasonably requested by the Special Servicer to enable it to assume its duties
with respect to such Mortgage Loan. A Specially Serviced Mortgage Loan shall
cease to be a Specially Serviced Mortgage Loan from and after the date on which
the Special Servicer notifies the Servicer, the Paying Agent and the Trustee, in
accordance with Section 8.1(b), that such Mortgage Loan has become a
Rehabilitated Mortgage Loan with respect to such Servicing Transfer Event,
unless and until the Servicer notifies the Special Servicer, the Paying Agent
and the Trustee, in accordance with Section 8.1(b) that another Servicing
Transfer Event with respect to such Mortgage Loan exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"SUB-SERVICER" shall have the meaning set forth in Section 8.4.
"SUB-SERVICING FEE" means with respect to each Mortgage Loan
(including Mortgage Loans relating to REO Properties) the monthly fee payable to
the applicable Sub-Servicer based on the per annum rate specified on the
Mortgage Loan Schedule.
"SUBORDINATE CERTIFICATES" means, collectively, the Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class I, Class J, Class K,
Class L and Class M Certificates.
"TAX MATTERS PERSON" means the person designated as the "tax
matters person" of the REMIC Pool pursuant to Treasury Regulation Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" shall have the meaning set forth in Section
10.1(b) herein.
"TITLE INSURANCE POLICY" means a title insurance policy
maintained with respect to a Mortgage Loan issued on the date of origination of
the related Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement, the
assets which consist of all the assets of REMIC I (including the Mortgage Loans,
such amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Insurance Policies, any REO Properties and other items
referred to in Section 2.1(a) hereof), REMIC II and REMIC III.
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"TRUSTEE" means LaSalle Bank National Association, as Trustee, or
its successor-in-interest, or if any successor trustee, or any co-trustee shall
be appointed as herein provided, then Trustee shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
"TRUSTEE FEE" means for each calendar month, as to each Mortgage
Loan (including REO Mortgage Loans 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 for such month) multiplied by the Scheduled Principal Balance of
each Mortgage Loan immediately before the Due Date occurring in such month,
provided that a portion of the Trustee Fee shall be applied to pay the Paying
Agent Fee.
"TRUSTEE FEE RATE" means 0.0030% per annum (of which 0.0023% 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 Stearns & Co. Inc., Morgan
Stanley & Co. Incorporated and Norwest Investment Services, Inc. or their
respective successors in interest.
"UNITED STATES PERSON" means (i) any natural person resident in
the United States, (ii) any partnership or corporation organized or incorporated
under the laws of the United States or any state thereof or the District of
Columbia, (iii) any estate of which an executor or administrator is a U.S.
Person (other than an estate governed by foreign law and of which at least one
executor or administrator is a non-U.S. Person who has sole or shared investment
discretion with respect to its assets), (iv) any trust of which any trustee is a
U.S. Person (other than a trust of which at least one trustee is a non-U.S.
Person and has sole or shared investment discretion with respect to its assets),
(v) any agency or branch of a foreign entity located in the United States, (vi)
any non-discretionary or similar account (other than an estate or trust) held by
a dealer or other fiduciary for the benefit or account of a U.S. Person, (vii)
any discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the United States (other than such an account held for the benefit or account
of a non-U.S. Person), (viii) any partnership or corporation organized or
incorporated under the laws of a foreign jurisdiction and formed by a U.S.
Person principally for the purpose of investing in securities not registered
under the 1933 Act (unless it is organized or incorporated, and owned, by
accredited investors within the meaning of Rule 501(A) under the 1933 Act who
are not natural persons, estates or trusts); provided, however, that the term
"U.S. Person" shall not include (A) a branch or agency of a U.S. Person that is
located and operating outside the United States for valid business purposes as a
locally regulated branch or agency engaged in the banking or insurance business,
(B) any employee benefit plan established and administered in accordance with
the law, customary practices and documentation of a
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foreign country and (C) the international organizations set forth in Section
902(o)(7) of Regulation S under the 1933 Act and any other similar international
organizations, and their agencies, affiliates and pension plans.
"UNPAID INTEREST" means, on any Distribution Date with respect to
any Class of Interests or Certificates (other than the Residual Certificates),
the portion of Distributable Certificate Interest for such Class remaining
unpaid as of the close of business on the preceding 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.
"WELLS FARGO" has the meaning assigned in the Preliminary
Statement hereof.
"WELLS FARGO LOANS" means, collectively those Mortgage Loans sold
to the Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"WORK-OUT FEE" means a fee payable with respect to any
Rehabilitated Mortgage Loan, equal to the product of (x) 1.0% and (y) the amount
of each collection of interest (other than default interest and Excess Interest)
and principal received on such Mortgage Loan for so long as it remains a
Rehabilitated Mortgage Loan.
"YIELD MAINTENANCE CHARGE": With respect to any Mortgage Loan,
the yield maintenance charge calculated pursuant to a formula set forth in the
related Mortgage Note intended to result in a payment to the lender of an amount
which is generally equal to the present value of the remaining interest payments
that would have become due had such prepayment not occurred to the extent such
interest payments would have accrued at a rate in excess of the specified Yield
Rate.
"YIELD RATE": With respect to any Mortgage Loan that provides for
the payment of a Yield Maintenance Charge in connection with a Principal
Prepayment, a discount rate specified in the related Mortgage Note used to
determine such Yield Maintenance Charge generally equal to the rate which, when
compounded monthly, is equal to the semi-annual yield calculated by the linear
interpolation of the yields, as reported in Federal Reserve Statistical Release
H.15--Selected Interest Rates under the heading "U.S. government
securities/Treasury constant maturities" for the week ending prior to the date
of the relevant principal prepayment, of U.S. Treasury securities with constant
maturities whose maturity dates (one longer and one shorter) most nearly
approximate the Maturity Date of such Mortgage Loan. If Release H.15 is no
longer published, the Servicer will select a comparable publication to determine
the Yield Rate.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS. Calculations
required to be made by the Paying Agent pursuant to this Agreement with respect
to any Mortgage Loan
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shall be made based upon current information as to the terms of the Mortgage
Loans and reports of payments received from the Servicer on such Mortgage Loans
and payments to be made to the Paying Agent as supplied to the Paying Agent by
the Servicer. The Paying Agent shall not be required to recompute, verify or
recalculate the information supplied to it by the Servicer and may conclusively
rely upon such information in making such calculations. If, however, a
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 penny.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholder Report, Special Servicer Remittance Date,
Servicer Remittance Date or Determination Date, such reference shall be to the
Collection Period, Interest Accrual Period, Record Date, Due Date, Report Date,
Special Servicer Remittance Date, Servicer Remittance Date or Determination
Date, as applicable, immediately preceding such Distribution Date.
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement, shall refer to this agreement as a
whole and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to
such term shall be equally applicable to both the singular and plural forms of
such term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its counsel.
Each party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
(f) The word "including" when used in this Agreement shall mean,
"including, without limitation."
SECTION 1.5 ARD LOANS. Notwithstanding any provision of this
Agreement;
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(a) For each ARD Loan, the Excess Interest accruing as a result
of the step-up in the Mortgage Rate upon failure of the related Mortgagor to pay
the principal on the Anticipated Repayment Date as specifically provided for in
the related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction Amount," "Assumed Scheduled Payment,"
"Mortgage Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust.
(c) Neither the Servicer nor the Special Servicer shall take any
enforcement action with respect to the payment of Excess Interest unless the
taking of such action is consistent with the Servicing Standard and all other
amounts due under such Mortgage Loan have been paid, and, in the good faith and
reasonable judgment of the Servicer and the Special Servicer, as the case may
be, the Liquidation Proceeds expected to be recovered in connection with such
enforcement action will cover the anticipated costs of such enforcement action
and, if applicable, any associated Excess Interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on
Additional Interest.
(e) With respect to such ARD Loan after its Anticipated Repayment
Date, the Servicer or the Special Servicer, as the case may be, shall be
permitted, in its discretion, to waive in accordance with Section 8.18 and
Section 9.5 hereof all or any accrued Excess Interest if, prior to the related
Maturity Date, the related Mortgagor has requested the right to prepay the
Mortgage Loan in full together with all payments required by the Mortgage Loan
in connection with such prepayment except for all or a portion of accrued Excess
Interest, provided that the Servicer's or the Special Servicer's determination
to waive the right to such accrued Excess Interest is in accordance with the
Servicing Standard and with Section 8.18 and Section 9.5 hereof. The Servicer or
the Special Servicer, as the case may be, will have no liability to the Trust,
the Certificateholders or any other person so long as such determination is
based on such criteria.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign to the Trustee, without recourse, 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 and (iv) all other assets included or to be included
in REMIC I for the benefit of REMIC II and REMIC III. 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
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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.
(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. None of the Trustee, the Fiscal Agent, the Paying Agent, any
Custodian, the Servicer or the Special Servicer shall be liable for any failure
by either Seller or the Depositor to comply with the document delivery
requirements of the Mortgage Loan Purchase Agreements and this Section 2.1(b).
(c) Each Seller under the applicable Mortgage Loan Purchase
Agreement shall, at its own expense, as to each Mortgage Loan, promptly (and in
any event within 45 days following the receipt thereof) cause to be submitted
for recording or filing, as the case may be, in the appropriate public office
for real property records or UCC financing statements, as appropriate, each
assignment to the Trustee referred to in clauses (iii), (v), (vii) and (xi) of
the definition of "Mortgage File." As provided in the applicable Mortgage Loan
Purchase Agreement, each such assignment shall reflect that it should be
returned by the public recording office to the Custodian (or the Trustee if
there is no Custodian) on behalf of the Certificateholders following recording
or filing; provided that in those instances where the public recording office
retains the original assignment of Mortgage or assignment of Assignment of
Leases the applicable Seller shall obtain therefrom at its own expense a
certified copy of the recorded original. As provided in the applicable Mortgage
Loan Purchase Agreement, the applicable Seller shall forward copies thereof to
the Trustee, the Servicer and the Special Servicer. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Servicer shall direct each Seller pursuant to
the applicable Mortgage Loan Purchase Agreement promptly to prepare or cause to
be prepared a substitute therefor or cure such defect, as the case may be, and
thereafter the Servicer shall upon receipt thereof cause the same to be duly
recorded or filed, as appropriate.
(d) All relevant servicing documents and records in the
possession of the Depositor or the Sellers that relate to the Mortgage Loans and
that are not required to be a part of a Mortgage File in accordance with the
definition thereof shall be delivered to the Servicer or Custodian on or before
the Closing Date and shall be held by the Servicer or Custodian (or the Trustee
if there is no Custodian), as the case may be, in trust for the benefit of the
Certificateholders. The Depositor shall deliver or cause the related Seller to
deliver to the Special Servicer a copy of each Mortgage File to the extent that
(i) such copy has not previously been delivered to the Special Servicer and (ii)
the Special Servicer requests (in writing) such copy within 180 days following
the Closing Date. The Depositor shall deliver or cause the related Seller to
deliver such copy within a reasonable period following such request by the
Special Servicer.
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(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Custodian (or, if there
is no Custodian, the Trustee) on or before the Closing Date a copy of a fully
executed counterpart of each Mortgage Loan Purchase Agreement, as in full force
and effect on the Closing Date, which Mortgage Loan Purchase Agreements shall
contain the representations and warranties made by the Sellers with respect to
each related Mortgage Loan as of the Closing Date as are set forth on Exhibits
R-1 and R-2 hereto.
(f) Concurrently herewith, the Depositor has acquired the BSF
Loans from BSF and the Wells Fargo Loans from Wells Fargo. The Depositor has
directed Wells 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 Wells Fargo Loans to the Custodian,
with the Trustee, on behalf of the Certificateholders, inserted in the
endorsement in blank executed by Wells 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, 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. To avoid the
unnecessary expense and administrative inconvenience associated with the
execution and recording of multiple assignment documents, Wells Fargo 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 Wells Fargo Loans shall be deemed to have been
transferred from Wells Fargo to the Depositor, the BSF Loans shall be deemed to
have been transferred from BSF to the Depositor, and all Mortgage Loans shall be
deemed to have been transferred from the Depositor to the Trustee on behalf of
the Certificateholders.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee or the Custodian
on the Trustee's behalf, will hold (i) the documents constituting a part of the
Mortgage Files delivered to it, (ii) the REMIC I Regular Interests and (iii) the
REMIC II Regular Interests, in each case, in trust for the use and benefit of
all present and future Certificateholders.
Upon execution and delivery of this Agreement in respect of the
Initial Certification, and within 75 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 shall deliver to the
Depositor, the Servicer and the Special Servicer a certification (the "Initial
Certification" and the "Final Certification", respectively, in the respective
forms set forth as Exhibit B-1 and Exhibit B-2 hereto) (i) in the case of the
Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions to Mortgage
File delivery attached thereto, to the effect that: (A) all documents pursuant
to clause (i) of the definition of Mortgage File are in its possession, (B) such
document has been reviewed by it and has 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
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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 and each Seller (as to its respective Mortgage Loans only), a copy of
such Final Certification.
Within 360 days after the Cut-Off Date, the Custodian (or the
Trustee if there is no Custodian) shall provide a confirmation of receipt of
recorded assignments of Mortgage to the Servicer, the Special Servicer and each
Seller, and if any recorded assignment of Mortgage has not been received by the
Custodian (or the Trustee if there is no Custodian) on the Certificateholders'
behalf, by such time, the Custodian (or, if there is no Custodian, the Trustee)
shall provide information in such confirmation on the status of missing
assignments. In giving the certifications required above, the Custodian (or, if
there is no Custodian, the Trustee) shall be under no obligation or duty to
inspect, review or examine any such documents, instruments, securities or other
papers to determine whether they or the signatures thereon are valid, legal,
genuine, enforceable, in recordable form or appropriate for their represented
purposes, or that they are other than what they purport to be on their face, or
to determine whether any Mortgage File should include any assumption agreement,
modification agreement, consolidation agreement, extension agreement, Assignment
of Lease, Security Agreement, Subordination Agreement, environmental report,
environmental indemnification agreement, ground lease, UCC 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) in
the second preceding paragraph, the Custodian (or the Trustee if there is no
Custodian) shall promptly notify the applicable Seller, the Servicer, the
Special Servicer, the Trustee, the Operating Advisor, and the Depositor in
writing and the Servicer shall, and the Special Servicer may, request such
Seller to correct or cure such defect in the manner and within the period or
periods set forth in the applicable Mortgage Loan Purchase Agreement and absent
such correction or cure, and, in the case of a defect which results from a
failure to meet one or more requirements of clauses (A) through (C) in the
preceding paragraph, such defect materially and adversely affects the value of
the related Mortgage Loan or the interest of the Trustee in the related Mortgage
Loan (in the good faith judgment of the Servicer or the Trustee), or in any
event in the case of a defect under (D), the Trustee shall, and the Special
Servicer may, request the applicable Seller to either (i) substitute for the
related
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Mortgage Loan, without recourse, a Qualifying Substitute Mortgage Loan or Loans,
which substitution shall be accomplished in the manner and subject to the
conditions set forth in Section 2.3; or (ii) purchase such Mortgage Loan from
the Trust at the Purchase Price therefor in accordance with the related Mortgage
Loan Purchase Agreement. Although the Seller shall be required to perform the
action described in either clause (i) or clause (ii) of the preceding sentence,
the Seller shall have the right in its sole discretion to elect which of such
actions it will take in complying with such request. The Purchase Price for any
such Mortgage Loan shall be paid to the Servicer and deposited by the Servicer
in the Certificate Account. Upon receipt by the Custodian (or the Trustee if
there is no Custodian) of written notification of deposit of the Purchase Price
or other amount required of the applicable Seller, signed by a Servicing Officer
of the Servicer (which notification shall include a statement as to the accuracy
of the calculation of the Purchase Price or other required deposit), the
Custodian (or the Trustee if there is no Custodian) shall release the related
Trustee Mortgage File to the applicable Seller and the Trustee and the Depositor
shall execute and deliver such instruments of transfer or assignment in the
forms presented to it, in each case without recourse, representation or warranty
as shall be necessary to vest in such Seller, or its designee, title (to the
extent that such title was transferred to the Depositor or the Trustee) to any
Mortgage Loan released pursuant hereto.
The Custodian (or the Trustee or any of its authorized agents if
there is no Custodian), shall retain possession and custody of each Trustee
Mortgage File in accordance with and subject to the terms and conditions set
forth herein.
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR DOCUMENT
DEFECTS AND BREACHES OF REPRESENTATIONS AND WARRANTIES.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgage
Properties as set forth in the related Mortgage Loan Purchase Agreements, and in
either case such defect (a "Document Defect") or breach (a "Breach") materially
and adversely affects the interests of the holders of the Certificates, such
party shall give prompt written notice to the other parties hereto and to each
Rating Agency. Promptly upon becoming aware of any such Document Defect or
Breach, the Servicer shall, and the Special Servicer may, request that the
related Seller, not later than 90 days from such Seller's receipt of the notice
of such Document Defect or Breach, cure such Document Defect or Breach, as the
case may be, in all material respects; provided, however, that if such Document
Defect or Breach, as the case may be, cannot be corrected or cured in all
material respects within such 90-day period, but the related Seller is
diligently attempting to effect such correction or cure, as certified by such
Seller in an Officer's Certificate delivered to the Trustee, then the cure
period will be extended for an additional 90 days.
If any such Document Defect or Breach cannot be corrected or
cured in all material respects within the above cure periods, the related Seller
will be obligated, not later than the last day of such permitted cure period, 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
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the Code and Treasury Regulation Section 1.860G-2(f)), 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, replace such Mortgage Loan with a Qualifying Substitute
Mortgage Loan. If such Document Defect or Breach would cause the Mortgage Loan
to be other than a "qualified mortgage" (within the meaning of Section
860G(a)(3) of the Code), then notwithstanding the previous sentence, repurchase
must occur within 90 days from the date the Seller was notified of the defect
and substitution must occur within the sooner of (i) 90 days from the date the
Seller was notified of the defect or (ii) two years from the Closing Date.
Any of the following Document Defects shall be conclusively
presumed materially and adversely to affect the interests of Certificateholders
in, or the value of, a Mortgage Loan: (a) the absence from the Mortgage File of
the original signed Mortgage Note, unless the Mortgage File contains a signed
lost note affidavit and indemnity that appears to be regular on its face; (b)
the absence from the Mortgage File of the original signed Mortgage that appears
to be regular on its face, unless there is included in the Mortgage File a
certified copy of the Mortgage and the certificate states that the original
signed Mortgage was sent for recordation within the previous 180 days; or (c)
the absence from the Mortgage File of the item called for by paragraph (ix) of
the definition of Mortgage File. If any of the foregoing Document Defects is
discovered by the Custodian (or the Trustee if there is no Custodian), the
Trustee (or as set forth in Section 2.3(a), the Servicer) will take the steps
described elsewhere in this section, including the giving of notices to the
Rating Agencies and the parties hereto and making demand upon the related
Mortgage Loan Seller for the cure of the Document Defect or repurchase or
replacement of the related Mortgage Loan.
As to any Qualifying Substitute Mortgage Loan or Loans, the
Servicer shall cause the related Seller to deliver to the Custodian (or the
Trustee if there is no Custodian) for such Qualifying Substitute Mortgage Loan
or Loans, the Mortgage Note, the Mortgage, the related assignment of the
Mortgage, and such other documents and agreements as are required by Section
2.1, with the Mortgage Note endorsed as required by Section 2.1. No substitution
may be made in any calendar month after the Determination Date for such month.
Monthly payments due with respect to Qualifying Substitute Mortgage Loans in the
month of substitution shall not be part of the Trust and will be retained by
Servicer and remitted by the Servicer to the related Seller on the next
succeeding Distribution Date. For the month of substitution, distributions to
Certificateholders will include the Scheduled Payment due on the related Deleted
Mortgage Loan for such month and thereafter the related Seller shall be entitled
to retain all amounts received in respect of such Deleted Mortgage Loan.
The Servicer shall amend or cause to be amended the Mortgage Loan
Schedule to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Qualifying Substitute Mortgage Loan or Loans and upon such
amendment the Servicer shall deliver or cause to be delivered such amended
Mortgage Loan Schedule to the Trustee, the Custodian, the Paying Agent and the
Special Servicer. Upon such substitution, the Qualifying Substitute Mortgage
Loan or Loans shall be subject to the terms of this Agreement in all respects.
Upon receipt of the Trustee Mortgage File pertaining to any Qualifying
Substitute Mortgage Loans, the Custodian (or the Trustee if there is no
Custodian) shall release the Trustee Mortgage File relating to such Deleted
Mortgage Loan to the related Seller, and the Trustee (and the Depositor, if
necessary)
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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 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, 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
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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) Wells Fargo, as Seller under the Mortgage Loan
Purchase Agreement II, will be providing the remedies with respect to the Wells
Fargo Loans, and (ii) BSF, as Seller under the Mortgage Loan Purchase Agreement
I, will be providing the remedies with respect to the BSF Loans.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to the Servicer, the Special Servicer, the Trustee (in
its capacity as Trustee of the Trust), the Fiscal Agent and the Paying Agent as
of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its property, to
carry on its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of
this Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except such as has been
obtained, given, effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
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(e) There are no actions, suits or proceedings pending or, to the
best of the Depositor's knowledge, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Concurrently with the
execution and delivery of this Agreement, the Depositor does hereby transfer,
assign, set over, deposit with and otherwise convey to the Trustee, without
recourse, in trust, all the right, title and interest of the Depositor in and to
(i) the REMIC I Regular Interests in exchange for the REMIC II Interests and
(ii) the REMIC II Regular Interests in exchange for the REMIC III Certificates.
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-17 hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable judgment of the Trustee or the
Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be determined
by the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Certificates will be issuable in denominations of
$25,000 initial Certificate Balance and in any whole dollar denomination in
excess thereof. The Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class I, Class J, Class K, Class L and Class M Certificates will be issuable
in denominations of $100,000 initial Certificate Balance or in any
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whole dollar denomination in excess thereof. The Class X Certificates shall be
issuable in denominations of $1,000,000 initial Notional Amount or in any whole
dollar denomination in excess thereof. The Class R-I, Class R-II and Class R-III
Certificates will be issued in minimum Percentage Interests of 10% and integral
multiples of 10% in excess thereof.
(c) Each Certificate shall, on original issue, be authenticated
by the Authenticating Agent upon the order of the Depositor. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by an
authorized officer of the Authenticating Agent by manual signature, and such
certification upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication. At
any time and from time to time after the execution and delivery of this
Agreement, the Depositor may deliver Certificates to the Authenticating Agent
for authentication and the Authenticating Agent shall authenticate and deliver
such Certificates as in this Agreement provided and not otherwise. In the event
that additional Certificates need to be prepared at any time subsequent to the
Closing Date, the Depositor shall prepare, or cause to be prepared, deliver, or
cause to be delivered, at the Depositor's expense, any such additional
Certificates. With respect to the Class A, Class X, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class I, Class J, Class K, Class L and Class
M Certificates, on the Closing Date, the Authenticating Agent upon the order of
the Depositor shall authenticate Book-Entry Certificates that are issued to a
Clearing Agency or its nominee as provided in Section 3.7 against payment of the
purchase price thereof.
SECTION 3.2 REGISTRATION. The Paying Agent shall be the initial
Certificate Registrar in respect of the Certificates and the Certificate
Registrar shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Certificate Registrar may resign
or be discharged or removed by the Trustee or the Certificateholders, and a new
successor may be appointed, in accordance with the procedures and requirements
set forth in Sections 7.6 and 7.7 hereof with respect to the resignation,
discharge or removal of the Trustee and the appointment of a successor Trustee.
The Certificate Registrar may appoint, by a written instrument delivered to the
Holders and the Trustee, any trust company to act as co-registrar under such
conditions as the Certificate Registrar may prescribe; provided that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the offices of the
Certificate Registrar (which shall be located, as of the Closing Date, at
Norwest Center, Sixth and Marquette, Minneapolis, Minnesota 55479-0113), duly
endorsed or accompanied by a written instrument of transfer duly executed by
such Holder or such Holder's duly authorized attorney in such form as shall be
satisfactory to the Certificate Registrar. Upon the transfer of any Certificate
in accordance with the preceding sentence, and subject to the restrictions set
forth in the other subsections of this Section 3.3, the Certificate Registrar
shall execute, and the Authenticating Agent shall authenticate and deliver to
the transferee, one or more new Certificates of the same Class and evidencing,
in the aggregate,
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the same aggregate initial Certificate Balance, initial Notional Amount or
Percentage Interest, as the case may be, as the Certificate being transferred.
No service charge shall be made to a Certificateholder for any registration of
transfer of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration or transfer of Certificates. The Certificate
Registrar may decline to accept any request for a registration of transfer of
any Certificate during the period beginning five calendar days prior to any
Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of 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
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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 as Exhibit D-3B
hereto, or (ii) an Opinion of Counsel to the effect that such transfer may be
made without registration under the Securities Act. If a holder of a Definitive
Certificate proposes to transfer such Certificate to a person who wishes to take
delivery thereof in book-entry form, the Certificate Registrar will register
such transfer (and appropriately instruct the Depository) only upon delivery of
the documentation described in the second sentence of this paragraph.
Unless the Certificate Registrar is notified by the Depository
that in accordance with applicable law and the rules and procedures of, or
applicable to, the Depository (the "Depository Rules"), transfers of a
beneficial interest in a 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 or other
retirement arrangement, including individual retirement accounts and annuities,
Keogh plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including, without limitation,
insurance company general accounts, that is subject to ERISA or Section 4975 of
the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: (i) in the case of a
Subordinate Certificate that constitutes a Book-Entry Certificate, the purchase
and holding of such Certificate or interest therein qualifies for the exemptive
relief available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a Subordinate
or Residual Certificate held as a Definitive Certificate, the prospective
Transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel which establish to the satisfaction of the Certificate
Registrar that such transfer will not constitute or result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or
subject the Depositor, the Trustee, the Fiscal Agent, the Servicer, the Special
Servicer or the Certificate Registrar to any obligation in addition to those
undertaken in this Agreement. Each Person who acquires any Subordinate or
Residual Certificate or interest therein (unless it shall have acquired such
Certificate or interest therein from the Depositor or an Affiliate thereof or
unless it shall have delivered to the Certificate Registrar the certification of
facts and Opinion of
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Counsel referred to in clause (ii) of the preceding sentence) shall be required
to deliver to the Certificate Registrar (or, in the case of an interest in a
Subordinate Certificate that constitutes a Book-Entry Certificate, to the
Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor 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; or (ii) that
the purchase and holding of such Certificate or interest therein by such person
qualifies for the exemptive relief available under Sections I and III of PTCE
95-60.
(e) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Paying Agent under
clause (ii)(F) below to deliver payments to a Person other than such Person and
to have irrevocably authorized the Certificate Registrar under clause (ii)(G)
below to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. The rights of such person acquiring any Ownership Interest in a
Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and a United States Person and shall promptly notify
the Certificate Registrar of any change or impending change in
its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Certificate
Registrar shall require delivery to it, and no Transfer of any
Residual Certificate shall be registered until the Certificate
Registrar receives, an affidavit and agreement substantially in
the form attached hereto as Exhibit E-1 (a "Transfer Affidavit
and Agreement") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership
Interest in the Residual Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for any Person
that is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Residual Certificate, it will
endeavor to remain a Permitted Transferee, that it is a United
States Person, and that it has reviewed the provisions of this
Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee under clause (B)
above, if the Certificate Registrar has actual knowledge that the
proposed Transferee is not a Permitted Transferee or is not a
United States Person, no Transfer of an Ownership Interest in a
Residual Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee
to whom such Person attempts to transfer its Ownership Interest
in such Residual Certificate and (2) not to transfer its
Ownership Interest in such Residual Certificate unless it
provides to the
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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 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.
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The Servicer, on behalf of the Paying Agent, shall make available, upon written
request from the Paying Agent, to the Internal Revenue Service and those Persons
specified by the REMIC Provisions, all information necessary to compute any tax
imposed (A) as a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is not a Permitted Transferee, including the
information described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is not a Permitted Transferee. The Person holding such Ownership Interest
shall be responsible for the reasonable compensation of the Servicer and the
Paying Agent for providing such information.
The provisions of this Section 3.3(e) set forth prior to this subsection (iv)
may be modified, added to or eliminated, provided that there shall have been
delivered to the Trustee, the Certificate Registrar, the Servicer and the
Depositor the following:
(A) written notification from each Rating Agency to
the effect that the modification of, addition to or elimination
of such provisions will not cause such Rating Agency to qualify,
downgrade or withdraw its then current rating of any Class of
Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, the Certificate Registrar and the
Depositor, to the effect that such modification of, addition to
or elimination of such provisions will not cause any of REMIC I,
REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y)
be subject to an entity-level tax caused by the Transfer of any
Residual Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the 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
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applicable restrictions, provided that the Certificate Registrar has satisfied
its duties expressly set forth in Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall
be physically cancelled by the Certificate Registrar, and the Certificate
Registrar shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide notice to the
Trustee, the Servicer, the Special Servicer and the Depositor of each transfer
of a Certificate and, upon written request, provide each such Person with an
updated copy of the Certificate Register within a reasonable period of time
following receipt of such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If
(A) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (B) except in the case of a
mutilated Certificate so surrendered, there is delivered to the Certificate
Registrar such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and interest in the Trust.
In connection with the issuance of any new Certificate under this Section 3.4,
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Servicer, the Special Servicer,
the Fiscal Agent, the Trustee, the Operating Adviser, the Paying Agent and any
agent of the Servicer, the Special Servicer, the Fiscal Agent, the Trustee, the
Paying Agent or the Operating Adviser may treat the Person in whose name any
Certificate is registered as of the related Record Date as the owner of such
Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither the Servicer, the
Special Servicer, the Fiscal Agent, the Trustee, the Paying Agent, the Operating
Adviser nor any agent of the Servicer, the Special
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Servicer, the Fiscal Agent, the Trustee, the Paying Agent or the Operating
Adviser shall be affected by any notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, the Servicer, the Special
Servicer, the Operating Adviser, the Paying Agent or the Depositor (A) request
in writing from the Certificate Registrar a list of the names and addresses of
Certificateholders and (B) in the case of a request by Certificateholders, state
that such Certificateholders desire to communicate with other Certificateholders
with respect to their rights under this Agreement or under the Certificates,
then the Certificate Registrar shall, within ten Business Days after the receipt
of such request, afford such Certificateholders, the Servicer, the Special
Servicer, the Depositor, the Paying Agent or the Operating Adviser, as
applicable, access during normal business hours to a current list of the
Certificateholders. The expense of providing any such information requested by
such Person shall be borne by the party requesting such information and shall
not be borne by the Certificate Registrar or the Trustee. Every
Certificateholder, by receiving and holding a Certificate, agrees that the
Certificate Registrar and the Trustee shall not be held accountable by reason of
the disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) Notwithstanding the foregoing, the Class A-1, Class A-2,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class I,
Class J, Class K, Class L and Class M Certificates, upon original issuance, each
shall be issued in the form of one or more Certificates representing the
Book-Entry Certificates, to be delivered to the Certificate Registrar, as
custodian for The Depository Trust Company (the "Depository"), the initial
Clearing Agency, by, or on behalf of, the Depositor; provided that, if any Class
G, Class H, Class I, Class J, Class K, Class L or Class M is no longer accepted
for trading through the PORTAL System, and therefore is no longer accepted for
settlement through the Depository, such Certificates shall thereafter be issued
and held in definitive form, substantially in the forms and with such applicable
legends as are set forth in the Exhibits hereto corresponding to such Class. The
Class R-I, Class R-II and Class R-III Certificates will each be issuable in one
or more registered, definitive physical certificates. The Certificates shall
initially be registered on the Certificate Register in the name of Cede & Co.,
the nominee of the Depository, as the initial Clearing Agency, and no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in the Certificates, except as provided in Section
3.9. 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;
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(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 Certificates are issued
pursuant to Section 3.9, the initial Clearing Agency will make book-entry
transfers among the Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or consent may be given by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal amount of Certificates. The Clearing Agency
may take conflicting actions with respect to the Certificates to the extent that
such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or to Institutional
Accredited Investors shall be represented by the Rule 144A-IAI Global
Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. The Certificates evidenced by any Rule
144A-IAI Global Certificate shall be 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 CEDEL; 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 CEDEL (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
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that has previously delivered a Regulation S Certificate to Euroclear or CEDEL
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 CEDEL, as applicable, thereof). Euroclear or CEDEL, as
applicable, shall be required to promptly deliver to the Certificate Registrar a
certificate substantially in the form of Exhibit I hereto to the effect that it
has received the requisite Regulation S Certificates for each such Class, and no
Certificate Owner (or transferee from any such Certificate Owner) shall be
entitled to receive an interest in the Regulation S Permanent Global Certificate
for such Class or any payment or principal or interest with respect to its
interest in such Regulation S Temporary Global Certificate prior to the
Certificate Registrar receiving such certification from Euroclear or CEDEL 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, 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 CEDEL).
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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 CEDEL, 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 CEDEL, 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 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
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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 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
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conclusive and binding on the Trustee, the Fiscal Agent and the
Certificateholders. The Special Servicer shall not be required to make P&I
Advances under this Agreement.
(b) If the Servicer determines that there is a P&I Advance Amount
for a Distribution Date, the Servicer shall on the Servicer Remittance Date
either (A) deposit in the Certificate Account an amount equal to the P&I Advance
Amount or (B) utilize funds in the Certificate Account being held for future
distributions or withdrawals to make such Advance. Any funds being held in the
Certificate Account for future distribution or withdrawal and so used shall be
replaced by the Servicer from its own funds by deposit in the Certificate
Account on or before any future Servicer Remittance Date to the extent that
funds in the Certificate Account on such Servicer Remittance Date shall be less
than payments to the Trustee or other Persons required to be made on such date.
SECTION 4.2 SERVICING ADVANCES. The Servicer and, if the Servicer
does not, the Trustee to the extent the Trustee receives notice from the Paying
Agent that such advance has not been made by the Servicer, and if the Trustee
does not, the Fiscal Agent shall make Servicing Advances to the extent provided
in this Agreement, except to the extent that the Servicer, the Trustee or the
Fiscal Agent, as applicable, determines in accordance with Section 4.4 below,
that any such Advance would be a Nonrecoverable Advance. Such determination by
the Servicer shall be conclusive and binding on the Trustee, the Fiscal Agent
and the Certificateholders. The Special Servicer shall not be required to make
Servicing Advances under this Agreement. Promptly after discovering that the
Servicer has failed to make a Servicing Advance, the Paying Agent shall notify
the Trustee in writing of the failure by the Servicer to make such Servicing
Advance.
SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT.
(a) To the extent that the Servicer fails to make a P&I Advance
by the Servicer Remittance Date (other than a P&I Advance that the Servicer
determines is a Nonrecoverable Advance), the Trustee shall make such P&I Advance
to the extent the Trustee receives written notice from the Paying Agent not
later than 10:00 a.m. (New York City time) on the Distribution Date that such
advance has not been made by the Servicer on the Servicer Remittance Date unless
the Trustee determines that such P&I Advance, if made, would be a Nonrecoverable
Advance. To the extent that the Trustee is required hereunder to make P&I
Advances, it shall deposit the amount thereof in the Distribution Account by
1:00 p.m. (New York City time) on such Distribution Date. The Paying Agent shall
notify the Trustee as soon as practicable, but not later than 10:00 a.m. (New
York City time) on the Distribution Date if the Servicer has failed to make a
P&I Advance.
(b) To the extent that the Trustee fails to make a P&I Advance
required to be made by the Trustee hereunder on the Distribution Date (other
than a P&I Advance that the Servicer or the Trustee determines is a
Nonrecoverable Advance), the Fiscal Agent will advance such P&I Advance unless
the Fiscal Agent determines that any such P&I Advance, if made, would be a
Nonrecoverable Advance. To the extent that the Fiscal Agent is required
hereunder to make P&I Advances, it shall deposit the amount thereof in the
Distribution Account by 1:00 p.m. (New York City time) on each such Distribution
Date.
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(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. If the Servicer
determines at any time, in its sole discretion, exercised in good faith, that
any Advance previously made or proposed Advance, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate delivered to the Trustee and the Paying Agent, and the Special
Servicer by the Business Day prior to the Distribution Date. Such Officer's
Certificates shall set forth the reasons for such determination of
nonrecoverability, together with, to the extent such information, report or
document is in the Servicer's possession, any related financial information such
as related income and expense statements, rent rolls, occupancy status, property
inspections and any appraisals performed in accordance with MAI standards within
the last 12 months on the Mortgaged Property, and, if such reports are used by
the Servicer to determine that any P&I Advance or Servicing Advance, as
applicable, would be a Nonrecoverable Advance, any engineers' reports,
environmental surveys, internal final valuations or other information relevant
thereto which support such determination. If the Trustee or the Fiscal Agent, as
applicable, determines at any time that any portion of an Advance previously
made or a portion of a proposed Advance that the Trustee or the Fiscal Agent, as
applicable, is required to make pursuant to this Agreement, if made, would
constitute a Nonrecoverable Advance, such determination shall be evidenced by an
Officer's Certificate of a Responsible Officer of the Trustee or the Fiscal
Agent, as applicable, delivered to the Depositor, the Servicer, the Paying Agent
and the Special Servicer similar to the Officer's Certificate of the Servicer
described in the prior sentence. The Trustee and the Fiscal Agent shall not be
required to make an Advance that the Servicer has previously determined to be a
Nonrecoverable Advance. Notwithstanding any other provision of this Agreement,
none of the Servicer, the Trustee or the Fiscal Agent shall be obligated to, nor
shall it, make any Advance or make any payment that is designated in this
Agreement to be an Advance, if it determines in its good faith judgment that
such Advance or such payment (including interest accrued thereon at the Advance
Rate) would be a Nonrecoverable Advance. The Servicer's determination in
accordance with the above provisions shall be conclusive and binding on the
Trustee, the Fiscal Agent and the Certificateholders.
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SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING
ADVANCES WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from
the Servicer's, the Trustee's or the Fiscal Agent's own funds shall accrue
interest on a daily basis, at a per annum rate equal to the Advance Rate, from
the date such Advance was made until the date on which such Advance has been
reimbursed. For purposes of determining whether a P&I Advance is outstanding,
amounts collected with respect to a particular Mortgage Loan or REO Property and
treated as collections of principal or interest shall be applied first to
reimburse the earliest P&I Advance and then each succeeding P&I Advance to the
extent not inconsistent with Section 4.6. Except with respect to Specially
Serviced Mortgage Loans, the Servicer shall attempt to collect (but shall have
no obligation to collect) Late Fees in an amount sufficient to pay Advance
Interest from the Mortgagor. The Servicer shall be entitled to retain Late Fees
paid by any Mortgagor with respect to any Mortgage Loan (other than a Specially
Serviced Mortgage Loan, as to which the Special Servicer shall retain Late Fees)
as additional servicing compensation to the extent such Late Fees exceed Advance
Interest. The Special Servicer, with respect to any Specially Serviced Mortgage
Loan, shall (i) pay from any related Late Fees outstanding and unpaid Advance
Interest to the Servicer, the Trustee or the Fiscal Agent, as applicable, and
(ii) retain any remaining portion of such Late Fees as additional Special
Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan or Specially
Serviced Mortgage Loan or REO Property (including Advances later determined to
be Nonrecoverable Advances) shall be reimbursed to the extent of the amounts
identified to be applied therefor in Section 5.2. The aggregate of the amounts
available to repay Advances pursuant to Sections 5.2 collected in any Collection
Period with respect to Mortgage Loans or Specially Serviced Mortgage Loans or
REO Property shall be an "Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on Mortgage Loans,
Specially Serviced Mortgage Loans or REO Property, the Available Advance
Reimbursement Amount with respect to any Determination Date shall be applied to
reimburse (i) the Fiscal Agent for any Advances outstanding to the Fiscal Agent
with respect to any of such Mortgage Loans or Specially Serviced Mortgage Loans
or REO Property, plus any Advance Interest owed to the Fiscal Agent with respect
to such Advances and then (ii) the Trustee for any Advances outstanding to the
Trustee with respect to any of such Mortgage Loans or Specially Serviced
Mortgage Loans or REO Property, plus any Advance Interest owed to the Trustee
with respect to such Advances and then (iii) the Servicer for any Advances
outstanding to the Servicer with respect to any of such Mortgage Loans, plus any
Advance Interest owed to the Servicer with respect to such Advances. To the
extent that any Advance Interest payable to the Servicer, the Trustee or the
Fiscal Agent with respect to a Specially Serviced Mortgage Loan or REO Property
cannot be recovered from the related Mortgagor, the amount of such Advance
Interest shall be treated as a Servicing Advance and shall be payable to the
Fiscal Agent, the Trustee or the Servicer, as the case may be, from amounts on
deposit in the Certificate Account or the Distribution Account pursuant to
Section 5.2(a) or Section 5.3(b)(ii). The Servicer's, the Fiscal Agent's and the
Trustee's right of reimbursement under this Agreement for Advances shall be
prior to the rights of the Certificateholders to receive any amounts recovered
with respect to such Mortgage Loans or REO Properties.
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(c) Amounts applied to reimburse Advances shall first be applied
to reduce Advance Interest thereon and then to reduce the outstanding amount of
such Advances.
(d) To the extent that the Special Servicer incurs out-of-pocket
expenses, in accordance with the Servicing Standard, in connection with
servicing Specially Serviced Mortgage Loans, the Servicer shall reimburse the
Special Servicer for such expenditures within 30 days after receiving an invoice
and a report from the Special Servicer, subject to Section 4.4. With respect to
each Collection Period, the Special Servicer shall deliver such invoice and
report to the Servicer by the following Determination Date. All such amounts
reimbursed by the Servicer shall be a Servicing Advance. In the event that the
Servicer defaults under its obligation to reimburse the Special Servicer
hereunder or the Servicer determines that such Servicing Advance, if made, would
be a Nonrecoverable Advance, the Special Servicer shall notify the Servicer and
the Paying Agent in writing of such nonpayment and the amount payable to the
Special Servicer and shall be entitled to receive reimbursement from the Trust
as an Additional Trust Expense. The Servicer, the Paying Agent and the Trustee
shall have no obligation to verify the amount payable to the Special Servicer
pursuant to this Section 4.6(d) and circumstances surrounding the notice
delivered by the Special Servicer pursuant to this Section 4.6(d).
SECTION 4.7 FISCAL AGENT TERMINATION EVENT. "Fiscal Agent
Termination Event," wherever used herein, means any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the
Trustee when due any required Advances; or
(ii) A decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the Fiscal Agent and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(iii) The Fiscal Agent shall consent to the appointment of
a conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent or
relating to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization
statute, make an assignment for the benefit of its creditors,
voluntarily suspend payment of its obligations, or take any corporate
action in furtherance of the foregoing; or
(v) Any Rating Agency shall indicate its intent to reduce,
qualify or withdraw, as applicable, the outstanding rating of any Class
of Certificates because the
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prospective financial condition or capacity to make Advances of the
Fiscal Agent is insufficient to maintain such rating; or
(vi) The long-term unsecured debt of the Fiscal Agent is
rated below "Aa2" by Moody's.
SECTION 4.8 PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of termination
given to the Fiscal Agent pursuant to Section 7.6(c), all authority, power and
rights of the Fiscal Agent under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall terminate and a successor Fiscal Agent, if
necessary, shall be appointed by the Trustee, with the consent of the Depositor;
provided that Rating Agency Confirmation is obtained with respect to the
appointment of such successor Fiscal Agent, and in no event shall the
termination of the Fiscal Agent be effective until Rating Agency Confirmation
shall have been obtained with respect to a successor fiscal agent. The Fiscal
Agent agrees to cooperate with the Trustee in effecting the termination of the
Fiscal Agent's responsibilities and rights hereunder as Fiscal Agent.
(b) Notwithstanding the termination of its activities as Fiscal
Agent, the terminated Fiscal Agent shall continue to be entitled to
reimbursement to the extent provided in Section 4.6 but only to the extent such
reimbursement relates to the period up to and including the date on which the
Fiscal Agent's termination is effective. The Fiscal Agent shall be reimbursed
for all amounts owed to it hereunder on or prior to the effective date of its
termination from amounts on deposit in the Certificate Account.
SECTION 4.9 MERGER OR CONSOLIDATION OF FISCAL AGENT. Any Person
into which the Fiscal Agent may be merged or consolidated, or any Person
resulting from any merger, conversion, other change in form or consolidation to
which the Fiscal Agent shall be a party, or any Person succeeding to the
business of the Fiscal Agent, shall be the successor of the Fiscal Agent
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided that (i) the successor to the Fiscal Agent or
resulting Person shall have a net worth of not less than $100,000,000, (ii) such
successor or resulting Person shall be satisfactory to the Trustee, (iii) such
successor or resulting Person shall execute and deliver to the Trustee an
agreement, in form and substance satisfactory to the Trustee, which contains an
assumption by such Person of the due and punctual performance and observance of
each covenant and condition to be performed or observed by the Fiscal Agent
under this Agreement from and after the date of such agreement, (iv) the Rating
Agencies shall be given prior written notice of the identity of the proposed
successor or resulting Person and the Rating Agencies shall have provided Rating
Agency Confirmation, and (v) the Fiscal Agent shall deliver to the Trustee an
Officer's Certificate and an Opinion of Counsel acceptable to the Trustee (which
opinion shall be at the expense of the Fiscal Agent) stating that all conditions
precedent to such action under this Section 4.9 have been completed and such
action is permitted by and complies with the terms of this Section 4.9.
SECTION 4.10 LIMITATION ON LIABILITY OF THE FISCAL AGENT AND
OTHERS. Neither the Fiscal Agent nor any of the directors, officers, employees,
agents or Controlling Persons of the Fiscal Agent shall be under any liability
to the Certificateholders, the Depositor or the
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Trustee for any action taken or for refraining from the taking of any action in
good faith, and using reasonable business judgment pursuant to this Agreement,
or for errors in judgment; provided that this provision shall not protect the
Fiscal Agent or any such Person against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of duties under this Agreement. The Fiscal Agent and any director,
officer, employee or agent of the Fiscal Agent may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Fiscal Agent shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its obligations under this Agreement. In such event, all legal
expenses and costs of such action shall be expenses and costs of the Trust, and
the Fiscal Agent shall be entitled to be reimbursed therefor as Servicing
Advances as provided by this Agreement. The provisions of this Section 4.10
shall survive the resignation or removal of the Fiscal Agent and the termination
of this Agreement.
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT. The Fiscal Agent
and each of its directors, officers, employees, agents and Controlling Persons
shall be indemnified by the Trust and held harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action relating to this Agreement other than any loss, liability or
expense incurred by reason of the Fiscal Agent's willful misfeasance, bad faith
or negligence in the performance of duties hereunder. The Depositor shall
indemnify and hold harmless the Fiscal Agent, its directors, officers,
employees, agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Fiscal Agent, its directors, officers, employees, agents or
Controlling Person may become subject under the 1933 Act, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Private Placement Memorandum or in the Preliminary Prospectus Supplement and
Final Prospectus Supplement or arises out of, or is based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made, not misleading and shall reimburse the Fiscal Agent, its
directors, officers, employees, agents or Controlling Person for any legal and
other expenses reasonably incurred by the Fiscal Agent or any such director,
officer, employee, agent or Controlling Person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action.
The Fiscal Agent shall immediately notify the Depositor, the Servicer, the
Paying Agent and the Trustee if a claim is made by a third party with respect to
this Section 4.11 entitling the Fiscal Agent, its directors, officers,
employees, agents or Controlling Person to indemnification hereunder, whereupon
the Depositor shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Fiscal Agent) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Depositor shall not affect any rights the
Fiscal Agent, its directors, officers, employees, agents or Controlling Person
may have to indemnification under this Section 4.11, unless the Depositor's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or removal of the Fiscal Agent.
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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 "Wells Fargo Bank, National Association, as Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Bear Stearns Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
1999-WF2" (the "Certificate Account"). On or prior to the Closing Date, the
Servicer shall open, or cause to be opened, and shall maintain, or cause to be
maintained an additional separate account or accounts in the name of "Wells
Fargo Bank, National Association, as Servicer for LaSalle Bank National
Association, as Trustee for the Holders of Bear Stearns Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-WF2"
(the "Interest Reserve Account").
(b) On or prior to the date the Servicer shall first deposit
funds in a Certificate Account or the Interest Reserve Account, as the case may
be, 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 and the Interest Reserve Account to hold such
account in the name of the Servicer as provided in Section 5.1(a), subject to
the Servicer's (or its Sub-Servicer's) right to direct payments and investments
and its rights of withdrawal under this Agreement.
(c) The Servicer shall deposit, or cause to be deposited, into
the Certificate Account on the Business Day following receipt (or, in the case
of unscheduled remittances of principal or interest, on the Business Day
following identification of the proper application of such amounts), the
following amounts received by it (including amounts remitted to the Servicer by
the Special Servicer from an REO Account pursuant to Section 9.14 or as
Compensating Interest pursuant to Section 9.11), other than in respect of
interest and principal on the Mortgage Loans due on or before the Cut-Off Date
which shall be remitted to the Depositor (provided that the Servicer may retain
amounts otherwise payable to the Servicer as provided in Section 5.2(a) rather
than deposit them into the Certificate Account):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled
Payments, and any Late Collections in respect thereof on the
Mortgage Loans;
(B) Interest: subject to subsection (d) hereof, all payments on
account of interest, including Compensating Interest paid by the
Special Servicer pursuant to Section 9.11, (minus any portion of
any such payment that is allocable to the period prior to the
Cut-Off Date which shall be remitted to the Depositor and
excluding Interest Reserve Amounts to be deposited in the
Interest Reserve Account pursuant to Section 5.1(d) below);
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(C) Liquidation Proceeds: all Liquidation Proceeds with respect
to the Mortgage Loans;
(D) Insurance Proceeds: all insurance proceeds other than
proceeds to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the
related Mortgagor in accordance with the Servicing Standard,
which proceeds shall be deposited by the Servicer into an Escrow
Account and not deposited in the Certificate Account;
(E) Condemnation Proceeds: all condemnation proceeds other than
proceeds to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the
related Mortgagor in accordance with the Servicing Standard,
which proceeds shall be deposited by the Servicer into an Escrow
Account and not deposited in the Certificate Account;
(F) REO Income: all REO Income received from the Special
Servicer;
(G) Investment Losses: any amounts required to be deposited by
the Servicer pursuant to Section 5.1(e) in connection with losses
realized on Eligible Investments with respect to funds held in
the Certificate Account;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account; and
(I) Other: all other amounts, including Prepayment Premiums and
Yield Maintenance Charges, required to deposited in the
Certificate Account pursuant to this Agreement, including
Purchase Proceeds of any Mortgage Loans repurchased by a Seller
or substitution shortfall amounts (as described in the fifth
paragraph of Section 2.3(a)) paid by a Seller in connection with
the substitution of any Qualifying Substitute Mortgage Loans.
Remittances from any REO Account to the Servicer for deposit in
the Certificate Account shall be made by the Special Servicer no later than the
Special Servicer Remittance Date.
(d) The Servicer, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year,
shall deposit in the Interest Reserve Account in respect of each Interest
Reserve Loan, an amount equal to one day's interest at the related REMIC I Net
Mortgage Rate on the Scheduled Principal Balance of such Mortgage Loan as of the
Due Date in the month in which such Distribution Date occurs, to the extent a
Scheduled Payment or P&I Advance is timely made in respect thereof for such Due
Date (all amounts so deposited in any consecutive January and February in
respect of each Interest Reserve Loan, the "Interest Reserve Amount").
(e) Funds in the Certificate Account and Interest Reserve Account
may be invested and, if invested, shall be invested by, and at the risk of, the
Servicer in Eligible Investments selected by the Servicer which shall mature,
unless payable on demand, not later than the Business Day immediately preceding
the next Servicer Remittance Date, and any such
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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 Stearns Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-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 or Interest Reserve Account, as the case may be, out of its own funds
immediately as realized. If the Servicer deposits in any Certificate Account or
Interest Reserve 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 Interest Reserve 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 and Interest Reserve Account an amount equal to all amounts
due under any such Eligible Investment (net of anticipated income or earnings
thereon that would have been payable to the Servicer as additional servicing
compensation) the Servicer shall have the sole right to enforce such payment or
performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the Servicer of amounts to be used for payment of Escrow Amounts
for the account of the Mortgagor. The Servicer shall deal with these amounts in
accordance with the Servicing Standard and the terms of the related Mortgage
Loans.
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT AND
INTEREST RESERVE ACCOUNT.
(a) The Servicer shall, from time to time, make withdrawals from
the Certificate Account and remit them by wire transfer on the related Servicer
Remittance Date in immediately available funds to the account specified in this
Section or otherwise (w) to such account as it shall determine from time to time
of amounts payable to the Servicer from the Certificate Account pursuant to
clauses (i), (ii), (iii), (iv), (vi), (viii) and (ix) below; (x) to the account
specified in writing by the Paying Agent and the Trustee, as applicable, from
time to time of amounts payable to the Paying Agent and the Trustee from the
Certificate Account pursuant to clauses (ii), (iii), (v), (vi), (xi), (xii) and
(xiii) below; and (y) to the Special Servicer from time to time of amounts
payable to the Special Servicer from such Certificate Account pursuant to
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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 (in
excess of Advance Interest) relating to Mortgage Loans which are
not Specially Serviced Mortgage Loans, Modification Fees relating
to Mortgage Loans which are not Specially Serviced Mortgage Loans
as provided in Section 8.18, 50% of any assumption fees payable
under Section 8.7(a), 100% of any extension fees payable under
Section 8.10 or other fees payable to the Servicer hereunder and
(B) directly to the Special Servicer, 50% of any assumption fees
as provided in Section 8.7(a), 100% of any assumption fees as
provided in Section 8.7(b), all assumption fees relating to
Specially Serviced Mortgage Loans and Late Fees (in excess of
Advance Interest which the Servicer shall retain), Modification
Fees and other fees collected on Specially Serviced Mortgage
Loans, in each case from funds paid by the applicable Mortgagor
to the extent provided for herein;
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): to apply, pursuant to Section 4.6, (x)
prior to a Final Recovery Determination or determination in
accordance with Section 4.4 that any Advance is a Nonrecoverable
Advance, payments made by the Mortgagor of the amounts to which a
Servicing Advance relates or from REO Income from the related REO
Property or from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or Purchase Proceeds or (y) after a Final
Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, any funds on deposit in the Certificate
Account (regardless of whether such amount was recovered from the
applicable Mortgage Loan or REO Property), to reimburse the
Fiscal Agent, the Trustee and itself, in that order, as provided
in, and subject to, Article IV hereof, for any Servicing Advances
(and Advance Interest thereon) made with respect to a Mortgage
Loan or REO Property and not previously reimbursed;
(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, 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
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Interest thereon) previously made by it with respect to the
related Mortgage Loan or REO Property and not previously
reimbursed;
(iv) Servicing Fee and Special Servicer Compensation: to pay to
itself the Servicing Fee (to the extent not previously retained
by the Servicer), to pay to the Special Servicer the Special
Servicing Fee, in each case, subject to reduction for any
Compensating Interest;
(v) Trustee Fee and Paying Agent Fee: to pay to the Distribution
Account for withdrawal by the Paying Agent the Trustee's Fee and
the Paying Agent Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses (at the
time set forth herein or in the definition thereof), the payment
of which is not more specifically provided for in this Agreement;
provided that the Depositor shall not be entitled to receive
reimbursement for performing its duties under this Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final Recovery
Determination to pay to the Special Servicer from the Certificate
Account, the amount certified by the Special Servicer equal to
the Liquidation Fee, to the extent provided in Section 9.11
hereof;
(viii) Investment Income: to pay to itself income and gain
realized on the investment of funds deposited in such Certificate
Account relating to the Trust;
(ix) Prepayment Interest Excesses: to pay to the Servicer the
amount of the aggregate Prepayment Interest Excesses relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans
(to the extent not offset by Prepayment Interest Shortfalls
relating to such Mortgage Loans); and to pay to the Special
Servicer the amount of the aggregate Prepayment Interest Excesses
relating to Specially Serviced Mortgage Loans which have received
voluntary Principal Prepayments (not from Liquidation Proceeds or
from modifications to Specially Serviced Mortgage Loans), to the
extent not offset by Prepayment Interest Shortfalls relating to
such Mortgage Loans;
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Account in error;
(xi) Distribution Account: to make payment on each Servicer
Remittance Date to the Distribution Account of the remaining
amounts in the Certificate Account (including any Excess
Interest) other than amounts held for payment in future periods
or pursuant to clauses (xii) and (xiii) below;
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(xii) Reserve Account: to make payment on each Servicer
Remittance Date to the Reserve Account, any Excess Liquidation
Proceeds; and
(xiii) Clear and Terminate: to clear and terminate the
Certificate Account pursuant to Section 8.29.
The Servicer shall keep and maintain a separate accounting for
each Mortgage Loan for the purpose of justifying any withdrawal from the
Certificate Account.
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Servicer Remittance Date, Prepayments
received after the related Collection Period, or other amounts not distributable
on the related Distribution Date, shall be held in the Certificate Account and
shall be distributed on the Servicer Remittance Date or Dates to which such
succeeding Collection Period or Periods relate.
(c) On each Servicer Remittance Date in March of every year
commencing in March 2000, the Servicer shall withdraw all amounts then in the
Interest Reserve Account and deposit such amounts into the to 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 Stearns
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2, Distribution Account" and (ii) an account (the
"Reserve Account") to be held in trust for the benefit of the holders of
interests in the Trust until disbursed pursuant to the terms of this Agreement,
titled: "LaSalle Bank National Association, as Trustee, in trust for the benefit
of the Holders of Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-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 made
by the Servicer, the Trustee and the Fiscal Agent and all Excess Liquidation
Proceeds. On any Servicer Remittance Date, the Servicer shall have no duty to
remit to the Distribution Account any amounts other than amounts held in the
Certificate Account and collected during the related Collection Period as
provided in clauses (v) and (xi) of Section 5.2 and the P&I Advance Amount, and,
on the Servicer Remittance Date occurring in March of any year, commencing in
March 2000, amounts held in the Interest Reserve Account. The Paying Agent shall
make withdrawals from the Distribution Account and the Reserve Account only for
the following purposes:
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(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) Based solely on (and to the extent of the information
contained in) the Servicer Remittance Report provided to the Paying Agent by the
Servicer (no later than the Report Date), on each Distribution Date, the Paying
Agent shall be required to provide or make available either electronically or by
first class mail (or such other medium as the Depositor shall reasonably
request, the incremental cost of which shall be paid in advance by the recipient
thereof), to each Certificateholder, the Trustee, the Rating Agencies, the
Servicer, the Special Servicer, each Placement Agent, each Underwriter, the
Depositor and anyone the Depositor, the Placement Agent or any Underwriter
reasonably designates (i) a Monthly Certificateholders Report (substantially in
the form of Exhibit M) and (ii) a report containing information regarding the
Mortgage Loans as of the end of the related Collection Period, which report
shall contain substantially the categories of information regarding the Mortgage
Loans set forth in Appendix I to the Prospectus Supplement and shall be
presented in tabular format substantially similar to the format utilized in such
Appendix I. 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 and the Paying Agent may
disclaim responsibility for any information distributed by the Paying Agent for
which it is not the original source.
Upon written request, the Paying Agent shall send the reports
described in the preceding paragraph to any Certificate Owner or
Certificateholder by first class mail at no cost to such Certificate Owner or
Certificateholder. In addition, the Paying Agent shall make the reports
described in the preceding paragraph available through its website, initially
located at www.ctslink.com/cmbs (the "Paying Agent's Website"), electronic
bulletin board and its fax-on demand service. The Paying Agent's electronic
bulletin board may be initially accessed by calling (301) 815-6620, and the
Paying Agent's fax-on-demand service may be initially accessed by calling (301)
815-6610. For assistance with the above-mentioned Paying Agent services,
Certificateholders or any party hereto may initially call (301) 815-6600. In
addition, the Paying Agent may also make Mortgage Loan information as presented
in the "CSSA" loan setup file format, the "CSSA" loan periodic update file
format, the Special Servicer Monthly Report and the Annual Report available each
month to any Certificateholder, any Certificate Owner, the Rating Agencies or
any other interested party via the Paying Agent's Website or, if requested by a
Certificateholder or Certificate Owner in writing, by first class mail. In
addition, the Paying Agent will make available, as a convenience for interested
parties (and not in the furtherance of
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the distribution of the Prospectus or the Final Prospectus Supplement under the
securities laws) this Agreement, the Prospectus and Final Prospectus Supplement
via the Paying Agent's Website. The Paying Agent shall not be deemed to have
made any representations or warranties as to the accuracy or completeness of
such documents and will assume no responsibility therefor. In addition, the
Paying Agent may disclaim responsibility for any information distributed by it
of which information the Paying Agent is not the original source. In connection
with providing access to the Paying Agent's Website or electronic bulletin
board, the Paying Agent may require registration and the acceptance of a
disclaimer. The Paying Agent shall not be liable for the dissemination of
information in accordance with this Agreement; provided that this sentence shall
not in any way limit the liability the Paying Agent may otherwise have in
performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if
required by federal regulation, of any Certificateholder that is a savings
association, bank, or insurance company, the Paying Agent shall provide (to the
extent in its possession) to each such Certificateholder such reports and access
to non-privileged information and documentation regarding the Mortgage Loans and
the Certificates as such Certificateholder may reasonably deem necessary to
comply with applicable regulations of the Office of Thrift Supervision or
successor or other regulatory authorities with respect to investment in the
Certificates; provided that the Paying Agent shall be entitled to be reimbursed
by such Certificateholder for the Paying Agent's actual expenses incurred in
providing such reports and access.
(c) Within a reasonable period of time after the end of each
calendar year, the Paying Agent shall send to each Person who at any time during
the calendar year was a Certificateholder of record, a report summarizing the
items (in clauses (i), (ii) and (iii) of the definition of Monthly
Certificateholders Report) provided to Certificateholders pursuant to this
Section 5.4 on an annual basis and such other customary information as the
Paying Agent deems may be necessary or desirable for such Holders to prepare
their federal income tax returns.
(d) On each Distribution Date, the Paying Agent shall provide to
the Placement Agents, the Underwriters, the Rating Agencies, the Depositor, the
Operating Adviser, the Servicer, the Special Servicer, the Trustee, the Fiscal
Agent, anyone the Depositor or either Placement Agent or Underwriter reasonably
designates, and upon request to any Certificateholder, Certificate Owner (as
identified by such Certificate Owner) or prospective Certificate Owner (as
identified to the Paying Agent by any existing Certificateholder or Certificate
Owner), a report substantially in the form of Exhibit Q (which may be delivered
in an electronic medium as the Paying Agent may determine from time to time)
with the information contained therein updated to the date of such report.
(e) The Paying Agent shall afford the Rating Agencies, the
Depositor, the Servicer, the Special Servicer, the Trustee, the Fiscal Agent,
the Operating Adviser, any Certificateholder, prospective Certificate Owner or
any Person reasonably designated by either 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.
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(f) 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,
either 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
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
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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.
(a) On each Distribution Date, the Paying Agent shall be deemed
to distribute to the Trustee, as holder of the REMIC I Regular Interests, for
the following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest collected or deemed collected on or with respect to
each Mortgage Loan or REO Property, Distributable Certificate Interest to each
Corresponding REMIC I Regular Interest and Excess Interest to the REMIC I Excess
Interests;
(ii) from the portion of the Available Distribution Amount
attributable to principal collected or deemed collected on or with respect to
each Mortgage Loan or REO Property, principal to the Corresponding REMIC I
Regular Interest, until the Certificate Balance thereof is reduced to zero;
(iii) any remaining funds, to reimburse any Realized
Losses previously allocated to the REMIC I Regular Interests, plus interest on
such Realized Losses previously allocated thereto, at the applicable
Pass-Through Rates; and
(iv) thereafter, to the Class R-I Certificateholders.
SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Paying Agent shall be deemed
to distribute to the Trustee, as holder of the REMIC II Regular Interests, for
the following purposes and in the following order of priority:
(i) an amount equal to Distributable Certificate Interest
for the Class A-1 Certificates, Class A-2 Certificates and Class X Certificates
to REMIC II Regular Interest A-1, REMIC II Regular Interest A-2, REMIC II
Regular Interest B, REMIC II Regular Interest C, REMIC II Regular Interest D,
REMIC II Regular Interest E, REMIC II Regular Interest F,
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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, 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 and (B) in the case of REMIC II Regular Interest B,
REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II
Regular Interest H, REMIC II Regular Interest I, REMIC II Regular Interest J,
REMIC II Regular Interest K, REMIC II Regular Interest L and REMIC II Regular
Interest M, the product of one-twelfth of the Certificate Balance of such
Interest and the related Class X Strip Rate (if any);
(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 J, REMIC II Regular Interest K, REMIC II Regular Interest L and REMIC
II Regular Interest M, pro rata on the basis of their respective entitlements to
reimbursement described in this clause (iv), to reimburse any Realized Losses
previously allocated to REMIC II Regular Interest A-1, REMIC II Regular Interest
A-2, REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest I,
REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L and REMIC II Regular Interest M as a result of the allocation of
Realized Losses to the Class X Certificates plus interest on such Realized
Losses at the applicable Pass-Through Rate;
(v) to the REMIC II Regular Interest B, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(vi) upon payment in full of the Certificate Balances of
the REMIC II Regular Interest A-2 and REMIC II Regular Interest A-2, to the
REMIC II Regular Interest B, the Principal Distribution Amount for such
Distribution Date (reduced by any portion thereof deemed to be distributed to
the REMIC II Regular Interest A-1 and REMIC II Regular Interest A-2), until the
Certificate Balance of the REMIC II Regular Interest B has been reduced to zero;
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(vii) to the REMIC II Regular Interest B, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses at the applicable Pass-Through Rate;
(viii) to the REMIC II Regular Interest C, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(ix) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest B, to the REMIC II Regular Interest C, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, and REMIC II Regular Interest B), until the Certificate
Balance of the REMIC II Regular Interest C has been reduced to zero;
(x) to the REMIC II Regular Interest C, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses at the applicable Pass-Through Rate;
(xi) to the REMIC II Regular Interest D, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest C, to the REMIC II Regular Interest D, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B and REMIC II Regular Interest
C), until the Certificate Balance of the REMIC II Regular Interest D has been
reduced to zero;
(xiii) to the REMIC II Regular Interest D, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the applicable Pass-Through Rate;
(xiv) to the REMIC II Regular Interest E, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xv) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest D, to the REMIC II Regular Interest E, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest C
and REMIC II Regular Interest D), until the Certificate Balance of the REMIC II
Regular Interest E has been reduced to zero;
(xvi) to the REMIC II Regular Interest E, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses at the applicable Pass-Through Rate;
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(xvii) to the REMIC II Regular Interest F, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(xviii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest E, to the REMIC II Regular Interest F, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D and REMIC II Regular Interest E), until the
Certificate Balance of the REMIC II Regular Interest F has been reduced to zero;
(xix) to the REMIC II Regular Interest F, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses at the applicable Pass-Through Rate;
(xx) to the REMIC II Regular Interest G, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxi) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest F, to the REMIC II Regular Interest G, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E and REMIC II Regular
Interest F), until the Certificate Balance of the REMIC II Regular Interest G
has been reduced to zero;
(xxii) to the REMIC II Regular Interest G, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the applicable Pass-Through Rate;
(xxiii) to the REMIC II Regular Interest H, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(xxiv) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest G, to the REMIC II Regular Interest H, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F and REMIC II Regular Interest G), until the Certificate Balance of
the REMIC II Regular Interest H has been reduced to zero;
(xxv) to the REMIC II Regular Interest H, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses at the applicable Pass-Through Rate;
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(xxvi) to the REMIC II Regular Interest I, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(xxvii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest H, to the REMIC II Regular Interest I, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G and REMIC II Regular Interest H), until
the Certificate Balance of the REMIC II Regular Interest I has been reduced to
zero;
(xxviii) to the REMIC II Regular Interest I, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the applicable Pass-Through Rate;
(xxix) to the REMIC II Regular Interest J, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(xxx) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest H, to the REMIC II Regular Interest J, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H and REMIC
II Regular Interest I), until the Certificate Balance of the REMIC II Regular
Interest J has been reduced to zero;
(xxxi) to the REMIC II Regular Interest J, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the applicable Pass-Through Rate;
(xxxii) to the REMIC II Regular Interest K, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(xxxiii) upon payment in full of the Certificate Balance
of the REMIC II Regular Interest J to the REMIC II Regular Interest K, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II
Regular Interest I and REMIC II Regular Interest J), until the Certificate
Balance of the REMIC II Regular Interest K has been reduced to zero;
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(xxxiv) to the REMIC II Regular Interest K, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the applicable Pass-Through Rate;
(xxxv) to the REMIC II Regular Interest L, the remainder
of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(xxxvi) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest K to the REMIC II Regular Interest L, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II
Regular Interest I, REMIC II Regular Interest J and REMIC II Regular Interest
K), until the Certificate Balance of the REMIC II Regular Interest L has been
reduced to zero;
(xxxvii) to the REMIC II Regular Interest L, to reimburse
any unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the applicable Pass-Through Rate;
(xxxviii) to the REMIC II Regular Interest M, the
remainder of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(xxxix) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest L to the REMIC II Regular Interest M, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1, REMIC II
Regular Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC II
Regular Interest I, REMIC II Regular Interest J, REMIC II Regular Interest K and
REMIC II Regular Interest L), until the Certificate Balance of the REMIC II
Regular Interest M has been reduced to zero;
(xl) to the REMIC II Regular Interest M, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on such
Realized Losses at the applicable Pass-Through Rate; and
(xli) thereafter, to the Class R-II Certificateholders.
(b) On each Distribution Date, the Paying Agent shall have deemed
to distribute to the REMIC II Excess Interests, any Excess Interest.
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
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such amount (other than the amount attributable to Excess Interest which shall
be distributed in accordance with Section 6.4(c)) in the following amounts and
order of priority:
(i) to the Holders of the Class A-1 Certificates, Class
A-2 Certificates and Class X Certificates, Distributable Certificate Interest
for such Distribution Date, pro rata in proportion to the Distributable
Certificate Interest payable to each such Class;
(ii) to the Holders of the Class A-1 Certificates, the
Principal Distribution Amount for such Distribution Date, until the Certificate
Balance of the Class A-1 Certificates has been reduced to zero;
(iii) upon payment in full of the Certificate Balance of
the Class A-1 Certificates, to the Holders of the Class A-2 Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A-1 Certificates), until the
Certificate Balance of the Class A-2 Certificates has been reduced to zero;
(iv) to the Holders of the Class A Certificates and Class
X Certificates, pro rata on the basis of their respective entitlements to
reimbursement described in this clause (iv), to reimburse any Realized Losses
previously allocated thereto plus interest on such Realized Losses at the
applicable Pass-Through Rate;
(v) to the Holders of the Class B Certificates,
Distributable Certificate Interest for such Distribution Date;
(vi) upon payment in full of the Certificate Balance of
the Class A-2 Certificates, to the Holders of the Class B Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A Certificates), until the
Certificate Balance of the Class B Certificates has been reduced to zero;
(vii) to the Holders of the Class B Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the applicable Pass-Through Rate;
(viii) to the Holders of the Class C Certificates,
Distributable Certificate Interest for such Distribution Date;
(ix) upon payment in full of the Certificate Balance of
the Class B Certificates, to the Holders of the Class C Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A and Class B Certificates),
until the Certificate Balance of the Class C Certificates has been reduced to
zero;
(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;
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(xi) to the Holders of the Class D Certificates,
Distributable Certificate Interest for such Distribution Date;
(xii) upon payment in full of the Certificate Balance of
the Class C Certificates, to the Holders of the Class D Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B and Class C
Certificates), until the Certificate Balance of the Class D Certificates has
been reduced to zero;
(xiii) to the Holders of the Class D Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the applicable Pass-Through Rate;
(xiv) to the Holders of the Class E Certificates,
Distributable Certificate Interest for such Distribution Date;
(xv) upon payment in full of the Certificate Balance of
the Class D Certificates, to the Holders of the Class E Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C and Class D
Certificates), until the Certificate Balance of the Class E Certificates has
been reduced to zero;
(xvi) to the Holders of the Class E Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the applicable Pass-Through Rate;
(xvii) to the Holders of the Class F Certificates,
Distributable Certificate Interest for such Distribution Date;
(xviii) upon payment in full of the Certificate Balance of
the Class E Certificates, to the Holders of the Class F Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C, Class D and
Class E Certificates), until the Certificate Balance of the Class F Certificates
has been reduced to zero;
(xix) to the Holders of the Class F Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the applicable Pass-Through Rate;
(xx) to the Holders of the Class G Certificates,
Distributable Certificate Interest for such Distribution Date;
(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 H 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;
(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
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such Distribution Date (reduced by any portion thereof distributed to the
Holders of the Class A, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class I and Class J Certificates), until the Certificate Balance of the
Class K Certificates has been reduced to zero;
(xxxiv) to the Holders of the Class K Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the Pass-Through Rate;
(xxxv) to the Holders of the Class L Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxvi) upon payment in full of the Certificate Balance of
the Class K Certificates, to the Holders of the Class L Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class I, Class J and Class K Certificates),
until the Certificate Balance of the Class L Certificates has been reduced to
zero;
(xxxvii) to the Holders of the Class L Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the Pass-Through Rate;
(xxxviii) to the Holders of the Class M Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxix) upon payment in full of the Certificate Balance of
the Class L Certificates, to the Holders of the Class M Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the Holders of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class I, Class J, Class K and Class L
Certificates), until the Certificate Balance of the Class M Certificates has
been reduced to zero;
(xl) to the Holders of the Class M Certificates, to
reimburse any Realized Losses previously allocated thereto, plus interest on
such Realized Losses at the Pass-Through Rate; and
(xli) to the Holders of the Class R-III Certificates at
such time as the Certificate Balances of all Classes of REMIC Regular
Certificates have been reduced to zero, and Realized Losses previously allocated
to each Holder have been reimbursed to the Holders of the REMIC Regular
Certificates, any amounts remaining on deposit in the Distribution Account.
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
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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 Certificate Balances, 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 Distribution Account any amounts constituting Excess Interest, and the
Paying Agent shall pay such Excess Interest on such Distribution Date to the
Class M Certificates (even if the Certificate Balance of the Class M
Certificates has been reduced to zero for any reason).
SECTION 6.5 ALLOCATION OF REALIZED LOSSES AND SHORTFALLS DUE TO
NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan
realized during the related Collection Period shall reduce the Certificate
Balance of the Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan shall
be allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interest; and to the extent that such Realized
Interest Loss exceeds such amount, shall be treated as an Expense Loss;
(iii) Expense Losses (not otherwise applied above)
realized during the related Collection Period shall be allocated among the REMIC
I Regular Interests in proportion to their Certificate Balances after making all
other allocations for such Distribution Date.
(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:
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(i) amounts previously advanced as interest on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I and
shall be allocated to reduce the amount of interest paid on each REMIC I Regular
Interest on such Distribution Date in proportion to Distributable Certificate
Interest otherwise payable thereon, and shall result in Unpaid Interest on each
such REMIC I Regular Interest;
(ii) amounts previously advanced as principal on the
related Mortgage Loan shall reduce the Available Distribution Amount for REMIC I
and shall be allocated to reduce the principal paid on each REMIC I Regular
Interest on which principal would otherwise be paid on such Distribution Date,
in proportion to such principal payments; and
(iii) amounts previously advanced as Servicing Advances,
as well as Advance Interest owing to the Servicer, the Trustee or the Fiscal
Agent with respect to Advances shall be treated as Expense Losses and allocated
in accordance with Section 6.5(a)(iii) above.
(c) At such time as a Final Recovery Determination is made with
respect to any Mortgage Loan with respect to which the Servicer previously had
withdrawn amounts from the Certificate Account following a determination that
Advances previously made were Nonrecoverable Advances, or at such other time as
a Realized Loss shall occur with respect to any such Mortgage Loan, the Servicer
shall compute the Realized Loss with respect to such Mortgage Loan and the
Paying Agent shall allocate such Realized Loss as follows:
(i) to the extent that any Realized Principal Loss does
not exceed the Certificate Balance on the Corresponding REMIC I Regular
Interest, such Realized Principal Loss shall be allocated to such REMIC I
Regular Interest; and to the extent that any Realized Principal Loss exceeds the
Certificate Balance of the Corresponding REMIC I Regular Interest, such Realized
Principal Loss shall be allocated to the other Corresponding REMIC I Regular
Interests with respect to which distributions of principal were reduced pursuant
to Section 6.5(b)(i) above, in proportion to the amount of such reductions;
(ii) any Realized Interest Loss shall be allocated to the
Corresponding REMIC I Interest to the extent of Unpaid Interest thereon and any
remaining portion of the Realized Interest Loss shall be allocated as a Realized
Interest Loss on each REMIC I Regular Interest with respect to which Unpaid
Interest was created pursuant to Section 6.5(b)(ii) above in proportion to the
amount of Unpaid Interest resulting from the reduction in distributions of
interest on such REMIC I Regular Interest pursuant to Section 6.5(b)(ii) above;
(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
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recoveries of interest on the Mortgage Loan shall be applied first, to make
payments of Unpaid Interest on the Corresponding REMIC I Regular Interest and
thereafter to make payments of interest on each REMIC I Interest with respect to
which Unpaid Interest was created pursuant to Section 6.5(b)(ii) above in
proportion to the amount of Unpaid Interest resulting from the reduction in
distributions of interest on such REMIC I Regular Interest pursuant to Section
6.5(b)(ii) above; and
(v) the portion of the amount recovered on the Mortgage
Loan with respect to which amounts were withdrawn from the Certificate Account
that is treated as a recovery of expenses on the Mortgage Loan shall be applied
in reimbursement of Expense Losses on each REMIC I Regular Interest with respect
to which an Expense Loss was created pursuant to Section 6.5(b)(iii) above in
proportion to the amount of the Expense Loss allocated thereto pursuant to
Section 6.5(b)(iii) above.
(d) REMIC II. On each Distribution Date, all Realized Losses
allocated to the REMIC I Interests for such Distribution Date (or for prior
Distribution Dates, to the extent not previously allocated) shall be allocated
to the Corresponding REMIC II Regular Interests in the amounts and in the manner
as will be allocated to the REMIC Regular Certificates relating thereto pursuant
to Section 6.5(e). Realized Losses allocated to the Class X Certificates shall
be allocated among REMIC II Regular Interest A-1, REMIC II Regular Interest A-2,
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest J,
REMIC II Regular Interest K, REMIC II Regular Interest L and REMIC II Regular
Interest M pro rata based on the product of the Certificate Balance of such
REMIC II Regular Interest and the Class X Strip Rate (if any) applicable to the
Class of Certificates relating to such REMIC II Regular Interest.
(e) REMIC III. On each Distribution Date, all Realized Losses on
the REMIC III Regular Interests that constitute Principal Losses for such
Distribution Date (or for prior Distribution Dates, to the extent not previously
allocated) shall be allocated to the REMIC Regular Certificates (other than the
Class X Certificates) in Reverse Sequential Order, with such reductions being
allocated among the Class A-1 Certificates and Class A-2 Certificates, pro rata,
in each case reducing the Certificate Balance of such Class until such
Certificate Balance is reduced to zero.
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; (B) Unpaid
Interest owing to such Class to the extent thereof; and (C) Distributable
Certificate Interest owing to such Class, provided, that Realized Losses and
Expense.
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Notwithstanding the foregoing, allocations of Realized Principal
Losses and Realized Interest Losses shall not reduce the aggregate Certificate
Balance of the REMIC Regular Certificates below the sum of the aggregate
Certificate Balances of the REMIC II Regular Interests.
SECTION 6.6 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS AND NET
AGGREGATE BALLOON INTEREST SHORTFALLS. On each Distribution Date, any Net
Aggregate Prepayment Interest Shortfalls and Net Aggregate Balloon Interest
Shortfalls in REMIC I, shall be allocated among the REMIC I Regular Interests,
pro rata in proportion to the Accrued Certificate Interest for each such REMIC I
Regular Interest for such Distribution Date and shall reduce Distributable
Certificate Interest for each such Interest. On each Distribution Date, any Net
Aggregate Prepayment Interest Shortfalls and Net Aggregate Balloon Interest
Shortfalls in REMIC II shall be allocated among the REMIC II Regular Interests,
pro rata in proportion to the Accrued Certificate Interest for each such REMIC
II Regular Interest for such Distribution Date and shall reduce Distributable
Certificate Interest for each such Interest. On each Distribution Date, the
amount of any Net Aggregate Prepayment Interest Shortfalls and Net Aggregate
Balloon Interest Shortfalls on the REMIC III Regular Interests in the aggregate
shall be allocated to each Class of Certificates, pro rata, in proportion to the
amount of Accrued Certificate Interest payable to such Class of Certificates on
such Distribution Date, in each case reducing interest otherwise payable
thereon. The amount of Net Aggregate Prepayment Interest Shortfalls and Net
Aggregate Balloon Interest Shortfalls allocated to a Class of Certificates
pursuant to the preceding sentence shall reduce the Distributable Certificate
Interest for such Class for such Distribution Date.
SECTION 6.7 ADJUSTMENT OF SERVICING FEES. The total Servicing Fee
and Special Servicing Fee payable to the Servicer and the Special Servicer,
respectively, shall be adjusted as provided in Section 8.10(c) and Section 9.11
herein. Any amount retained by REMIC I as a result of a reduction of the
Servicing Fee and the Special Servicing Fee shall be treated as interest
collected with respect to the prepaid Mortgage Loans with respect to which the
Servicing Fee or Special Servicing Fee adjustment occurs.
SECTION 6.8 APPRAISAL REDUCTIONS.
Not later than the date on which an Appraisal Event occurs, the
Special Servicer shall have obtained (A) an Appraisal of the Mortgaged Property
securing such Mortgage Loan, if such Principal Balance exceeds $1,000,000 or (B)
at the option of the Special Servicer, if such Principal Balance is less than or
equal to $1,000,000, 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 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
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conducted in accordance with the definition of "market value" as set forth in 12
C.F.R. ss. 225.65 and shall be updated at least annually to the extent such
Mortgage Loan remains a Required Appraisal Loan. The cost of any such Appraisal
or valuation, if not performed by the Special Servicer, shall be an expense of
the Trust and may be paid from REO Income, treated as an Additional Trust
Expense or, to the extent collections from such related Mortgage Loan does not
cover the expense, such unpaid expense shall be advanced by the Servicer in
which event it shall be treated as a Servicing Advance, subject to Section 4.4
hereof. The Servicer, based on the Appraisal or internal valuation provided to
it by the Special Servicer, shall calculate any Appraisal Reduction. The
Servicer shall calculate or recalculate the Appraisal Reduction for any Mortgage
Loan based on updated Appraisals or internal valuations provided from time to
time to it by the Special Servicer.
SECTION 6.9 COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
Notwithstanding any other provision of this Agreement to the contrary, the
Paying Agent shall comply with all federal withholding requirements with respect
to payments to Certificateholders of interest, original issue discount, or other
amounts that the Paying Agent reasonably believes are applicable under the Code.
The consent of Certificateholders shall not be required for any such withholding
and any amount so withheld shall be regarded as distributed to the related
Certificateholders for purposes of this Agreement. In the event the Paying Agent
withholds any amount from payments made to any Certificateholder pursuant to
federal withholding requirements, the Paying Agent shall indicate to such
Certificateholder the amount withheld.
SECTION 6.10 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 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 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
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 Prepayment Premium collected with respect to a Mortgage
Loan during any particular Collection Period will be distributed to the REMIC
Regular Certificates on the following Distribution Date as follows: The Holders
of the respective Classes of Principal Balance Certificates, other than the
Class G, Class H, Class I, Class J, Class K, Class L and Class M Certificates,
then entitled to distributions of principal from the Principal Distribution
Amount for such Distribution Date, will be entitled to an amount equal to the
product of (a) a fraction the numerator of which is the amount distributed as
principal to such Class on such Distribution Date and the denominator of which
is the total amount distributed as principal to all Classes of Certificates on
such Distribution Date, (b) 25% and (c) the total amount of Prepayment Premiums
collected during the related Collection Period. Any Prepayment Premiums
collected during the related Collection Period remaining after such
distributions will be distributed to the holders of the Class X Certificates. No
Prepayment Premiums will be distributed to holders of the Class G, H, I, J, K,
L, M or Residual Certificates. The Trustee shall not be responsible for the
Paying Agent's failure to comply with any related withholding requirements.
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SECTION 6.11 YIELD MAINTENANCE CHARGES.
On each Distribution Date, the Paying Agent shall be deemed to
distribute to the Trustee, as holder of the REMIC I Regular Interests, any Yield
Maintenance Charges collected on or with respect to the Mortgage Loans. On each
Distribution Date, the Paying Agent shall be deemed to distribute to the
Trustee, as holder of the REMIC II Regular Interests, any Yield Maintenance
Charges deemed distributed to the REMIC I Regular Interests, to be deemed
distributed to the REMIC II Regular Interest then entitled to distributions of
principal from the Principal Distribution Amount (or, if more than one Class of
such REMIC II Regular Interests is entitled to distributions of principal from
the Principal Distribution Amount, such Yield Maintenance Charges shall be
deemed to be allocated among such Classes in accordance with the distributions
thereof made to the corresponding REMIC Regular Interests). Any Yield
Maintenance Charges collected with respect to a Mortgage Loan during any
particular Collection Period will be distributed to the REMIC Regular
Certificates on the following Distribution Date as follows: The Holders of the
respective Classes of Principal Balance Certificates, other than the Class G,
Class H, Class I, Class J, Class K, Class L and Class M Certificates, then
entitled to distributions of principal from the Principal Distribution Amount
for such Distribution Date, will be entitled to an amount equal to the product
of (a) a fraction the numerator of which is the amount distributed as principal
to such Class on such Distribution Date and the denominator of which is the
total amount distributed as principal to all Classes of Certificates on such
Distribution Date, (b) the Base Interest Fraction for the related principal
prepayment and such Class of Certificates and (c) the aggregate amount of Yield
Maintenance Charges collected on such principal prepayment during the related
Collection Period. Any Yield Maintenance Charges received during the related
Collection Period with respect to such Mortgage Loans remaining after such
distributions shall be distributed on the Class X Certificates. No Yield
Maintenance Charges will be distributed to holders of the Class G, H, I, J, K,
L, M or Residual Certificates. The Trustee shall not be responsible for the
Paying Agent's failure to comply with any related withholding requirements.
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT
SECTION 7.1 DUTIES OF TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT.
(a) The Trustee, the Fiscal Agent and the Paying Agent each shall
undertake to perform only those duties as are specifically set forth in this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Trustee, the Fiscal Agent or the Paying Agent. Any
permissive right of the Trustee, the Fiscal Agent or the Paying Agent provided
for in this Agreement shall not be construed as a duty of the Trustee, the
Fiscal Agent or the Paying Agent. The Trustee, the Fiscal Agent and the Paying
Agent each shall exercise such of the rights and powers vested in it by this
Agreement and following the occurrence and during the continuation of any Event
of Default hereunder, the Trustee and the Paying Agent each shall use the same
degree of care and skill in its exercise as a prudent Person would exercise or
use under the circumstances in the conduct of such Person's own affairs.
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(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 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
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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.
(d) The Paying Agent covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by such
entity and used by such entity in the course of operation or management of, or
the compiling, reporting or generation of date required by this Agreement will
not contain any deficiency (x) in the ability of such software or hardware to
identify correctly or perform calculations or other processing with respect to
dates after August 31, 1999 or (y) that would cause such software to be fit no
longer for the purpose for which it was intended by reason of the changing of
the date from 1999 to 2000.
(e) The Trustee represents that it will use commercially
reasonable efforts to cure (by August 1999) any deficiencies with regards to the
manipulation or calculation of dates beyond December 31, 1999 in the internally
maintained computer software systems used by the Trustee in the conduct of its
trust business which would materially and adversely affect its ability to
perform its obligations under this Agreement. The Trustee further represents
that it will use reasonable commercial efforts to obtain reasonable assurances
from each third party vendor of licensed computer software systems used by the
Trustee in the conduct of its trust business that such vendors shall use
reasonable commercial efforts to cure any deficiencies with regards to the
manipulation or calculation of dates beyond December 31, 1999 in such systems
which would materially and adversely affect the ability of the Trustee to
perform its obligations under this Agreement.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, the Fiscal Agent and the Paying Agent
each may request, and may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document believed by
it to be genuine and to have been signed or presented by the proper party or
parties;
(ii) the Trustee, the Fiscal Agent and the Paying Agent
each may consult with counsel and the advice of such counsel and any Opinion of
Counsel shall be full and
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complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(iii) neither the Trustee nor the Fiscal Agent nor the
Paying Agent nor any of their respective directors, officers, employees, agents
or Controlling Persons shall be personally liable for any action taken, suffered
or omitted by such Person in its reasonable business judgment and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(iv) neither the Trustee nor the Paying Agent shall be
under any obligation to exercise any remedies after default as specified in this
Agreement or to institute, conduct or defend any litigation hereunder or
relating hereto or make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document (provided the
same appears regular on its face), unless requested in writing to do so by
Holders of at least 25% of the Aggregate Principal Amount of the Certificates
then outstanding provided that, if the payment within a reasonable time to the
Trustee or the Paying Agent, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in connection with the foregoing is, in
the opinion of such Person not reasonably assured to such Person by the security
afforded to it by the terms of this Agreement, such Person may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable expenses of the
Trustee or the Paying Agent, as applicable, shall be paid by the
Certificateholders requesting such examination;
(v) the Trustee, the Fiscal Agent and the Paying Agent
each may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, which agents or
attorneys shall have any or all of the rights, powers, duties and obligations of
the Trustee, the Fiscal Agent and the Paying Agent conferred on them by such
appointment; provided that each of the Trustee, the Fiscal Agent and the Paying
Agent, as the case may be, shall continue to be responsible for its duties and
obligations hereunder and shall not be liable for the actions or omissions of
the Servicer, the Special Servicer, the Depositor or the actions or omissions of
each other;
(vi) neither the Trustee nor the Fiscal Agent nor the
Paying Agent shall be required to obtain a deficiency judgment against a
Mortgagor;
(vii) neither the Trustee nor the Fiscal Agent nor the
Paying Agent shall be required to expend its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such liability is not assured to it;
(viii) none of the Trustee, the Fiscal Agent and the
Paying Agent shall be liable for any loss on any investment of funds pursuant to
this Agreement;
(ix) unless otherwise specifically required by law,
neither the Trustee nor the Fiscal Agent nor the Paying Agent shall be required
to post any surety or bond of any kind in connection with the execution or
performance of its duties hereunder; and
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(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 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
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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 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.
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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 or state authority, and (iii) an institution whose
long-term senior unsecured debt is rated not less than either (a) "Aa2" by
Moody's and, if rated by DCR, "AA" by DCR, and if not rated by DCR, then
otherwise acceptable to DCR, or (b) "A2" by Moody's and, if rated by DCR, "BBB"
by DCR, or if not rated by DCR, then otherwise approved by DCR, if the Fiscal
Agent has a long-term senior secured debt rating of not less than "Aa2" by
Moody's and "AA" by DCR, if rated by DCR, and if not rated by DCR, then
otherwise approved by DCR. If such corporation or national bank publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then, for the purposes of
this Section, the combined capital and surplus of such corporation or national
bank shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. In case at any time the Trustee or
the Fiscal Agent shall cease to be eligible in accordance with provisions of
this Section, the Trustee or the Fiscal Agent shall resign immediately in the
manner and with the effect specified in Section 7.6.
(b) The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall be
rated at least "Baa2" by Moody's and "BBB" by DCR, unless and to the extent
Rating Agency Confirmation is obtained.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE, THE FISCAL
AGENT OR THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent or the Paying Agent may at any
time resign and be discharged from the trusts hereby created by giving written
notice thereof to the Depositor, the Servicer and the Rating Agencies; provided
that such resignation shall not be effective until its successor shall have
accepted the appointment. Upon receiving such notice of resignation, the
Depositor will promptly appoint a successor trustee, fiscal agent or paying
agent, as the case may be, except in the case of the initial Trustee or Fiscal
Agent, in which case both shall be so replaced but may be replaced under this
paragraph sequentially, by written instrument, one copy of which instrument
shall be delivered to the resigning Trustee or the Fiscal Agent, one copy to the
successor trustee and one copy to each of the Servicer and the Rating Agencies.
If no successor trustee, fiscal agent or paying agent shall have been so
appointed, as the case may be, and shall have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, may petition any court of
competent jurisdiction for the appointment of a successor trustee, fiscal agent
or paying agent, as the case may be. It shall be a condition to the appointment
of a successor trustee, fiscal agent or paying agent that each Rating Agency
shall have delivered a Rating Agency Confirmation with respect to such
appointment.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5(a) and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of
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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 the Rating
Agencies of any Class of Certificates with a rating as evidenced in writing by
the Rating Agencies or (v) with respect with the initial Trustee, a Fiscal Agent
Termination Event has occurred unless the Trustee has satisfied the ratings
required by Section 7.5(iii)(a) above, then the Depositor may remove such
Trustee and appoint a successor trustee by written instrument, one copy of which
instrument shall be delivered to the Trustee so removed, one copy to the
successor trustee and one copy to each of the Servicer and the Rating Agencies.
In the case of removal under clauses (i), (ii), (iii) and (iv) above, the
Trustee shall bear all such costs of transfer. Such succession shall take effect
after a successor trustee has been appointed. In the case of the removal of the
initial Trustee, the Depositor shall also remove the Fiscal Agent. In this case,
the procedures and liability for costs of such removal shall be the same as they
are stated in subsection (c) with respect to the Fiscal Agent.
(c) If at any time (i) the Fiscal Agent shall cease to be
eligible in accordance with the provisions of Section 7.5(a) and shall fail to
resign after written request therefor by the Depositor, or (ii) a Fiscal Agent
Termination Event has occurred, then the Depositor shall send a written notice
of termination to the Fiscal Agent (which notice shall specify the reason for
such termination) and remove such Fiscal Agent and appoint a successor Fiscal
Agent by written instrument, one copy of which instrument shall be delivered to
the Fiscal Agent so removed, one copy to the successor Fiscal Agent, and one
copy to each of the Trustee, the Servicer and the Rating Agencies. In all such
cases, the Fiscal Agent shall bear all costs of transfer to a successor Fiscal
Agent, such succession only to take effect after a successor Fiscal Agent has
been appointed. In the case of the initial Fiscal Agent, the Depositor may, but
is not required to, also remove the Trustee. In this case, the procedures and
liability for costs of such removal shall be the same as they are stated in
subsection (b) with respect to the Trustee.
(d) If at any time (i) the Paying Agent shall cease to be
eligible in accordance with the provisions of Section 7.5(b) and shall fail to
resign after written request therefor by the Depositor, (ii) the Paying Agent
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Paying Agent or of its property shall be appointed, or any
public officer shall take charge or control of the Paying Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, (iii) a tax is imposed or threatened with respect to the Trust or
any REMIC Pool by any state in which the Paying Agent is located solely because
of the location of the Paying Agent in such state; provided, however, that, if
the Paying Agent agrees to indemnify the Trust for such taxes, it shall not be
removed pursuant to this clause (iii), or (iv) the continuation of the Paying
Agent as such would result in a downgrade, qualification (including the
placement of any rated Certificate on "credit watch" or the equivalent) or
withdrawal, as applicable, of the rating by the Rating Agencies of any Class of
Certificates with a rating as evidenced in writing by the Rating Agencies, then
the Depositor or the Trustee shall send a written notice of termination to the
Paying Agent (which notice shall specify the reason for such termination) and
remove such Paying Agent and the Depositor shall appoint a successor Paying
Agent by written instrument, one copy of which instrument shall be
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delivered to the Paying Agent so removed, one copy to the successor Paying
Agent, and one copy to each of the Trustee, the Servicer and the Rating
Agencies. In all such cases, the Paying Agent shall bear all costs of transfer
to a successor Paying Agent, such succession only to take effect after a
successor Paying Agent has been appointed.
(e) The Holders of more than 50% of the Aggregate Principal
Amount of the Certificates then outstanding may for cause upon 30 days' written
notice to the Trustee, the Fiscal Agent or the Paying Agent, as the case may be,
and to the Depositor remove the Trustee, the Fiscal Agent or the Paying Agent,
as the case may be, by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor and one copy to the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, so removed; the Depositor shall thereupon use
its best efforts to appoint a successor Trustee, Fiscal Agent or Paying Agent,
as the case may be, in accordance with this Section.
(f) Any resignation or removal of the Trustee, the Fiscal Agent
or the Paying Agent, as the case may be, and appointment of a successor trustee,
fiscal agent or paying agent pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor trustee,
fiscal agent or paying agent, as the case may be, as provided in Section 7.7.
Upon any succession of the Trustee, the Fiscal Agent or Paying Agent under this
Agreement, the predecessor Trustee, Fiscal Agent or Paying Agent, as the case
may be, shall be entitled to the payment of compensation and reimbursement
agreed to under this Agreement for services rendered and expenses incurred. The
Trustee, the Fiscal Agent or the Paying Agent shall not be liable for any action
or omission of any successor Trustee, Fiscal Agent or Paying Agent, as the case
may be.
SECTION 7.7 SUCCESSOR TRUSTEE, FISCAL AGENT OR PAYING AGENT.
(a) Any successor Trustee, Fiscal Agent or Paying Agent appointed
as provided in Section 7.6 shall execute, acknowledge and deliver to the
Depositor and to its predecessor Trustee, Fiscal Agent or Paying Agent, as the
case may be, an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee, Fiscal Agent or Paying
Agent, as the case may be, shall become effective and such successor Trustee,
Fiscal Agent or Paying Agent, as the case may be, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee, Fiscal Agent or Paying Agent herein. The predecessor Trustee,
Fiscal Agent or Paying Agent shall deliver (at such predecessor's own expense)
to the successor Trustee, Fiscal Agent or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee,
Fiscal Agent or Paying Agent, as the case may be, shall also deliver all records
or copies thereof maintained by the predecessor Trustee, Fiscal Agent or Paying
Agent in the administration hereof as may be reasonably requested by the
successor Trustee, Fiscal Agent or Paying Agent, as applicable, and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the Depositor and the predecessor Trustee,
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Fiscal Agent or Paying Agent shall execute and deliver such other instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor Trustee, Fiscal Agent or Paying
Agent, as the case may be, all such rights, powers, duties and obligations.
Anything herein to the contrary notwithstanding, in no event shall the combined
fees payable to a successor Trustee exceed the Trustee Fee.
(b) No successor Trustee, Fiscal Agent or Paying Agent shall
accept appointment as provided in this Section unless at the time of such
appointment such successor Trustee, Fiscal Agent or Paying Agent, as the case
may be, shall be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee, Fiscal
Agent or Paying Agent as provided in this Section, the successor Trustee, Fiscal
Agent or Paying Agent shall mail notice of the succession of such Trustee,
Fiscal Agent or Paying Agent hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to the Rating Agencies. The
expenses of such mailing shall be borne by the successor Trustee, Fiscal Agent
or Paying Agent. If the successor Trustee, Fiscal Agent or Paying Agent fails to
mail such notice within 10 days after acceptance of appointment by the successor
Trustee, Fiscal Agent or Paying Agent, the Servicer shall cause such notice to
be mailed at the expense of the successor Trustee, Fiscal Agent or Paying Agent,
as applicable.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, FISCAL AGENT OR
PAYING AGENT. Any Person into which the Trustee, Fiscal Agent or Paying Agent
may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee,
Fiscal Agent or Paying Agent shall be a party, or any Persons succeeding to the
business of such Trustee, Fiscal Agent or Paying Agent, shall be the successor
of such Trustee, Fiscal Agent or Paying Agent, as the case may be, hereunder, as
applicable, provided that such Person shall be eligible under the provisions of
Section 7.5, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS
OR CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Servicer or Special Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so 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
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be deemed to have accepted the provisions of this Agreement; provided that no
such appointment shall, or shall be deemed to, constitute the appointee an agent
of the Trustee; provided, further that the Trustee shall be liable for the
actions of any custodian, co-trustee or separate trustee appointed by it and
shall have no liability for the actions of any custodian, co-trustee or separate
trustee appointed by the Depositor or the Certificateholders pursuant to this
paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from
time to time appoint one or more independent third-party agents to perform all
or any portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding, the terms of any agreement, the Trustee or the
Paying Agent, as the case may be, shall remain at all times obligated and liable
to the Trust and the Certificateholders for performing its duties hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to
the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody and payment of moneys shall
be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer hereunder) the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations, including the holding of title to the
Trust or any portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be
personally liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(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
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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 successor
Custodian. Until such time as the Trustee appoints a successor Custodian, State
Street Bank and Trust Company is hereby appointed as Custodian to hold the
Mortgage Files with respect to the Mortgage Loans, as agent for the Trustee.
Upon the appointment of a successor custodian, the Trustee and the Custodian
shall enter into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Paying Agent shall serve as the initial Authenticating
Agent hereunder for the purpose of executing and authenticating Certificates.
Wherever reference is made in this Agreement to the execution and authentication
of Certificates by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include execution and authentication on behalf
of the Trustee by the Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by the Authenticating Agent. Any successor
Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws of the
United States of America or of any state and having a principal office and place
of business in the Borough of Manhattan, the City and State of New York or in
the State of Minnesota, having a combined capital and surplus of at least
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$50,000,000, authorized under such laws to do a trust business and subject to
supervision or examination by federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which the Authenticating Agent shall
be a party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice of termination to the
Authenticating Agent and the Depositor; provided that the Trustee may not
terminate the Paying Agent as Authenticating Agent unless the Paying Agent shall
be removed as paying agent hereunder. Upon receiving a notice of resignation or
upon such a termination, or in case at any time the Authenticating Agent shall
cease to be eligible in accordance with the provisions of Section 7.10(a), the
Trustee may appoint a successor Authenticating Agent, shall give written notice
of such appointment to the Depositor and shall mail notice of such appointment
to all Holders of Certificates. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. No such Authenticating
Agent shall be appointed unless eligible under the provisions of Section
7.10(a). No Authenticating Agent shall have responsibility or liability for any
action taken by it as such at the direction of the Trustee.
SECTION 7.11 INDEMNIFICATION OF TRUSTEE, THE FISCAL AGENT AND THE
PAYING AGENT.
(a) The Trustee, the Fiscal Agent and the Paying Agent and each
of its respective directors, officers, employees, agents and Controlling Persons
shall be entitled to indemnification from the Trust for any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgements
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action incurred without negligence or willful misconduct on their
respective part, arising out of, or in connection with this Agreement, the
Certificates and the acceptance or administration of the trusts or duties
created hereunder (including, without limitation, any unanticipated loss,
liability or expense incurred in connection with any action or inaction of the
Servicer, the Special Servicer or the Depositor or of each other such Person
hereunder but only to the extent the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, is unable to recover within a reasonable period of
time such amount from such third party pursuant to this Agreement) including the
costs and expenses of defending themselves against any claim in connection with
the exercise or performance of any of their powers or duties hereunder and the
Trustee, the Fiscal Agent and the Paying Agent and each of their respective
directors, officers, employees, agents and Controlling Persons shall be entitled
to indemnification from the Trust for any unanticipated loss, liability or
expense incurred in connection with the provision by the Trustee, the Fiscal
Agent and the Paying Agent of the reports required to be provided by it pursuant
to this Agreement; provided that:
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(i) with respect to any such claim, the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, shall have given the
Depositor, the Servicer, each other and the Holders of the Certificates written
notice thereof promptly after a Responsible Officer of the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, shall have knowledge thereof;
provided, however that failure to give such notice to the Depositor, Servicer,
each other and the Holders of Certificates shall not affect the Trustee's,
Fiscal Agent's or Paying Agent's, as the case may be, rights to indemnification
herein unless the Depositor's defense of such claim on behalf of the Trust is
materially prejudiced thereby;
(ii) while maintaining control over its own defense, the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, shall
cooperate and consult fully with the Depositor in preparing such defense; and
(iii) notwithstanding anything to the contrary in this
Section 7.11, the Trust shall not be liable for settlement of any such claim by
the Trustee, the Fiscal Agent or the Paying Agent, as the case may be, entered
into without the prior consent of the Depositor, which consent shall not be
unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any
termination of this Agreement and the resignation or removal of the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee,
the Fiscal Agent or the Paying Agent, as the case may be, their respective
directors, officers, employees or agents and Controlling Persons from and
against any loss, claim, damage or liability, joint or several, and any action
in respect thereof, to which the Trustee, the Fiscal Agent or the Paying Agent,
as the case may be, their respective directors, officers, employees or agents or
Controlling Person may become subject under the 1933 Act, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Private Placement Memorandum, in the Preliminary Prospectus Supplement or Final
Prospectus Supplement, or arises out of, or is based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made, not misleading and shall reimburse the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, their respective directors,
officers, employees, agents or Controlling Person for any legal and other
expenses reasonably incurred by the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, or any such director, officer, employee, agent or
Controlling Person in investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action; provided, that the Depositor
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission made in any such Private
Placement Memorandum, Preliminary Prospectus Supplement or Final Prospectus
Supplement in reliance upon and in conformity with written information
concerning the Trustee, the Fiscal Agent or the Paying Agent, as the case may
be, 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, fourth, fifth and
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sixth sentences under the caption entitled "DESCRIPTION OF THE CERTIFICATES--The
Trustee", in the case of the Fiscal Agent, in the penultimate 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, fourth, fifth and sixth
sentences under the caption entitled "DESCRIPTION OF THE CERTIFICATES--The
Trustee", in the case of the Fiscal Agent, in the penultimate sentence under the
caption "DESCRIPTION OF THE CERTIFICATES --the Fiscal Agent", and, in the case
of the Paying Agent, in the third and fourth sentences under the caption
entitled "DESCRIPTION OF THE CERTIFICATES--the Paying Agent, Certificate
Registrar and Authenticating Agent". The Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, shall immediately notify the Depositor if a claim is
made by a third party with respect to this Section 7.11(c) entitling such
person, its directors, officers, employees, agents or Controlling Person to
indemnification hereunder, whereupon the Depositor shall assume the defense of
any such claim (with counsel reasonably satisfactory to such person) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Depositor shall not
affect any rights the Trustee, the Fiscal Agent or the Paying Agent, as the case
may be, their respective directors, officers, employees, agents or Controlling
Person may have to indemnification under this Section 7.11(c), unless the
Depositor's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this Agreement
and the resignation or removal of the Trustee, the Fiscal Agent or the Paying
Agent.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE, THE FISCAL AGENT AND
PAYING AGENT. The Trustee shall be entitled to receive the Trustee Fee (other
than the portion thereof constituting the Paying Agent Fee) and the Paying Agent
shall be entitled to receive the Paying Agent Fee, pursuant to Section
5.3(b)(ii) (which shall not be limited by any provision of law with respect to
the compensation of a trustee of an express trust), for all services rendered by
it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties respectively, hereunder of the
Trustee and the Paying Agent, respectively. The Trustee, the Fiscal Agent and
the Paying Agent shall also be entitled to recover from the Trust all reasonable
unanticipated expenses and disbursements incurred or made by the Trustee, the
Fiscal Agent and the Paying Agent in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and other Persons not regularly in its
employ), not including expenses incurred in the ordinary course of performing
its duties as Trustee, Fiscal Agent or Paying Agent, respectively hereunder, and
except any such expense, disbursement or advance as may arise from the
negligence or bad faith of such Person or which is the responsibility of the
Holders of the 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
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Paying Agent, as the case may be, pursuant to this Agreement. The Trustee or the
Paying Agent, as the case may be, shall hold all such money and property
received by it as part of the Trust and shall distribute it as provided in this
Agreement. If the Trustee or Paying Agent, as the case may be, shall not have
timely received amounts to be remitted with respect to the Mortgage Loans from
the Servicer, the Trustee or Paying Agent, as the case may be, shall request the
Servicer to make such distribution as promptly as practicable or legally
permitted. If the Trustee or Paying Agent, as the case may be, shall
subsequently receive any such amount, it may withdraw such request.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Servicer is terminated pursuant to
this Agreement, the Trustee shall be the successor in all respects to the
Servicer in its capacity under this Agreement and the transactions set forth or
provided for therein and shall have all the rights and powers and be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Servicer by the terms and provisions of this Agreement;
provided that, any failure to perform such duties or responsibilities caused by
the Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of the Servicer
contained in this Agreement or (ii) any obligation incurred by the Servicer
prior to its termination or resignation (including, without limitation, the
Servicer's obligation to repay losses resulting from the investment of funds in
any account established under this Agreement). In the Trustee's capacity as such
successor, the Trustee shall have the same limitations on liability granted to
the Servicer in this Agreement. As compensation therefor, the Trustee shall be
entitled to receive all the compensation payable to the Servicer set forth in
this Agreement, including, without limitation, the Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the
Trustee is unwilling to so act, or (B) shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint, any
established commercial or multifamily mortgage finance institution, servicer or
special servicer or mortgage servicing institution having a net worth of not
less than $15,000,000 and meeting such other standards for a successor servicer
as are set forth in this Agreement as the successor to the Servicer hereunder in
the assumption of all of the responsibilities, duties or liabilities of a
servicer as Servicer hereunder; provided that the Trustee has obtained Rating
Agency Confirmation regarding such appointment. Pending any such appointment,
the Trustee shall act in such capacity as provided above. Any entity designated
by the Trustee as successor Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for the Servicer as set
forth herein, including that Rating Agency Confirmation regarding such
appointment has been obtained. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on 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
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enable the successor servicer to assume the Servicer's functions hereunder and
the transfer to the Trustee or such successor servicer of all amounts which
shall at the time be or should have been deposited by the Servicer in the
Certificate Account and any other account or fund maintained with respect to the
Certificates or thereafter be received by the Servicer with respect to the
Mortgage Loans. Neither the Trustee nor any other successor servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any delay
in making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Servicer to deliver, or any delay in delivering, cash, documents
or records to it, or (ii) restrictions imposed by any regulatory authority
having jurisdiction over the Servicer. The Trustee shall be reimbursed for all
of its out-of-pocket expenses incurred in connection with obtaining such
successor Servicer by the Trust within 30 days of the Trustee's submission of an
invoice with respect thereto, to the extent such expenses have not been
reimbursed by the Servicer as provided herein; such expenses paid by the Trust
shall be deemed to be an Additional Trust Expense.
(c) On and after the time the Special Servicer is terminated
pursuant to this Agreement, in accordance with Section 9.30, the Controlling
Class shall have the right to appoint a successor Special Servicer that
satisfies the criteria specified in the first sentence of the next paragraph and
Section 9.21 hereof. Unless and until the Controlling Class shall have appointed
a successor Special Servicer hereunder, the Trustee shall be the successor in
all respects to the Special Servicer in its capacity under this Agreement and
the transactions set forth or provided for therein and shall have all the rights
and powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Special Servicer by the
terms and provisions of this Agreement; provided that, any failure to perform
such duties or responsibilities caused by the Special Servicer's failure to
provide required information shall not be considered a default by the Trustee
hereunder. In addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Special Servicer contained in this
Agreement or (ii) any obligation incurred by the Special Servicer prior to its
termination or resignation. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability granted to the Special
Servicer in this Agreement. As compensation therefor, the Trustee shall be
entitled to receive all the compensation payable to the Special Servicer set
forth in this Agreement, including, without limitation the Special Servicer
Compensation.
(d) Notwithstanding the above, the Trustee may, if the Trustee
shall be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.21, as the successor to the Special Servicer hereunder in the
assumption of all of the responsibilities, duties 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
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shall agree; provided that no such compensation shall be in excess of that
permitted to the Special Servicer under this Agreement. The Trustee and such
successor shall take such actions, consistent with this Agreement as shall be
necessary to effectuate any such succession. The Special Servicer shall
cooperate with the Trustee and any successor Special Servicer in effecting the
termination of the Special Servicer's responsibilities and rights under this
Agreement, including, without limitation, notifying Mortgagors of Specially
Serviced Mortgage Loans of the assignment of the special servicing function and
providing the Trustee and successor Special Servicer all documents and records
in its possession in electronic or other form reasonably requested by the
successor Special Servicer to enable the successor Special Servicer to assume
the Special Servicer's functions hereunder and the transfer to the Trustee or
such successor Special Servicer of all amounts which shall at the time be or
should have been deposited by the Special Servicer in the Certificate Account
and any other account or fund maintained with respect to the Certificates or
thereafter be received by the Special Servicer with respect to the Mortgage
Loans. Neither the Trustee nor any other successor Special Servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any delay
in making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Special Servicer to deliver, or any delay in delivering, cash,
documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the Special Servicer. The Trustee shall be
reimbursed for all of its out-of-pocket expenses incurred in connection with
obtaining such successor Special Servicer by the Trust within 30 days of
submission of an invoice with respect thereto but only to the extent such
expenses have not been reimbursed by the Special Servicer as provided herein;
and such expenses paid by the Trust shall be deemed to be an Additional Trust
Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of the
Servicer, the Paying Agent or the Special Servicer, or appointment of a
successor to the Servicer, the Paying Agent or the Special Servicer, the Trustee
shall promptly mail notice thereof by first class mail to the Rating Agencies
and the Certificateholders at their respective addresses appearing on the
Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE, THE
FISCAL AGENT AND THE PAYING AGENT.
(a) The Trustee hereby represents and warrants as of the Closing
Date that:
(i) the Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has 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
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Agreement, (ii) the organizational documents of the Trustee, or (iii) the terms
of any material agreement or instrument to which the Trustee is a party or by
which it is bound; the Trustee is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency, which default would materially and
adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by the
Trustee of this Agreement and the consummation of the transactions contemplated
by this Agreement do not require the consent, approval, authorization or order
of, the giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Trustee to perform its obligations
under this Agreement;
(iv) this Agreement has been duly executed and delivered
by the Trustee and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally as from
time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and
(v) no litigation is pending or, to the Trustee's
knowledge, threatened, against the Trustee that, either in one instance or in
the aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee to perform under
the terms of this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of the
Closing Date that:
(i) the Fiscal Agent is a foreign banking corporation duly
organized, validly existing and in good standing under the laws
governing its creation and existence and has full corporate power and
authority to own its property, to carry on its business as presently
conducted, and to enter into and perform its obligations under this
Agreement;
(ii) the execution and delivery by the Fiscal Agent of
this Agreement have been duly authorized by all necessary corporate
action on the part 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;
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(iii) the execution, delivery and performance by the
Fiscal Agent of this Agreement and the consummation of the transactions
contemplated by this Agreement do not require the consent, approval,
authorization or order of, the giving of notice to, or the registration
with, any state, federal or other governmental authority or agency,
except such as has been obtained, given, effected or taken prior to the
date hereof;
(iv) this Agreement has been duly executed and delivered
by the Fiscal Agent and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid and binding
obligation of the Fiscal Agent, enforceable against the Fiscal Agent in
accordance with its terms, subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and other
similar laws affecting creditors' rights generally as from time to time
in effect, and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
and
(v) no litigation is pending or, to the Fiscal Agent's
knowledge, threatened, against the Fiscal Agent that, either in any one
instance or in the aggregate, would draw into question the validity of
this Agreement, or which would be likely to impair materially the
ability of the Fiscal Agent to perform under the terms of this
Agreement.
(c) The Paying Agent hereby represents and warrants as of the
Closing Date that:
(i) the Paying Agent is a national banking association,
duly organized, validly existing and in good standing under the laws governing
its creation and existence and has full power and authority to own its property,
to carry on its business as presently conducted, and to enter into and perform
its obligations under this Agreement;
(ii) the execution and delivery by the Paying Agent of
this Agreement have been duly authorized by all necessary action on the part of
the Paying Agent; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will 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
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been or will be obtained, given, effected or taken in order for the Paying Agent
to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered
by the Paying Agent and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid and binding obligation of the
Paying Agent, enforceable against the Paying Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending or,
to the best of the Paying Agent's knowledge, threatened, against the Paying
Agent that, either in one instance or in the aggregate, would draw into question
the validity of this Agreement, or which would be likely to impair materially
the ability of the Paying Agent to perform under the terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT. Each of
the Trustee, the Fiscal Agent and the Paying Agent, at its own respective
expense, shall maintain in effect a Fidelity Bond and a 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 "A1" as rated
by Moody's and "A" as rated by DCR, if rated by DCR, 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.
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ARTICLE VIII
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for and
on behalf of the Trust and for the benefit of the Certificateholders as a whole,
the Servicer shall service and administer the Mortgage Loans in accordance with
the Servicing Standard and the terms of this Agreement.
In connection with such servicing and administration, the
Servicer shall seek to maximize the timely recovery of principal and interest on
the Mortgage Notes in the best economic interests of the Certificateholders as a
whole; provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the Servicer of the collectibility of payments
on the Mortgage Loans or shall be construed as impairing or adversely affecting
any rights or benefits specifically provided by this Agreement to the Servicer,
including with respect to Servicing Fees or the right to be reimbursed for
Advances.
(b) The Servicer, in the case of an event specified in clause (x)
of this subclause (b), and the Special Servicer, in the case of an event
specified in clause (y) of this subclause (b), shall each send a written notice
to the other and to the Trustee and the Paying Agent within two Business Days
after becoming aware (x) that a Servicing Transfer Event has occurred with
respect to a Mortgage Loan or (y) that a Mortgage Loan has become a
Rehabilitated Mortgage Loan, which notice shall identify the applicable Mortgage
Loan and, in the case of an event specified in clause (x) of this subclause (b)
above, the Servicing Transfer Event that occurred.
(c) The Servicer covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by the
Servicer and used by the Servicer in the course of operation or management of,
or the compiling, reporting or generation of date required by this Agreement
will not contain any deficiency (x) in the ability of such software or hardware
to identify correctly or perform calculations or other processing with respect
to dates after December 31, 1999 or (y) that would cause such software to be fit
no longer for the purpose for which it was intended by reason of the changing of
the date from 1999 to 2000.
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE SERVICER. The Servicer, at its expense, shall maintain
in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance
Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity
Bond shall be issued by a Qualified Insurer (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 "A2" as rated by Moody's and "A" as rated by DCR,
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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.
(a) The Servicer shall service and administer the Mortgage Loans
and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article XII hereof and
as otherwise provided herein and by the Code, have full power and authority to
do any and all things which it may deem necessary or desirable in connection
with such servicing and administration in accordance with the Servicing
Standard. To the extent consistent with the foregoing and subject to any express
limitations and provisions set forth in this Agreement, the Servicer shall have
full power and authority with respect to each Mortgage Loan and Mortgaged
Property (other than any Specially Serviced Mortgaged Loan and the related
Mortgaged Property or any REO Property) to do or cause to be done any and all
things that it may deem necessary or desirable in connection with such servicing
and administration, including but not limited to, the power and authority,
subject to the terms hereof, (A) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents (including, without limitation, estoppel certificates,
financing statements, continuation statements, title endorsements and reports
and other documents and instruments necessary to preserve and maintain the lien
on the related Mortgaged Property and related collateral), (B) to consent to
assignments and assumptions or substitutions, and transfers of interest of any
Mortgagor, in each case subject to and in accordance with the terms of the
related Mortgage Loan and Section 8.7, (C) to collect any Insurance Proceeds and
Liquidation Proceeds, (D) to consent to any subordinate financings to be secured
by any related Mortgaged Property to the extent that such consent is required
pursuant to the terms of the related Mortgage or which otherwise is required and
to administer and monitor the application of such proceeds and awards in
accordance with the terms of the Mortgage Loan as the Servicer deems reasonable
under the circumstances, (E) to consent to the application of any proceeds of
insurance policies or condemnation awards to the restoration of the related
Mortgaged Property or otherwise, (F) to bring an action in a court of law or
equity to enforce rights of the Trustee and the Certificateholders with respect
to the related Mortgaged Properties, (G) to execute and deliver, on behalf of
the Certificateholders and the Trustee, documents relating to the management,
operation, maintenance, repair, leasing and marketing of the related Mortgaged
Properties, including agreements and requests by the Mortgagor with respect to
modifications of the standards of operation and management of the Mortgaged
Properties or the replacement of asset managers, (H) to obtain, release, waive
or modify any term other than a Money Term of a Mortgage Loan and related
documents subject to and to the extent permitted by Section 8.18, (I) to
exercise all rights, powers and privileges granted or provided to the holder of
the Mortgage Notes under the terms of the Mortgage, including all rights of
consent or approval thereunder, (J) to enter into lease subordination
agreements, non-disturbance and attornment agreements or other leasing or rental
arrangements which may be requested by the Mortgagor or the Mortgagor's tenants,
(K) to join the Mortgagor in granting, modifying or releasing any easements,
covenants, conditions, restrictions, equitable servitudes, or land use or zoning
requirements with respect to the Mortgaged Properties to the extent such does
not adversely affect the value of the related Mortgage Loan or Mortgaged
Property, (L) to execute and deliver, on behalf of itself, the Trustee, the
Trust or any of them, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge and all other comparable instruments,
with respect to the Mortgage Loans and with respect to the Mortgaged Properties,
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and (M) hold in accordance with the terms of any Mortgage Loan and this
Agreement, Defeasance Collateral. Notwithstanding the above, the Servicer shall
have no power to (i) waive any Prepayment Premiums or Yield Maintenance Charges
or (ii) consent to any modification of a Money Term of a Mortgage Loan. Nothing
contained in this Agreement shall limit the ability of the Servicer to lend
money to (to the extent not secured, in whole or in part, by any Mortgaged
Property), accept deposits from and otherwise generally engage in any kind of
business or dealings with any Mortgagor as though the Servicer was not a party
to this Agreement or to the transactions contemplated hereby; provided, however,
that this sentence shall not modify the Servicing Standard.
(b) The Servicer shall not be obligated to service and administer
the Mortgage Loans which have become and continue to be Specially Serviced
Mortgage Loans, except as specifically provided herein. The Servicer shall be
required to make all calculations and prepare all reports required hereunder
with respect to such Specially Serviced Mortgage Loans (other than calculations
and reports expressly required to be made by the Special Servicer hereunder) as
if no Servicing Transfer Event had occurred and shall continue to collect all
Scheduled Payments, make Servicing and P&I Advances as set forth herein and to
render such incidental services with respect to such Specially Serviced Mortgage
Loans, all as are specifically provided for herein, but shall have no other
servicing or other duties with respect to such Specially Serviced Mortgage
Loans. The Servicer shall give notice within three Business Days to the Special
Servicer of any collections it receives from any Specially Serviced Mortgage
Loans, subject to changes agreed upon from time to time by the Special Servicer
and the Servicer. The Special Servicer shall instruct within one Business Day
after receiving such notice the Servicer on how to apply such funds. The
Servicer within one Business Day after receiving such instructions shall apply
such funds in accordance with the Special Servicer's instructions. Each Mortgage
Loan that becomes a Specially Serviced Mortgage Loan shall continue as such
until such Mortgage Loan becomes a Rehabilitated Mortgage Loan. The Servicer
shall not be required to initiate extraordinary collection procedures or legal
proceedings with respect to any Mortgage Loan or to undertake any
pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the
Trustee will sign the Power of Attorney attached hereto as Exhibit S-1. The
Servicer, shall promptly notify the Trustee of the execution and delivery of any
document on behalf of the Trustee under such Power of Attorney. From time to
time until the termination of the Trust, upon receipt of written request of the
Servicer, the Trustee shall furnish the Servicer with any additional powers of
attorney and other documents necessary or appropriate to enable the Servicer to
service and administer the Mortgage Loans including, without limitation,
documents relating to the management, operation, maintenance, repair, leasing or
marketing of the Mortgaged Properties. The Servicer shall indemnify the Trustee
for any costs, liabilities and expenses (including attorneys' fees) incurred by
the Trustee in connection with the intentional or negligent misuse of such power
of attorney by the Servicer. Notwithstanding anything contained herein to the
contrary, the Servicer shall not, without the Trustee's written consent: (I)
hire or procure counsel to represent the Trustee or (II) prepare, execute or
deliver any government filings, forms, permits, registrations or other documents
which have the effect of causing the Trustee to be registered to do business in
any state.
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(d) The Servicer shall make efforts consistent with the Servicing
Standard and the terms of this Agreement to collect all payments called for
under the terms and provisions of the applicable Mortgage Loans (other than
Specially Serviced Mortgage Loans or REO Properties).
(e) The Servicer shall segregate and hold all funds collected and
received pursuant to any Mortgage Loan constituting Escrow Amounts separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more segregated custodial accounts (each, an "Escrow Account")
into which all Escrow Amounts shall be deposited within one (1) Business Day
after receipt. The Servicer shall also deposit into each Escrow Account any
amounts representing losses on Eligible Investments pursuant to the immediately
succeeding paragraph and any Insurance Proceeds or Liquidation Proceeds which
are required to be applied to the restoration or repair of any Mortgaged
Property pursuant to the related Mortgage Loan. Each Escrow Account shall be
maintained in accordance with the requirements of the related Mortgage Loan and
in accordance with the Servicing Standard. Withdrawals from an Escrow Account
may be made by the Servicer only:
(i) to effect timely payments of items constituting Escrow
Amounts for the related Mortgage Loan;
(ii) to transfer funds to the Certificate Account to
reimburse the Servicer for any Advance relating to Escrow Amounts, but only from
amounts received with respect to the related Mortgage Loan which represent late
collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the
related Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any
interest or investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Mortgagor under applicable law
or by the terms of the Mortgage Loan, or otherwise to the Servicer; and
(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
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of any such investment of funds immediately upon the realization of such loss.
The Servicer shall not direct the investment of funds held in any Escrow Account
and retain the income and gain realized therefrom if the terms of the related
Mortgage Loan or applicable law permit the Mortgagor to be entitled to the
income and gain realized from the investment of funds deposited therein, and the
Servicer shall not be required to invest amounts on deposit in Escrow Accounts
in Eligible Investments or Eligible Accounts to the extent that the Servicer is
required by either law or under the terms of any related Mortgage Loan to
deposit or invest such amounts in another type of investments or accounts. In
the event the Servicer is not entitled to direct the investment of such funds,
(1) the Servicer shall direct the depository institution or trust company in
which such Escrow Accounts are maintained to invest the funds held therein in
accordance with the Mortgagor's written investment instructions, if the terms of
the related Mortgage Loan or applicable law require the Servicer to invest such
funds in accordance with the Mortgagor's directions; and (2) in the absence of
appropriate written instructions from the Mortgagor, the Servicer shall have no
obligation to, but may be entitled to, direct the investment of such funds;
provided, however, that in either event (i) such funds shall be either (y)
immediately available or (z) available in accordance with a schedule which will
permit the Servicer to meet the payment obligations for which the Escrow Account
was established, and (ii) the Servicer shall have no liability for any loss in
investments of such funds that are invested pursuant to written instructions
from the Mortgagor.
(f) The relationship of each of the Servicer and the Special
Servicer to the Trustee and to each other under this Agreement is intended by
the parties to be that of an independent contractor and not of a joint venturer,
partner or agent.
(g) With respect to each Mortgage Loan, if required by the terms
of the related Mortgage Loan, any Lock-Box Agreement or similar agreement, the
Servicer shall establish and maintain, in accordance with the Servicing
Standard, one or more lock-box, cash management or similar accounts ("Lock-Box
Accounts") to be held outside the Trust and maintained by the Servicer in
accordance with the terms of the related Mortgage. No Lock-Box Account is
required to be an Eligible Account. The Servicer shall apply the funds deposited
in such accounts in accordance with terms of the related Mortgage, any Lock-Box
Agreement and in accordance with the Servicing Standard.
(h) The Servicer shall not permit defeasance of any Mortgage Loan
on or before the second anniversary of the Closing Date unless such defeasance
will not result in an Adverse REMIC Event and the Servicer has received an
opinion of counsel to such effect and all items in the following sentence have
been satisfied. Subsequent to the second anniversary of the Closing Date, to the
extent that the Servicer can, in accordance with the related Mortgage Loan,
require defeasance of any Mortgage Loan in lieu of accepting a prepayment of
principal thereunder, including a prepayment of principal accompanied by a
Prepayment Premium or Yield Maintenance Charge, if any, the Servicer shall, to
the extent it is not inconsistent with the Servicing Standard, require such
defeasance (or partial defeasance if permitted under the related Mortgage Loan),
provided that (i) the defeasance collateral consists of U.S. Treasury
obligations, (ii) the Servicer has determined that the defeasance will not
result in an Adverse REMIC Event, (iii) either (A) the related Mortgagor
designates a Single-Purpose Entity (if the Mortgagor no longer complies) to own
the Defeasance Collateral or (B) the Servicer has established for the benefit of
the Trust a Single-Purpose Entity to hold all Defeasance Collateral relating to
the
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Defeasance Loans, and (iv) the Servicer has requested and received from the
Mortgagor (A) an opinion of counsel generally to the effect that the Trustee
will have a perfected, first priority security interest in such Defeasance
Collateral and (B) written confirmation from a firm of independent accountants
stating that payments made on such Defeasance Collateral in accordance with the
terms thereof will be sufficient to pay the subject Mortgage Loan (or the
portion thereof in connection with a partial defeasance) in full on or before
its Maturity Date (or, in the case of an ARD Loan, on or before its Anticipated
Repayment Date) and to timely pay each Scheduled Payment to be due prior thereto
but after the defeasance. If the terms of the Mortgage Loan permit the Servicer
to impose the foregoing requirements, no Rating Agency Confirmation from DCR is
required. If, however, the terms of the Mortgage Loan do not permit the Servicer
to impose such requirements, the Servicer shall obtain a Rating Agency
Confirmation from DCR and Moody's in connection with such Defeasance Loan. Any
customary and reasonable out-of-pocket expense incurred by the Servicer pursuant
to this Section 8.3(h) shall be paid by the Mortgagor of the Defeasance Loan
pursuant to the related Mortgage, Mortgage Note or other pertinent document, if
so allowed by the terms of such documents. In addition, the Servicer shall be
entitled to collect from the Mortgagor any customary fees in connection with any
defeasance or partial defeasance.
(i) The Servicer shall, as to each Mortgage Loan which is secured
by the interest of the related Mortgagor under a ground lease, promptly (and in
any event within 45 days of the Closing Date) notify the related ground lessor
of the transfer of such Mortgage Loan to the Trust pursuant to this Agreement
and inform such ground lessor that any notices of default under the related
Ground Lease should thereafter be forwarded to the Servicer.
SECTION 8.4 SUB-SERVICING. The Servicer may appoint one or more
sub-servicers (each, a "Sub-Servicer") to perform all or any portion of its
duties hereunder for the benefit of the Trustee and the Certificateholders. The
Servicer shall supervise, administer, monitor, enforce and oversee the servicing
of the applicable Mortgage Loans by any Sub-Servicer appointed by it. The terms
of any arrangement or agreement between the Servicer and a Sub-Servicer, shall
provide that such agreement or arrangement may be terminated, without cause and
without the payment of any termination fees, by the Trustee in the event such
Servicer is terminated in accordance with this Agreement. In addition, neither
the Trustee nor the Paying Agent nor the Certificateholders shall have any
direct obligation or liability (including, without limitation, indemnification
obligations) with respect to any Sub-Servicer. The Servicer shall pay the costs
of enforcement against any of its Sub-Servicers at its own expense, but shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent that such recovery exceeds all amounts due in
respect of the related Mortgage Loans or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party against whom such enforcement is
directed. Notwithstanding the provisions of any sub-servicing agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
the Servicer or a Sub-Servicer, or reference to actions taken through a
Sub-Servicer or otherwise, the Servicer shall remain obligated and liable to the
Trustee and the Certificateholders for the servicing and administering of the
applicable Mortgage Loans in accordance with (and subject to the limitations
contained within) the provisions of this Agreement without diminution of such
obligation or liability by virtue of indemnification from a Sub-Servicer and to
the same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Mortgage Loans.
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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 Wells
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 (other than any REO
Mortgage Loan), and if the related Mortgagor does not so maintain, the Servicer
shall cause to be maintained with a Qualified Insurer, (A) a Standard Hazard
Insurance Policy which does not provide for reduction due to depreciation in an
amount that is at least equal to the lesser of (i) the full replacement cost of
improvements securing such Mortgage Loan or (ii) the outstanding principal
balance of such REO Mortgage Loan, but, in any event, in an amount sufficient to
avoid the application of any co-insurance clause and (B) any other insurance
coverage for a Mortgage Loan which the related Mortgagor is required to maintain
under the related Mortgage, provided the Servicer shall not be required to
maintain earthquake insurance on any Mortgaged Property unless such insurance
was required at origination and is available at commercially reasonable rates;
provided, however, that the Special Servicer shall have the right, but not the
duty, to obtain, at its own expense, earthquake insurance on any Mortgaged
Property.
Each Standard Hazard Insurance Policy maintained with respect to
any Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
Mortgaged Property is located in a designated special flood hazard area by the
Federal Emergency Management Agency in the Federal Register, as amended from
time to time (to the extent permitted under the related Mortgage Loan or as
required by law), the Servicer (with respect to any Mortgaged Property that is
not an REO Property) shall cause flood insurance to be maintained. Such flood
insurance shall be in an amount equal to the lesser of (i) the unpaid principal
balance of the related Mortgage Loan or (ii) the maximum amount of such
insurance available for the related Mortgaged Property under the national flood
insurance program, if the area in which such Mortgaged Property is located is
participating in such program. Any amounts collected by the Servicer under any
such policies (other than amounts to be applied to the restoration or repair of
the related Mortgaged Property or property thus acquired or amounts released to
the Mortgagor in accordance with the terms of the applicable Mortgage Loan)
shall be deposited in the Certificate Account.
Any cost (such as insurance premiums and insurance broker fees
but not internal costs and expenses of obtaining such insurance) incurred by the
Servicer in maintaining any insurance pursuant to this Section 8.6 shall not,
for the purpose of calculating monthly distributions to the Certificateholders
or remittances to the Paying Agent for their benefit, be added to the principal
balance of the Mortgage Loan, notwithstanding that the terms of the
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Mortgage Loan so permit. Such costs shall be paid as a Servicing Advance by the
Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Servicer shall have no obligation
beyond using its reasonable efforts consistent with the Servicing Standard to
enforce such insurance requirements. Furthermore, the Servicer shall not be
required in any event to maintain or obtain insurance coverage beyond what is
reasonably available at a cost customarily acceptable and consistent with the
Servicing Standard. The Servicer shall notify the Trustee in the event it makes
such determination.
The Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 8.6 either (i) if the Servicer shall
have obtained and maintained a master force placed or blanket insurance policy
insuring against hazard losses on all of the applicable Mortgage Loans serviced
by it, it being understood and agreed that such policy may contain a deductible
clause on terms substantially equivalent to those commercially available and
maintained by comparable servicers consistent with the Servicing Standard, and
provided that such policy is issued by a Qualified Insurer with a minimum claims
paying ability rating of "A" (or an equivalent rating) from the Rating Agencies
or otherwise approved by the Rating Agencies or (ii) if the Servicer, provided
that its long-term rating is not less than "Baa2" by Moody's and "BBB" by DCR,
self-insures for its obligations as set forth in the first paragraph of this
Section 8.6. In the event that the Servicer shall cause any Mortgage Loan to be
covered by such a master force placed or blanket insurance policy, the
incremental cost of such insurance allocable to such Mortgage Loan (i.e., other
than any minimum or standby premium payable for such policy whether or not any
Mortgage Loan is then covered thereby), if not borne by the related Mortgagor,
shall be paid by the Servicer as a Servicing Advance. If such policy contains a
deductible clause, the Servicer shall, if there shall not have been maintained
on the related Mortgaged Property a policy complying with this Section 8.6 and
there shall have been a loss that would have been covered by such policy,
deposit in the Certificate Account the amount not otherwise payable under such
master force placed or blanket insurance policy because of such deductible
clause to the extent that such deductible exceeds (i) the deductible under the
related Mortgage Loan or (ii) if there is no deductible limitation required
under the Mortgage Loan, the deductible amount with respect to insurance
policies generally available on properties similar to the related Mortgaged
Property which is consistent with the Servicing Standard, and deliver to the
Trustee an Officer's Certificate describing the calculation of such amount. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Servicer agrees to present, on its behalf and on behalf of the
Trustee, claims under any such master force placed or blanket insurance policy.
With respect to each Mortgage Loan, the Servicer shall maintain
accurate records with respect to each related Mortgaged Property reflecting the
status of taxes, assessments and other similar items that are or may become a
lien on the related Mortgaged Property and the status of insurance premiums
payable with respect thereto. From time to time, the Servicer (other than with
respect to REO Mortgage Loans) shall (i) obtain all bills for the payment of
such items (including renewal premiums), and (ii) effect payment of all such
bills, taxes and other assessments with respect to such Mortgaged Properties
prior to the applicable penalty or termination date, in each case employing for
such purpose Escrow Amounts as allowed under the terms of the related Mortgage
Loan. If a Mortgagor fails to make any such payment on a timely
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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.
(a) In the event the Servicer receives a request from a Mortgagor
pursuant to the provisions of any Mortgage Loan (other than a Specially Serviced
Mortgage Loan) that expressly permits the assignment of the related Mortgaged
Property to, and assumption of such Mortgage Loan by, another Person, the
Servicer shall obtain relevant information for purposes of evaluating such
request. If the Servicer recommends to approve such assignment, the Servicer
shall provide to the Special Servicer a copy of such recommendation and the
materials upon which such recommendation is based and (A) the Special Servicer
shall have the right hereunder to grant or withhold consent to any such request
for such assignment and assumption in accordance with the terms of the Mortgage
Loan and this Agreement, and the Special Servicer shall not unreasonably
withhold such consent and any such decision of the Special Servicer shall be in
accordance with the Servicing Standard, (B) failure of the Special Servicer to
notify the Servicer in writing, within five Business Days following the
Servicer's delivery of the recommendation described above and the relevant loan
information on which the recommendation is based, of its determination to grant
or withhold such consent shall be deemed to constitute a grant of such consent
and (C) the Servicer shall not permit any such assignment or assumption unless
it has received the written consent of the Special Servicer or such consent has
been deemed to have been granted as described in the preceding sentence. Upon
consent or deemed consent by the Special Servicer to such proposed assignment
and assumption, the Servicer shall process such request of the related Mortgagor
and shall be authorized to enter into an assignment and assumption or
substitution agreement with the Person to whom the related Mortgaged Property
has been or is proposed to be conveyed, and/or release the original Mortgagor
from liability under the related Mortgage Loan and substitute as obligor
thereunder the Person to whom the related Mortgaged Property has been or is
proposed to be conveyed; provided, however, that the Servicer shall not enter
into any such agreement to the extent that any terms thereof would result in an
Adverse REMIC Event or create any lien on a Mortgaged Property that is senior
to, or on parity with, the lien of the related Mortgage. To the extent permitted
by applicable law, the Servicer shall not enter into such an assumption or
substitution agreement unless the credit status of the prospective new Mortgagor
is in compliance with the Servicer's regular commercial mortgage origination or
servicing standards and criteria. The Servicer shall notify the Trustee, the
Paying Agent and the Special Servicer of any assignment and assumption or
substitution agreement executed pursuant to this Section 8.7(a). The Servicer
shall be entitled to (as additional servicing compensation) 50% of any
assumption fee collected from a Mortgagor in connection with an assignment and
assumption or substitution executed pursuant to this Section 8.7(a) and the
Special Servicer shall be entitled to (as additional special servicing
compensation) the other 50% of such fee.
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(b) Other than with respect to the assignment and assumptions
referred to in subsection (a) above, if any Mortgage Loan that is not a
Specially Serviced Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, (i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale of the related
Mortgaged Property, or (ii) provides that such Mortgage Loan may not be assumed
without the consent of the related mortgagee in connection with any such sale or
other transfer, then, the Special Servicer, on behalf of the Trust, and not the
Servicer, shall either (i) enforce such due-on-sale clause or (ii) if it
believes such action would be in the best economic interest of the Trust, waive
the effect of such provision; provided, however, that if the Principal Balance
of such Mortgage Loan at such time equals or exceeds the Review Threshold, then
prior to waiving the effect of such provision, the Special Servicer shall obtain
Rating Agency Confirmations regarding such waiver. The Special Servicer shall
not waive a due-on-sale clause until and unless the Rating Agencies shall have
approved such action. With respect to a Mortgage Loan with a
"due-on-encumbrance" clause, the Servicer (with respect to Mortgage Loans that
are not Specially Serviced Mortgage Loans) and the Special Servicer (with
respect to any Specially Serviced Mortgage Loan) will be required to exercise
(or waive its right to exercise) any right it may have (i) to accelerate the
payments thereon, or (ii) to withhold its consent to the creation of any
additional lien or other encumbrance, consistent with the Servicing Standard.
However, the Servicer will not be permitted to waive a due-on-encumbrance
provision in connection with the creation of additional debt secured by the
related Mortgaged Property without (i) the consent of the Special Servicer
(except that the Special Servicer will be deemed to have consented if it does
not respond to written notice requesting such consent within five Business Days
after it has received such notice including the pertinent portions of the
related Mortgage File, or copies thereof), and (ii) obtaining a Rating Agency
Confirmation from each Rating Agency.
(c) The Special Servicer shall have no liability, and shall be
indemnified by the Trust, for any liability to the Mortgagor or the proposed
assignee, for any delay in responding to requests for assumption, if the same
shall occur as a result of the failure of the Rating Agencies, or any of them,
to respond to such request in a reasonable period of time. In connection with
the request for such consent, the Special Servicer shall prepare and deliver to
DCR and Moody's a memorandum outlining its analysis and recommendation in
accordance with the Servicing Standard, together with copies of all relevant
documentation. The Special Servicer shall also prepare and provide DCR with such
memorandum and documentation for all transfer, assumption and encumbrance
consents granted for Mortgage Loans below the Review Threshold, but for which
the Special Servicer's decision will be sufficient and a Rating Agency
Confirmation is not required. The Special Servicer shall promptly forward copies
of the assignment and assumption documents relating to any Mortgage Loan to the
Servicer, the Paying Agent and the Trustee, and the Servicer shall promptly
thereafter forward such documents to the Rating Agencies. The Special Servicer
shall be entitled to (as additional special servicing compensation) 100% of any
fee collected from a Mortgagor in connection with the Special Servicer granting
or withholding such consent.
(d) The Servicer shall have the right to consent to any transfers
of interest of a Mortgagor, to the extent such transfer is allowed under the
terms of the related Mortgage Loan, including any consent to transfer to any
subsidiary or affiliate of Mortgagor or to a person acquiring less than a
majority interest in the Mortgagor. The Servicer shall be entitled to collect
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and receive from Mortgagors any customary fees in connection with such transfers
of interest as additional servicing compensation.
(e) The Trustee for the benefit of the Certificateholders shall
execute any necessary instruments in the form presented to it by the Servicer
(pursuant to subsection (a)) or the Special Servicer (pursuant to subsection
(b)) for such assignments and assumptions agreements. Upon the closing of the
transactions contemplated by such documents, the Servicer shall cause the
originals of the assignment and assumption agreement, the release (if any), or
the modification or supplement to the Mortgage Loan to be delivered to the
Custodian (or, if there is no Custodian, the Trustee) except to the extent such
documents have been submitted to the recording office, in which event the
Servicer shall promptly deliver copies of such documents to the Custodian (or,
if there is no Custodian, the Trustee) and the Special Servicer.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE
FILES. Upon the payment in full of any Mortgage Loan, satisfaction or discharge
in full of any Specially Serviced Mortgage Loan or the receipt by the Servicer
of a notification that payment in full (or such payment, if any, in connection
with the satisfaction and discharge in full of any Specially Serviced Mortgage
Loan) will be escrowed in a manner customary for such purposes, and upon
notification to the Trustee and Custodian by the Servicer in the form of a
certification (which certification shall include a statement to the effect that
all amounts received or to be received in connection with such payment which are
required to be deposited in the Certificate Account have been or will be so
deposited) of a Servicing Officer and the delivery of a request for release of
the Trustee Mortgage File in the form of Exhibit C hereto to the Trustee and the
Custodian, 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 with respect to the Mortgaged Properties held
for the benefit of the Certificateholders. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Distribution Account but shall be paid by the Servicer except to the
extent that such expenses are paid by the related Mortgagor in a manner
consistent with the terms of the related Mortgage and applicable law. From time
to time and as shall be appropriate for the servicing of any Mortgage Loan,
including for such purpose, collection under any policy of flood insurance, any
Servicer Fidelity Bond or Errors or Omissions Policy, or for the purposes of
effecting a partial or total release of any Mortgaged Property from the lien of
the Mortgage or the making of any corrections to the Mortgage Note or the
Mortgage or any of the other documents included in the Trustee Mortgage File,
the Custodian (or, if there is no Custodian, the Trustee) shall, upon request of
the Servicer and the delivery to the Trustee and Custodian 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.
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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, to the extent required by this Agreement,
all documents and instruments coming into the possession of the Servicer from
time to time and shall account fully to the Trustee and Paying Agent for any
funds received or otherwise collected thereby, including Liquidation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Servicer Mortgage Files
and funds collected or held by, or under the control of, the Servicer in respect
of any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds or Insurance Proceeds, including any funds
on deposit in the Certificate Account, shall be held by the Servicer for and on
behalf of the Trustee and the Certificateholders and shall be and remain the
sole and exclusive property of the Trustee, subject to the applicable provisions
of this Agreement. The Servicer agrees that it shall not create, incur or
subject any Servicer Mortgage Files or Trustee Mortgage File or any funds that
are deposited in the Certificate Account or any Escrow Account, or any funds
that otherwise are or may become due or payable to the Trustee or the Paying
Agent, to any claim, lien, security interest, judgment, levy, writ of attachment
or other encumbrance, or assert by legal action or otherwise any claim or right
of setoff against any Servicer Mortgage Files or Trustee Mortgage File or any
funds collected on, or in connection with, a Mortgage Loan, except, however,
that the Servicer shall be entitled to receive from any such funds any amounts
that are properly due and payable to the Servicer under this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the Servicer
shall be entitled to the Servicing Fee, which shall be payable by the Trust from
amounts held in the Certificate Account or otherwise collected from the Mortgage
Loans as provided in Section 5.2.
(b) Additional servicing compensation in the form of assumption
fees, defeasance fees, partial defeasance fees, extension fees, servicing fees,
default interest payable at a rate above the Mortgage Rate, Modification Fees,
forbearance fees, Late Fees (net of Advance Interest) or other usual and
customary charges and fees actually received from Mortgagors shall be retained
by the Servicer, provided that the Servicer shall be entitled to (i) receive 50%
of assumption fees collected on Mortgage Loans as provided in Section 8.7(a),
(ii) Modification Fees as provided in Section 8.18 hereof; and (iii) 100% of any
extension fees collected from the related Mortgagor in connection with the
extension of the Maturity Date of any Mortgage Loan as provided in Section 8.18;
provided, however, that the Servicer shall not be entitled to any such fees 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.
(c) Notwithstanding any other provision herein, the Servicing Fee
for each monthly period relating to each Determination Date shall be reduced by
an amount equal to the Compensating Interest (if any) relating to Mortgage Loans
which are not Specially Serviced Mortgage Loans for such Determination Date.
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(d) The Servicer shall also be entitled to additional servicing
compensation of (i) an amount equal to the excess, if any, of the aggregate
Prepayment Interest Excess relating to Mortgage Loans which are not Specially
Serviced Mortgage Loans for each Distribution Date over the aggregate Prepayment
Interest Shortfalls for such Mortgage Loans for such Distribution Date, (ii)
interest or other income earned on deposits in the Certificate Account and the
Distribution Account (but only to the extent of the net investment earnings, if
any, with respect to each such account), and, (iii) to the extent not required
to be paid to any Mortgagor under applicable law, any interest or other income
earned on deposits in the Escrow Accounts.
SECTION 8.11 SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) For each Distribution Date, (i) the Servicer shall deliver to
the Paying Agent, no later than the related Report Date, the Servicer Remittance
Report 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 Rating Agencies, the
Trustee, the Paying Agent, the Special Servicer and the Depositor within 30 days
after receipt any annual, monthly or quarterly financial statements the Servicer
receives from any Mortgagor relating to the Mortgage Loans. 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.
(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.
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 2000, 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
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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 2000, the Servicer shall cause a firm of nationally recognized
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Depositor, the
Operating Adviser and the Trustee to the effect that such firm has examined
certain documents and records relating to the servicing of the Mortgage Loans
and that, on the basis of such examination conducted substantially in compliance
with the Uniform Single Attestation Program for Mortgage Bankers ("USAP") or the
Audit Program for Mortgages serviced for FHLMC (the "FHLMC Audit Program"), the
servicing for the preceding calendar year has been conducted in compliance with
such agreements except for such significant exceptions or errors in records
that, in the opinion of such firm, the USAP or FHLMC Audit Program require it to
report. The Servicer shall forward a copy of each such report to the Rating
Agencies.
SECTION 8.14 ANNUAL REPORTS REGARDING THE MORTGAGED PROPERTIES.
Not later than the Report Date occurring in July of each year, beginning in July
2000, the Servicer shall deliver to the Trustee, the Placement Agents, the
Underwriters, the Rating Agencies, any Operating Adviser and the Depositor an
Annual Report for each Mortgage Loan, 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. In addition, upon request
the Servicer shall make available to the Special Servicer, the Paying Agent and
the Trustee, within 30 days following receipt thereof by the Servicer, copies of
any operating statements and rent rolls collected with respect to the Mortgaged
Properties. As and to the extent reasonably requested by the Special Servicer,
the Servicer shall make inquiry of any Mortgagor with respect to such
information or as regards the performance of the related Mortgage Property in
general. The Paying Agent shall provide or make available either electronically
or, if requested by a Certificateholder or Certificate Owner in writing, by
first class mail at no cost to such Certificateholder or Certificate Owner, of
such Annual Reports pursuant to Section 5.4(a).
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF
THE SERVICER.
(a) Subject to paragraphs (b), (c) and (d) below, the Servicer
shall make available at its offices primarily responsible for servicing the
Mortgage Loans, during normal business hours, upon reasonable advance written
notice for review by any Certificateholder, any Certificate Owner, any Placement
Agent, any Underwriter, each Rating Agency, the Paying Agent or the Depositor,
originals or copies of, among other things, the following items: (i) this
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Agreement and any amendments thereto, (ii) all final and released Annual Reports
and the Servicer Remittance Reports, (iii) all Officer's Certificates (including
Officer's Certificates evidencing any determination of Nonrecoverable Advances)
delivered to the Trustee and the Paying Agent since the Closing Date, (iv) all
accountants' reports delivered to the Trustee and the Paying Agent since the
Closing Date, (v) the most recent property Inspection Reports in the possession
of the Servicer in respect of each Mortgaged Property, (vi) the most recent
Mortgaged Property annual operating statement and rent roll, if any, collected
by or on behalf of the Servicer or the Special Servicer, (vii) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Servicer and/or the Special Servicer, (viii) any Appraisal obtained
by the Special Servicer, and (ix) any and all Officers' Certificates (and
attachments thereto) delivered to the Trustee and the Paying Agent to support
the Servicer's determination that any Advance was not or, if made, would not be,
recoverable. The Servicer will be permitted to require payment of a sum to be
paid by the requesting party (other than the Rating Agencies, the Trustee, the
Paying Agent, Placement Agents or Underwriters) sufficient to cover the
reasonable costs and expenses of making such information available.
(b) Subject to the restrictions described below, the Servicer
shall afford the Rating Agencies, the Depositor, the Trustee, the Paying Agent,
the Special Servicer, the Placement Agents, the Underwriters, the Operating
Adviser, any Certificateholder or Certificate Owner, upon reasonable notice and
during normal business hours, reasonable access to all information referred to
in Section 8.15(a) and any additional relevant, non-attorney-client-privileged
records and documentation regarding the applicable Mortgage Loans, REO Property
and all accounts, insurance policies and other relevant matters relating to this
Agreement, and access to Servicing Officers of the Servicer responsible for its
obligations hereunder. Copies of information or access will be provided to
Certificateholders and each Certificate Owner providing satisfactory evidence of
ownership of Certificates or beneficial ownership of a Certificate, as the case
may be. Copies (or computer diskettes or other digital or electronic copies of
such information if reasonably available in lieu of paper copies) of any and all
of the foregoing items shall be made available by the Servicer upon request;
provided, however, that the Servicer shall be permitted to require payment by
the requesting party (other than the Depositor, the Trustee, the Paying Agent,
the Special Servicer either Placement Agent, either 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, included in any communication
from the Special Servicer or Mortgagor. 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, either Placement Agent, either 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
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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 any ad hoc non-standard written reports with respect to such Mortgage
Loans. 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, either 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 Stearns
Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF2 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
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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, either Placement Agent, the Underwriters, any Rating Agency and/or
the Certificateholders and Certificate Owners. The Servicer will be permitted to
require payment of a sum to be paid by the requesting party (other than the
Rating Agencies, the Trustee, the Paying Agent, Placement Agents or
Underwriters) sufficient to cover the reasonable costs and expenses of making
such information available.
SECTION 8.17 INSPECTIONS. The Servicer shall, at its own expense,
inspect or cause to be inspected each Mortgaged Property other than Mortgaged
Properties related to Specially Serviced Mortgage Loans, every calendar year
beginning in 2000, or every second calendar year beginning in 2000 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 Rating Agencies,
the Placement Agents, the Underwriters, the Depositor, the Trustee and the
Special Servicer. The Special Servicer shall have the right to inspect or cause
to be inspected (at its own expense) every calendar year any Mortgaged Property
related to a Mortgage Loan that is not a Specially Serviced Mortgage Loan,
provided that the Special Servicer notifies the Servicer prior to such
inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND
CONSENTS.
Subject to the limitations of Section 12.3 hereof, the Servicer
shall have the following powers:
(a) (i) The Servicer in accordance with the Servicing Standard
may agree to any modification, waiver, amendment or consent of or relating to
any term other than a Money Term (or, with the consent of the Special Servicer
and satisfaction of the provisions of Section 9.39, a Money Term) of a Mortgage
Loan that is not a Specially Serviced Mortgage Loan, provided that such
amendment would not result in an Adverse REMIC Event; and provided, further that
if any consent relates to a release of a letter of credit relating to any
Mortgage Loan, then (i) the Servicer shall notify the Special Servicer of any
Mortgagor's request to release such letter of credit which the Servicer
recommends to release, and (ii) if the terms of the related Mortgage
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Loan do not require the Servicer to approve such release, then the Special
Servicer shall within five days provide notice to the Servicer on whether the
Servicer should approve the release and the failure of the Special Servicer to
give the Servicer such notice shall automatically be deemed to be an approval by
the Special Servicer that the Servicer should grant such release.
Notwithstanding the preceding sentence, from and after the date on which neither
the Servicer nor an Affiliate of the Servicer has an interest in any of the
Class G, Class H, Class I, Class J, Class K, Class L and Class M Certificates,
if any such proposed modification, waiver, amendment or consent is deemed
material by the Servicer in its reasonable discretion and the Servicer
recommends to approve such modification, waiver, amendment or consent, the
Servicer shall provide to the Special Servicer a copy of the Servicer's
recommendation and the relevant information obtained or prepared by the Servicer
in connection therewith and (A) the Special Servicer shall have the right
hereunder to grant or withhold consent to any such proposed modification,
waiver, amendment or consent, and such consent of the Special Servicer shall not
be unreasonably withheld, consistent with the Servicing Standard, (B) failure of
the Special Servicer to notify the Servicer, within five Business Days following
the Servicer's delivery of the recommendation described above, of its
determination to grant or withhold such consent shall be deemed to constitute a
grant of such consent and (C) the Servicer shall not enter into any such
proposed modification, waiver, amendment or consent unless it has received the
written consent of the Special Servicer or such consent has been deemed to have
been granted as described above. In any event, the Servicer shall promptly
notify the Special Servicer of any material modification, waiver, amendment or
consent executed by the Servicer pursuant to this Section 8.18(a)(i) and provide
to the Special Servicer a copy thereof.
(ii) The Servicer may, without the consent of the Special
Servicer, extend the maturity date of any Balloon Mortgage Loan that is not a
Specially Serviced Mortgage Loan to a date that is not more than 60 days
following the original Maturity Date, if in the Servicer's sole judgment
exercised in good faith (and evidenced by an Officer's Certificate), a default
in the payment of the Balloon Payment is reasonably foreseeable and such
extension is reasonably likely to produce a greater recovery on a net present
value basis than liquidation of such Mortgage Loan. The Servicer shall process
all such extensions and shall be entitled to (as additional servicing
compensation) 100% of any extension fees collected from a Mortgagor with respect
to any such extension.
(b) The Servicer may require, in its discretion, as a condition
to granting any request by a Mortgagor for any consent, modification, waiver or
amendment, that such Mortgagor pay to the Servicer a reasonable and customary
modification fee to the extent permitted by law. The Servicer may charge the
Mortgagor for any costs and expenses (including attorney's fees) incurred by the
Servicer in connection with any request for a modification, waiver or amendment.
The failure or inability of the Mortgagor to pay any such costs and expenses
shall not impair the right of the Servicer to cause such costs and expenses, and
interest thereon at the Advance Rate, to be paid or reimbursed by the Trust as a
Servicing Advance (to the extent not paid by the Mortgagor).
(c) The Servicer shall notify the Trustee, the Paying Agent and
the Special Servicer of any modification, waiver or amendment of any term of any
Mortgage Loan permitted by it under this Section and the date thereof, and shall
deliver to the Trustee for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification,
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waiver or amendment, promptly following the execution thereof except to the
extent such documents have been submitted to the applicable recording office, in
which event the Servicer shall promptly deliver copies of such documents to the
Trustee. The Servicer shall not agree to any modification, waiver, or amendment
of any Money Term of a Mortgage Loan or any term of a Specially Serviced
Mortgage Loan.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Servicer shall send a written notice to the Special
Servicer, the Rating Agencies, the Paying Agent and the Trustee within two
Business Days after becoming aware of a Servicing Transfer Event with respect to
a Mortgage Loan, which notice shall identify the related Mortgage Loan and set
forth in reasonable detail the nature and relevant facts of such Servicing
Transfer Event and, except for the Rating Agencies, the Paying Agent and the
Trustee, shall be accompanied by a copy of the Servicer Mortgage File.
(b) Prior to the transfer of the servicing of any Specially
Serviced Mortgage Loan to the Special Servicer, the Servicer shall notify the
related Mortgagor of such transfer in accordance with the Servicing Standard
(the form and substance of such notice shall be reasonably satisfactory to the
Special Servicer).
(c) Any calculations or reports prepared by the Servicer to the
extent they relate to Specially Serviced Mortgage Loans shall be based on
information supplied to the Servicer in writing by the Special Servicer as
provided hereby. The Servicer shall have no duty to investigate or confirm the
accuracy of any information provided to it by the Special Servicer and shall
have no liability for the inaccuracy of any of its reports due to the inaccuracy
of the information provided by the Special Servicer.
(d) On or prior to each Distribution Date, the Servicer shall
provide to the Special Servicer, in order for the Special Servicer to comply
with its obligations under this Agreement, such information (and in the form and
medium) as the Special Servicer may reasonably request in writing from time to
time, provided that (i) the Servicer shall not be required to produce any ad hoc
reports or incur any unusual expense or effort in connection therewith and (ii)
if the Servicer elects to provide such ad hoc reports, it may require the
Special Servicer to pay a reasonable fee to cover the costs of the preparation
thereof.
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SERVICER.
(a) The Servicer hereby represents and warrants to and covenants
with the Trustee, as of the date hereof:
(i) the Servicer is duly organized, validly existing and
in good standing as a national banking association under the laws of the United
States, and shall be and thereafter remain, in compliance with the laws of each
State in which any Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement, except where the failure to so
qualify or comply would not adversely affect the Servicer's ability to perform
its obligations hereunder in accordance with the terms of this Agreement;
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(ii) the Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Servicer has duly and validly
authorized the execution, delivery and performance of this Agreement and this
Agreement has been duly executed and delivered by the Servicer; and this
Agreement, assuming the due authorization, execution and delivery thereof by the
Depositor, the Trustee, the Fiscal Agent, the Paying Agent and the Special
Servicer, evidences the valid and binding obligation of the Servicer enforceable
against the Servicer in accordance with its terms subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium,
receivership and other similar laws affecting creditors' rights generally as
from time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to the Servicer's
knowledge, threatened, against it, that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the same or will
obtain the same prior to the time necessary to perform its obligations under
this Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder;
and
(vi) the performance of the services by the Servicer
contemplated by this Agreement are in the ordinary course of business of the
Servicer.
(b) It is understood that the representations and warranties set
forth in this Section 8.20 shall survive the execution and delivery of this
Agreement.
(c) Any cause of action against the Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon discovery of such breach by any of the Trustee or the Servicer. The
Servicer shall give prompt notice to the Trustee, the Depositor and the Special
Servicer of the occurrence, or the failure to occur, of any event that,
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with notice or the passage of time or both, would cause any representation or
warranty in this Section to be untrue or inaccurate in any respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which the
Servicer may be merged or consolidated, or any Person resulting from any merger,
conversion, other change in form or consolidation to which the Servicer shall be
a party, or any Person succeeding to the business of the Servicer, shall be the
successor of the Servicer hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto; provided,
however, that each of the Rating Agencies provides a Rating Agency Confirmation.
If the conditions to the provisions in the foregoing sentence are not met, the
Trustee may terminate the Servicer's servicing of the Mortgage Loans pursuant
hereto, such termination to be effected in the manner set forth in Sections 8.28
and 8.29.
SECTION 8.22 RESIGNATION OF SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof, the
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Servicer shall be evidenced by
an Opinion of Counsel to such effect delivered to the Trustee. No such
resignation shall become effective until a successor servicer designated by the
Trustee, with the consent of the Depositor, shall have assumed the Servicer's
responsibilities and obligations under this Agreement and Rating Agency
Confirmation shall have been obtained. Notice of such resignation shall be given
promptly by the Servicer to the Trustee.
(b) The Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee, provided that (i) a successor
servicer (x) is available, (y) has assets of at least $15,000,000 and (z) is
willing to assume the obligations, responsibilities, and covenants to be
performed hereunder by the Servicer on substantially the same terms and
conditions, and for not more than equivalent compensation to that herein
provided; (ii) the Servicer bears all costs associated with its resignation and
the transfer of servicing; and (iii) Rating Agency Confirmation is obtained with
respect to such servicing transfer, as evidenced by a letter delivered to the
Trustee by each Rating Agency.
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY SERVICER. The
Servicer shall have the right without the prior written consent of the Trustee
to (A) delegate or subcontract with or authorize or appoint anyone, or delegate
certain duties to other professionals such as attorneys and appraisers, as an
agent of the Servicer or Sub-Servicers (as provided in Section 8.4) to perform
and carry out any duties, covenants or obligations to be performed and carried
out by the Servicer hereunder or (B) assign and delegate all of its duties
hereunder; provided, however, that with respect to clause (B), (i) the Servicer
gives the Depositor, the Special Servicer and the Trustee notice of such
assignment and delegation; (ii) such purchaser or transferee accepting such
assignment and delegation executes and delivers to the Depositor and the Trustee
an agreement accepting such assignment, which contains an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named as a party
to this Agreement; (iii) the purchaser or transferee has assets in
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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 in accordance with this Agreement; provided
that the Servicer may in its sole discretion undertake any such action which it
may reasonably deem necessary or desirable in order to protect the interests of
the Certificateholders and the Trustee in the Mortgage Loans (subject to the
Special Servicer's servicing of Specially Serviced Mortgage Loans as
contemplated herein), or shall undertake any such action if instructed to do so
by the Trustee. In such event, all legal expenses and costs of such action
(other than those that are connected with the routine performance by the
Servicer of its duties hereunder) shall be expenses and costs of the Trust, and
the Servicer shall be entitled to be reimbursed therefor as Servicing Advances
as provided by Section 5.2, subject to the provisions of Section 4.4 hereof.
(b) In addition, the Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to, the truth of
the statements and the correctness of the opinions expressed in any certificates
or opinions furnished to the Servicer and conforming to the requirements of this
Agreement. Subject to the Servicing Standard, the Servicer shall have the right
to rely on information provided to it by the Special Servicer and Mortgagors,
and will have no duty to investigate or verify the accuracy thereof. Neither the
Servicer, nor any director, officer, employee, agent or Affiliate, shall be
personally liable for any error of judgement made in good faith by any officer,
unless it shall be proved that the Servicer or such officer was negligent in
ascertaining the pertinent facts. Neither the Servicer nor any director,
officer,
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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 hereunder in good faith and in accordance with
such advice or Opinion of Counsel.
(e) The Servicer and any director, officer, employee or agent of
the Servicer shall be indemnified by the Trustee, the Fiscal Agent, the Paying
Agent and the Special Servicer, as the case may be, and held harmless against
any loss, liability or expense including reasonable attorneys' fees incurred in
connection with any legal action relating to the Trustee's, Fiscal Agent's, the
Paying Agent or the Special Servicer's, as the case may be, respective willful
misfeasance, bad faith or negligence in the performance of its respective duties
hereunder or by reason of negligent disregard of its respective duties
hereunder, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Servicer's duties hereunder or by reason of negligent disregard of the
Servicer's obligations and duties hereunder. The Servicer shall immediately
notify the Trustee and Paying Agent if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Servicer to
indemnification hereunder, whereupon the Trustee or the Paying Agent, as
applicable, may assume the defense of any such claim (with counsel reasonably
satisfactory to the Servicer) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Trustee or Paying Agent shall not affect any rights the
Servicer or the Trust may have to indemnification under this Agreement or
otherwise, unless the Trustee's or the Paying Agent's defense of such claim is
materially prejudiced thereby. Such indemnity shall survive the termination of
this Agreement or the resignation or removal of the Servicer hereunder. Any
payment hereunder made by the Trustee, the Fiscal Agent or the Paying Agent
pursuant to this paragraph to the Servicer shall be paid from the Trustee's,
Fiscal Agent's or Paying Agent's own funds, without reimbursement from the Trust
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therefor except achieved through subrogation as provided in this Agreement. Any
expenses incurred or indemnification payments made by the Trustee, the Fiscal
Agent or Paying Agent shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final judgment that the conduct of the Trustee,
the Fiscal Agent or Paying Agent, as the case may be was not culpable or found
to have acted with willful misfeasance, bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Servicer and any director, officer, employee or agent of
the Servicer shall be indemnified by the Trust and held harmless against any and
all claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to this Agreement, any Mortgage Loans,
any REO Property or the Certificates or any exercise of any right under this
Agreement reasonably requiring the use of counsel or the incurring of expenses
other than any loss, liability or expense incurred by reason of the Servicer's
willful misfeasance, bad faith or negligence in the performance of duties
hereunder. The Servicer shall promptly notify the Trustee and the Paying Agent
if a claim is made by a third party with respect to this Agreement or the
Mortgage Loans entitling the Servicer to indemnification hereunder, whereupon
the Trustee, on behalf of the Trust, shall assume the defense of any such claim
(with counsel reasonably satisfactory to the Servicer) and out of the Trust pay
all expenses in connection therewith, including counsel fees, and out of the
Trust promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Trustee and the Paying Agent shall not affect any rights the Servicer may
have to indemnification under this Agreement or otherwise, unless the Trust is
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement. The Trustee, the Paying Agent or the Servicer
shall promptly make from the Certificate Account any payments certified by the
Servicer to the Trustee and the Paying Agent as required to be made to the
Servicer pursuant to this Section 8.25.
(b) The Servicer agrees to indemnify the Trustee, the Fiscal
Agent, the Special Servicer, the Paying Agent, the Trust, the Depositor, and any
director, officer, employee, agent or Controlling Person thereof, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trustee, the Fiscal Agent, the Special Servicer, the
Paying Agent, the Depositor, and the Trust may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance of
any of the Servicer's duties hereunder or by reason of negligent disregard of
the Servicer's obligations and duties hereunder (including a breach of such
obligations a substantial motive of which is to obtain an economic advantage
from being released from such obligations), and if in any such situation the
Servicer is replaced, the parties hereto agree that the amount of such claims,
losses, penalties, fines, legal fees and related costs, judgments, and other
costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor servicer. The Trustee, the Fiscal Agent,
the Special Servicer, the Paying Agent, or the Depositor, as applicable, shall
immediately notify the Servicer if a claim is made by any Person with respect to
this Agreement or the Mortgage Loans entitling the Trustee, the Fiscal Agent,
the Depositor, the Special Servicer, the Paying Agent, or the Trust to
indemnification under this Section 8.25(b), whereupon the Servicer shall assume
the defense of any such claim (with counsel reasonably satisfactory to the
Trustee, the Fiscal Agent,
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the Special Servicer, the Paying Agent, or the Depositor, as applicable) and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Servicer shall not
affect any rights the Trustee, the Fiscal Agent, the Special Servicer, the
Paying Agent, the Depositor, or the Trust may have to indemnification under this
Agreement or otherwise, unless the Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the resignation or termination of the
Servicer, the Fiscal Agent, the Special Servicer, the Paying Agent, and the
Trustee. Any expenses incurred or indemnification payments made by the Servicer
shall be reimbursed by the party so paid, if a court of competent jurisdiction
makes a final, non-appealable judgment that the conduct of the Servicer was not
culpable or that the Servicer did not act with willful misfeasance, bad faith or
negligence.
(c) The Servicer shall indemnify and hold harmless the Trust, the
Trustee, the Fiscal Agent and the Paying Agent, and each of their respective
directors, each of its officers, employees, agents and any Controlling Person of
the Fiscal Agent, the Trustee or the Paying Agent from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Trust, the Trustee, Fiscal Agent or the Paying Agent, or any such
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
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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 and file on behalf of the Depositor periodic reports
with respect to the Trust as required by the Exchange Act and the Rules and
Regulations of the Securities and Exchange Commission thereunder. The Paying
Agent shall file any such items that have not been received in such
EDGAR-compatible format and shall convert any items to such format. Such EDGAR
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, 2000, the Depositor shall pay
the Paying Agent before January 31 of each year a fee of $5,000 as compensation
for preparing and filing such reports.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. The Servicer shall
act in accordance with this Agreement and the REMIC Provisions and related
provisions of the Code in order to create or maintain the status of the three
REMICs as REMICs under the Code. The Servicer shall use its best efforts to take
no action or cause any REMIC to take any action that could (i) endanger the
status of any REMIC as a REMIC under the Code or (ii) result in the imposition
of a tax upon any REMIC (including, but not limited to, the tax on prohibited
transactions as defined in Code Section 860F(a)(2) or on prohibited
contributions pursuant to Section 860G(d)).
SECTION 8.28 TERMINATION.
(a) The obligations and responsibilities of the Servicer created
hereby (other than the obligation of the Servicer to make payments to the Paying
Agent as set forth in Section 8.29 and the obligations of the Servicer to the
Trustee, Fiscal Agent, the Paying Agent, the Special Servicer and the Trust)
shall terminate on the date which is (i) the later of (A) the final payment or
other liquidation of the last Mortgage Loan remaining outstanding or (B) the
disposition of all REO Property, (ii) if an Event of Default described in
clauses 8.28(b)(ii), (iii) or (iv) has occurred, 60 days following the date on
which the Trustee or Depositor gives written notice to the Servicer that the
Servicer is terminated or (iii) if an Event of Default described in clauses
8.28(b)(i), (v), (vi) or (vii) has occurred, immediately upon the date on which
the Trustee or the Depositor gives written notice to the Servicer that the
Servicer is terminated. After any Event of Default, the Trustee (i) may elect to
terminate the Servicer by providing such notice, and (ii) shall provide such
notice if holders of Certificates representing more than 25% of the Certificate
Balance of all Certificates so direct the Trustee.
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(b) "Event of Default," wherever used herein, means any one of
the following events:
(i) any failure by the Servicer to remit to the Paying
Agent any payment required to be remitted by the Servicer under the terms of
this Agreement, including any required Advances; or
(ii) any failure on the part of the Servicer duly to
observe or perform in any material respect any other of the duties, covenants or
agreements on the part of the Servicer contained in this Agreement which
continues unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Depositor or the Trustee; provided, however, that if the
Servicer certifies to the Trustee and the Depositor that the Servicer is in good
faith attempting to remedy such failure, such cure period will be extended to
the extent necessary to permit the Servicer to cure such failure; provided,
further that such cure period may not exceed 90 days; or
(iii) any breach of the representations and warranties
contained in Section 8.20 hereof that materially and adversely affects the
interest of any holder of any Class of Certificateholders and that continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the Servicer
by the Depositor or the Trustee, provided, however, that if the Servicer
certifies to the Trustee and the Depositor that the Servicer is in good faith
attempting to remedy such breach, such cure period will be extended to the
extent necessary to permit the Servicer to cure such breach; provided, further
that such cure period may not exceed 90 days; or
(iv) the Trustee shall have received written notice from
either Rating Agency that the continuation of the Servicer in such capacity
would result in the downgrade, qualification (including the placement of any
rated Certificate on "credit watch" or the equivalent) or withdrawal of any
rating then assigned by that Rating Agency to any Class of Certificates; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of 60 days;
or
(vi) the Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings relating to the Servicer or relating to all
or substantially all of its property; or
(vii) the Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors,
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voluntarily suspend payment of its obligations, or take any corporate action in
furtherance of the foregoing.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
8.28(a), specifying the Servicer Remittance Date upon which the final transfer
by the Servicer to the Paying Agent shall be made, shall be given promptly in
writing by the Servicer to the Trustee and the Paying Agent no later than the
later of (i) five Business Days after the final payment or other liquidation of
the last Mortgage Loan or (ii) the sixth day of the month of such final
distribution. Upon any such termination, the duties of the Servicer (other than
the obligation of the Servicer to pay to the Paying Agent the amounts remaining
in the Certificate Account as set forth below and the obligations of the
Servicer to the Trustee and the Trust and the Fiscal Agent as provided herein)
shall terminate and the Servicer shall transfer to the Paying Agent the amounts
remaining in the Certificate Account after making the withdrawals permitted to
be made pursuant to Section 5.2 and shall thereafter terminate the Certificate
Account and any other account or fund maintained with respect to the Mortgage
Loans.
(b) On the date specified in a written notice of termination
given to the Servicer pursuant to clause (ii) of Section 8.28(a), or on the date
on which a written notice of termination is given to the Servicer pursuant to
clause (iii) of Section 8.28(a) all authority, power and rights of the Servicer
under this Agreement, whether with respect to the Mortgage Loans or otherwise,
shall terminate; provided that in no event shall the termination of the Servicer
be effective until a successor servicer shall have succeeded the Servicer as
successor servicer, notified the Servicer of such designation, a Rating Agency
Confirmation shall have been obtained from each Rating Agency with respect to
such designation, and such successor servicer shall have assumed the Servicer's
obligations and responsibilities, as set forth in an agreement substantially in
the form hereof, with respect to the Mortgage Loans. Except as provided in the
next sentence, the Trustee may not succeed the Servicer as servicer until and
unless it has satisfied the provisions that would apply to a Person succeeding
to the business of the Servicer pursuant to Section 8.22(b) hereof.
Notwithstanding the foregoing sentence, in the event that the Servicer is
terminated as a result of an event described in Section 8.28(b)(v), 8.28(b)(vi)
or 8.28(b)(vii), the Trustee shall act as successor servicer immediately upon
delivery of a notice of termination to the Servicer and shall use its best
efforts within 90 days of assuming the duties of the Servicer, either to satisfy
the conditions of Section 8.22(b) hereof or to transfer the duties of the
Servicer to a successor servicer who has satisfied such conditions. The Trustee
is hereby authorized and empowered to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents or otherwise. The Servicer agrees to cooperate with the
Trustee, the Paying Agent and the Fiscal Agent in effecting the termination of
the Servicer's responsibilities and rights hereunder as Servicer including,
without limitation, notifying Mortgagors of the assignment of the servicing
function and providing the Trustee all documents and records in electronic or
other form reasonably requested by it to enable the successor servicer
designated by the Trustee to assume the Servicer's functions hereunder and to
effect the transfer to such successor for administration by it of all amounts
which shall at the time be or should have been deposited by
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the Servicer in the Certificate Account and any other account or fund maintained
or thereafter received with respect to the Mortgage Loans.
(c) If the Servicer receives a written notice of termination
pursuant to clause (ii) of Section 8.28(a) and such written notice of
termination relates solely to an Event of Default specified in Section
8.28(b)(iv), and if the Servicer provides the Trustee with the appropriate
"request for proposal" materials within five Business Days after receipt of such
written notice of termination, then the Trustee shall promptly thereafter (using
such "request for proposal" materials provided by the Servicer) solicit good
faith bids for the rights to service the Mortgage Loans under this Agreement
from at least three Qualified Bidders or, if three Qualified Bidders cannot be
located, then from as many persons as the Trustee can determine are Qualified
Bidders. At the Trustee's request, the Servicer shall supply the Trustee with
the names of Persons from whom to solicit such bids. In no event shall the
Trustee be responsible if less than three Qualified Bidders submit bids for the
right to service the Mortgage Loans under this Agreement.
Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Servicer, and to
agree to be bound by the terms hereof, not later than 30 days after termination
of the Servicer hereunder. The Trustee shall solicit bids (i) on the basis of
such successor Servicer retaining all Sub-Servicers to continue the primary
servicing of the Mortgage Loans pursuant to the terms of the respective
sub-servicing agreements and to enter into a sub-servicing agreement with the
terminated Servicer to service each of the Mortgage Loans not already subject to
a sub-servicing agreement at a servicing fee rate per annum equal to the
Servicing Fee Rate minus three basis points per Mortgage Loan serviced (each a
"Servicing Retained Bid") and (ii) on the basis of terminating each
sub-servicing agreement and sub-servicer (each a "Servicing Released Bid"). The
Trustee shall select the Qualified Bidder with the highest cash Servicing
Retained Bid (or, if none, the highest cash Servicing Released Bid) (the
"Successful Bidder") to act as successor Servicer hereunder. The Trustee shall
direct the Successful Bidder to enter into this Agreement as successor Servicer
pursuant to the terms hereof (and, if the successful bid was a Servicing
Retained Bid, to enter into a Sub-Servicing Agreement with the terminated
Servicer as contemplated above), not later than 30 days after the termination of
the Servicer hereunder, and in connection therewith to deliver the amount of the
Successful Bidder's cash bid to the Trustee by wire transfer of immediately
available funds to an account specified by the Trustee no later than 10:00 a.m.
New York City time on the date specified for the assignment and assumption of
the servicing rights hereunder.
Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Servicer the
amount of such cash bid received from the Successful Bidder (net of
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Servicer no later than 1:00 p.m. New York
City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
If the Successful Bidder has not entered into this Agreement as
successor Servicer within 30 days after the termination of the Servicer
hereunder or no Successful Bidder was
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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.
(a) For and on behalf of the Certificateholders and the Trustee,
the Special Servicer shall service the Specially Serviced Mortgage Loans and
manage the related REO Properties in accordance with the provisions of this
Agreement and the Servicing Standard.
(b) The Special Servicer shall cooperate with the Servicer and
provide the Servicer with the information reasonably requested by the Servicer,
in writing, to the extent required to allow the Servicer to perform its
servicing obligations with respect to the Specially Serviced Mortgage Loans
hereunder; provided, however, that (i) the Special Servicer shall not be
required to produce any ad hoc reports or incur any unusual expense or effort in
connection therewith and (ii) if the Special Servicer elects to provide such ad
hoc reports, the Special Servicer may require the Servicer to pay a reasonable
fee to cover the costs of the preparation thereof. The Special Servicer's
obligations with respect to the servicing of any Specially Serviced Mortgage
Loan and any related REO Properties shall terminate when such Specially Serviced
Mortgage Loan has become a Rehabilitated Mortgage Loan, unless and until another
Servicing Transfer Event with respect to such Rehabilitated Mortgage Loan
occurs.
(c) The Special Servicer shall send a written notice to the
Servicer and the Paying Agent within two Business Days (or sooner, if required
by the Servicing Standard) after becoming aware that a Mortgage Loan has become
a Rehabilitated Mortgage Loan, which notice shall identify the applicable
Mortgage Loan. Upon the receipt of such notice by the Servicer and the Paying
Agent, such Mortgage Loan shall become a Rehabilitated Mortgage Loan and will be
serviced by the Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with
respect to a Mortgage Loan and upon the reasonable request of the Special
Servicer, the Servicer shall mark its records for such Mortgage Loan to cause
any monthly statements for amounts due on such Mortgage Loan to be sent
thereafter to the Special Servicer rather than the related Mortgagor. Upon
receipt of any such monthly statement, the Special Servicer shall, within two
Business Days, advise the Servicer of any changes to be made, and return the
monthly statement to the Servicer. The Servicer shall thereafter promptly send
the corrected monthly statement to the Mortgagor. If a Mortgage Loan becomes a
Rehabilitated Mortgage Loan, the Servicer shall send the monthly statement to
the Mortgagor as it did before such Mortgage Loan became a Specially Serviced
Mortgage Loan.
(e) All amounts collected by the Servicer with respect to a
Specially Serviced Mortgage Loan (other than a Mortgage Loan that has become an
REO Property) shall be
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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.
(f) The Special Servicer covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by the
Special Servicer and used by the Special Servicer in the course of operation or
management of, or the compiling, reporting or generation of date required by
this Agreement will not contain any deficiency (x) in the ability of such
software or hardware to identify correctly or perform calculations or other
processing with respect to dates after December 31, 1999 or (y) that would cause
such software to be fit no longer for the purpose for which it was intended by
reason of the changing of the date from 1999 to 2000.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY OF SPECIAL SERVICER. The Special Servicer, at its expense, shall maintain
in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance
Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity
Bond shall be issued by a Qualified Insurer (unless the Special Servicer self
insures as provided below) and be in form and amount consistent with the
Servicing Standard. In the event that any such Servicer Errors and Omissions
Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the Special
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long-term rating of the Special Servicer is not less
than two rating categories (ignoring pluses or minuses) lower than the highest
rating of the Certificates, but in any event not less than "Baa2" as rated by
Moody's and "BBB" as rated by DCR, the Special Servicer may self-insure for the
Servicer Fidelity Bond and the Servicer Error and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the
right to use a Sub-Servicer on the same terms and conditions as those set forth
in Section 8.4 for a Sub-Servicer of the Servicer. The Special Servicer shall
notify the Servicer and Trustee of the appointment of any Sub-Servicer of the
Special Servicer.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this Agreement,
the Special Servicer is hereby authorized and empowered when the Special
Servicer believes it appropriate in accordance with the Servicing Standard, to
take any and all the actions with respect to Specially Serviced Mortgage Loans
which the Servicer may perform as set forth in Section 8.3(a), including (i) to
execute and deliver, on behalf of itself or the Trust, any and all instruments
of satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to the Specially Serviced
Mortgage Loans and with respect to the related REO Properties and (ii) to
effectuate foreclosure or other conversion of the ownership of any REO Property
securing a Mortgage Loan. The Trustee shall execute on the Closing Date a Power
of Attorney in the form of Exhibit S-2 hereto and shall furnish the Special
Servicer from time to time, upon request, with any additional powers of attorney
of the Trust, empowering the Special Servicer to take such actions as it
determines to be reasonably necessary
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to comply with its servicing, administrative and management duties hereunder,
and the Trustee shall execute and deliver or cause to be executed and delivered
such other documents as a Special Servicing Officer may request, that are
necessary or appropriate to enable the Special Servicer to service, administer
and manage the Specially Serviced Mortgage Loans and carry out its duties
hereunder, in each case as the Special Servicer determines is in accordance with
the Servicing Standard and the terms of this Agreement; provided, that, prior to
initiating any proceedings in any court of law or equity (but not defending any
proceedings in any court of law or equity) or instituting any proceeding to
foreclose on any Mortgaged Property in the name of the Trust in any state, the
Special Servicer shall notify the Trustee in writing and not institute or
initiate any such proceedings for a period of five Business Days from the date
of its delivery of such notice to the Trustee, unless the Special Servicer
reasonably believes that such action should be taken in less than five Business
days to preserve the property of the Trust for the benefit of
Certificateholders, and the Trustee may within five Business Days of its receipt
of such notice advise the Special Servicer that it has received an Opinion of
Counsel (the cost of which shall be an expense of the Trust) from an attorney
duly licensed to practice law in the state where the related Mortgaged Property
or REO Property is located, that it is likely that the laws of the state in
which said action is to be taken either prohibit such action if taken in the
name of the Trust or that the Trust would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name;
provided, further, that the Special Servicer shall not be liable to the extent
that it relies on the advice provided in such Opinion of Counsel. Upon receipt
of any such advice from the Trustee, the Special Servicer shall take such action
in the name of such Person or Persons, in trust for the Trust, as shall be
consistent with the Opinion of Counsel obtained by the Trustee. Such Person or
Persons shall acknowledge in writing that such action is being taken by the
Special Servicer in the name of the Trust. In the performance of its duties
hereunder, the Special Servicer shall be an independent contractor and shall
not, except in those instances where it is, after notice to the Trustee as
provided above, taking action in the name of the Trust, be deemed to be the
agent of the Trust. The Special Servicer shall indemnify the Trustee for any
loss, liability or reasonable expense (including attorneys' fees) incurred by
the Trustee or any director, officer, employee, agent or Controlling Person of
it or its affiliates in connection with any negligent or intentional misuse of
the foregoing powers of attorney furnished to the Special Servicer by the
Trustee. Such indemnification shall survive the resignation or termination of
the Special Servicer hereunder, the resignation or termination of the Trustee
and the termination of this Agreement. The Special Servicer shall not have any
responsibility or liability for any act or omission of the Trustee, the Servicer
or the Depositor that is not attributable to the failure of the Special Servicer
to perform its obligations hereunder. The Special Servicer may conclusively rely
on any advice of counsel rendered in a Nondisqualification Opinion.
(b) In servicing and administering the Specially Serviced
Mortgage Loans and managing any related REO Properties, the Special Servicer
shall employ procedures consistent with the Servicing Standard. The Special
Servicer shall conduct, or cause to be conducted, inspections, at its own
expense, of the Mortgaged Properties relating to Specially Serviced Mortgage
Loans at such times and in such manner as shall be consistent with the Servicing
Standard; provided, that the Special Servicer shall conduct, or cause to be
conducted, inspections 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
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twelve-month period ending June 30, 2000). The Special Servicer shall provide to
the Servicer and the Operating Adviser copies of the Inspection Reports relating
to such inspections as soon as practicable after the completion of any
inspection.
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS.
Subject to the limitations of Section 12.3, the Special Servicer
shall have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a provision
in the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan
shall (or may at the Mortgagee's option) become due and payable upon the sale or
other transfer of an interest in the related Mortgaged Property, or
(ii) provides that such Specially Serviced Mortgage Loan
may not be assumed without the consent of the related mortgagee in connection
with any such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after consultation
with the Operating Adviser and in accordance with the REMIC Provisions, take
such actions as it deems to be in the best economic interest of the Trust in
accordance with the Servicing Standard, and may waive or enforce any due-on-sale
clause contained in the related Mortgage Note or Mortgage; provided, however,
that if the Principal Balance of such Mortgage Loan at such time equals or
exceeds the Review Threshold, then prior to waiving the effect of such
provision, the Special Servicer shall obtain Rating Agency Confirmation
regarding such waiver. In connection with the request for such consent, the
Special Servicer shall prepare and deliver to DCR and Moody's a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. The Special
Servicer shall also prepare and provide DCR and Moody's with such memorandum and
documentation for all transfer, assumption and encumbrance consents granted for
Mortgage Loans below the Review Threshold, but for which the Special Servicer's
decision will be sufficient and a Rating Agency Confirmation is not required.
The Rating Agencies shall respond to such request in a reasonable period of
time. As to any Mortgage Loan that is not a Specially Serviced Mortgage Loan and
contains a provision in the nature of a "due-on-sale" clause, the Special
Servicer shall have the rights and duties set forth in Section 8.7(b). The
Special Servicer shall be entitled to 100% of all assumption fees in connection
with Specially Serviced Mortgage Loans.
After notice to the Operating Adviser, the Special Servicer is
also authorized to take or enter into an assignment and assumption agreement
from or with the Person to whom such property has been or is about to be
conveyed, and/or to release the original Mortgagor from liability upon the
Specially Serviced Mortgage Loan and substitute the new Mortgagor as obligor
thereon; provided, that except as otherwise permitted by Section 9.5(c), any
such assignment and assumption or substitution agreement shall contain no terms
that could result in an Adverse REMIC Event. To the extent permitted by law, the
Special Servicer shall enter into an
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assumption or substitution agreement only if the credit status of the
prospective new mortgagor and the underwriting of the new mortgagor is in
compliance with the Special Servicer's regular commercial mortgage origination
or servicing standards and criteria. The Special Servicer shall notify the
Servicer of any such assignment and assumption or substitution agreement and the
Special Servicer shall forward to the Trustee the original of such agreement,
which original shall be added by the Trustee to the related Mortgage File and
shall, for all purposes, be considered a part of such Mortgage File to the same
extent as all other documents and instruments constituting a part thereof.
(b) In connection with any assignment and assumption of a
Specially Serviced Mortgage Loan, in no event shall the Special Servicer consent
to the creation of any lien on a Mortgaged Property that is senior to, or on a
parity with, the lien of the related Mortgage. Nothing in this Section 9.5 shall
constitute a waiver of the Trustee's right, as the mortgagee of record, to
receive notice of any assignment and assumption of a Specially Serviced Mortgage
Loan, any sale or other transfer of the related Mortgaged Property or the
creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(c) Subject to the Servicing Standard and Section 9.34, and the
rights and duties of the Servicer under Section 8.18, the Special Servicer may
enter into any modification, waiver or amendment (including, without limitation,
the substitution or release of collateral or the pledge of additional
collateral) of the terms of any Specially Serviced Mortgage Loan, including any
modification, waiver or amendment to (i) reduce the amounts owing under any
Specially Serviced Mortgage Loan by forgiving principal, accrued interest and/or
any Prepayment Premium or 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 Adviser of such modification,
waiver or amendment is required pursuant to Section 9.39, the Special Servicer
has made such notice.
In no event, however, shall the Special Servicer (i) extend the
Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is two
years prior to the Final Rated Distribution Date, (ii) if the Specially Serviced
Mortgage Loan is secured by a ground lease, extend the Maturity Date of such
Specially Serviced Mortgage Loan beyond a date which is ten (10) years prior to
the expiration of the term of such ground lease, (iii) reduce the related
Mortgage Rate on any such Specially Serviced Mortgage Loan to less than the
lesser of (a) the Weighted Average REMIC I Net Mortgage Rate as of the Cut-off
Date and (b) the highest Pass-
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Through Rate on any Class of Certificate (other than the Class X Certificates),
or (iv) defer interest due on any Specially Serviced Mortgage Loan in excess of
10% of the Scheduled Principal Balance of such Specially Serviced Mortgage Loan
or defer the collection of interest on any Specially Serviced Mortgage Loan
without accruing interest on such deferred interest at a rate at least equal to
the Mortgage Rate of such Specially Serviced Mortgage Loan. Upon request, the
Paying Agent shall provide to the Special Servicer the rates in clause (iii)
above.
Notwithstanding the foregoing, if a Mortgage Loan is a Balloon
Mortgage Loan that has failed to make the Balloon Payment at its original
Maturity Date, and such Balloon Loan is not a Specially Serviced Mortgage Loan
(other than by reason of the failure to make its Balloon Payment) and has not
been delinquent in the preceding twelve months (other than with respect to the
Balloon Payment), then in addition to the other alternatives specified above,
the Special Servicer may make one or more extensions, in the aggregate not
exceeding three years, at the existing Mortgage Rate for such Mortgage Loan. The
preceding sentence does not modify the limitations of clause (i), (ii) or (iii)
of the preceding paragraph.
The determination of the Special Servicer contemplated by clause
(B) of the proviso to the first paragraph, and clause (ii) of the second
paragraph, of this Section 9.5(c) shall be evidenced by an Officer's Certificate
setting forth the information required under subsection (c). (d) In the event
the Special Servicer intends to permit a Mortgagor to substitute collateral for
all or any portion of a Mortgaged Property pursuant to Section 9.5(c) or pledge
additional collateral for the Mortgage Loan pursuant to Section 9.5(c), if the
security interest of the Trust in such collateral would be perfected by
possession, or if such collateral requires special care or protection, then
prior to agreeing to such substitution or addition of collateral, the Special
Servicer shall make arrangements for such possession, care or protection, and
prior to agreeing to such substitution or addition of collateral (or such
arrangement for possession, care or protection) shall obtain the prior written
consent of the Trustee with respect thereto (which consent shall not be
unreasonably withheld, delayed or conditioned); provided, however, that the
Trustee shall not be required (but has the option) to consent to any
substitution or addition of collateral or to hold any such collateral which will
require the Trustee to undertake any additional duties or obligations or incur
any additional expense.
(e) The Special Servicer will promptly deliver to the Servicer,
the Operating Adviser, the Trustee, the Paying Agent and the Rating Agencies a
notice, specifying any such assignments and assumptions, modifications, waivers
or amendments, such notice identifying the affected Specially Serviced Mortgage
Loan. Such notice shall be delivered to the Trustee and the Paying Agent and
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.
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(f) No fee described in this Section shall be collected by the
Special Servicer from the Mortgagor (or on behalf of the Mortgagor) in
conjunction with any consent or any modification, waiver or amendment of the
Mortgage Loan if the collection of such fee would cause such consent,
modification, waiver or amendment to be a "significant modification" of the
Mortgage Note within the meaning of Treasury Regulation ss. 1.860G-2(b). Subject
to the foregoing, the Special Servicer shall use its reasonable efforts, in
accordance with the Servicing Standard, to collect any modification fees and
other expenses connected with a permitted modification of a Mortgage Loan from
the Mortgagor. The inability of the Mortgagor to pay any costs and expenses of a
proposed modification shall not impair the right of the Special Servicer, the
Servicer or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel referred
to in this Section).
(g) The Special Servicer shall cooperate with the Servicer (as
provided in Section 8.7) in connection with assignments and assumptions of
Mortgage Loans that are not Specially Serviced Mortgage Loans, and shall be
entitled to receive 50% of any assumption fee paid by the related Mortgagor in
connection with an assignment and assumption executed pursuant to Section 8.7(a)
and 100% of any assumption fee paid by the related Mortgagor in connection with
an assignment and assumption executed pursuant to Section 8.7(b).
(h) Notwithstanding anything herein to the contrary, the Special
Servicer shall not be permitted to take or refrain from taking any action
pursuant to instructions from the Operating Adviser that would cause it to
violate any term or provision of this Agreement, including the REMIC Provisions
and the Servicing Standard.
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Specially
Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification
that payment in full will be escrowed in a manner customary for such purposes,
the Special Servicer will immediately notify the Servicer. The Special Servicer
shall determine, in accordance with the Servicing Standard, whether an
instrument of satisfaction shall be delivered and, if the Special Servicer
determines that such instrument should be delivered, the Special Servicer shall
deliver written approval of such delivery to the Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee and Custodian of a request for release signed by a Special Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File to the Special Servicer. After the transfer of servicing with respect to
any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with
the Servicing Standard, the Servicer shall notify, in writing, the Mortgagor
under each Specially Serviced Mortgage Loan transferred to the Special Servicer,
of such transfer.
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(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 Adviser and
their respective agents and accountants at any time upon reasonable written
request and during normal business hours, provided that the Special Servicer
shall not be required to take any action or provide any information that the
Special Servicer determines will result in any material cost or expense to which
it is not entitled to reimbursement hereunder or will result in any material
liability for which it is not indemnified hereunder; provided further that the
Trustee and the Paying Agent shall be entitled to receive from the Special
Servicer all such information as the Trustee and the Paying Agent shall
reasonably require to perform their respective duties hereunder. In fulfilling
such a request, the Special Servicer shall not be responsible for determining
whether such information is sufficient for the Trustee's, the Servicer's, the
Fiscal Agent's, the Paying Agent's or the Operating Adviser's purposes.
(b) The Special Servicer hereby acknowledges that the Trust owns
the Specially Serviced Mortgage Loans and all Mortgage Files representing such
Specially Serviced Mortgage Loans and all funds now or hereafter held by, or
under the control of, the Special Servicer that are collected by the Special
Servicer in connection with the Specially Serviced Mortgage Loans (but excluding
any Special Servicer Compensation and all other amounts to which the Special
Servicer is entitled hereunder); and the Special Servicer agrees that all
documents or instruments constituting part of the Mortgage Files, and such funds
relating to the Specially Serviced Mortgage Loans which come into the possession
or custody of, or which are subject to the control of, the Special Servicer,
shall be held by the Special Servicer for and on behalf of the Trust.
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(c) The Special Servicer also agrees that it shall not create,
incur or subject any Specially Serviced Mortgage Loans, or any funds that are
required to be deposited in any REO Account to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, nor assert by
legal action or otherwise any claim or right of setoff against any Specially
Serviced Mortgage Loan or any funds, collected on, or in connection with, a
Specially Serviced Mortgage Loan.
SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SPECIAL SERVICER.
(a) Special Servicer hereby represents, warrants to and covenants
with the Trustee (in its capacity as Trustee of the Trust) that as of the date
hereof:
(i) the Special Servicer is duly organized, validly
existing and in good standing as a corporation under the laws of the state of
its incorporation and shall be and thereafter remain, in compliance with the
laws of each state in which any Mortgaged Property (including any REO Property)
which is, or is related to, a Specially Serviced Mortgage Loan is located to the
extent necessary to perform its obligations under this Agreement, except where
the failure to so qualify or comply would not adversely affect the Special
Servicer's ability to perform its obligations hereunder in accordance with the
terms of this Agreement;
(ii) the Special Servicer has the full power and authority
to execute, deliver, perform, and to enter into and consummate all transactions
and obligations contemplated by this Agreement. The Special Servicer has duly
and validly authorized the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the Depositor, the Trustee, the Paying Agent, the Servicer
and the Fiscal Agent, evidences the valid and binding obligation of the Special
Servicer, enforceable against the Special Servicer in accordance with its terms
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, receivership, moratorium and other similar laws
affecting creditors' rights generally as from time to time in effect, and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement.
(iv) no litigation is pending or, to the Special
Servicer's knowledge, threatened, against it, that would materially and
adversely affect the execution, delivery or enforceability of this Agreement or
its ability to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
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(v) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by it, or compliance by it with, this Agreement, or the consummation
of the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, it has obtained the same or will obtain the
same prior to the time necessary to perform its obligations under this
Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder;
and
(vi) the performance of the services by the Special
Servicer contemplated by this Agreement are in the ordinary course of business
of the Special Servicer.
(b) It is understood that the representations and warranties set
forth in this Section 9.8 shall survive the execution and delivery of this
Agreement.
(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 discovery of such breach by any of the Trustee, the Servicer, the
Paying Agent, the Fiscal Agent, or the Special Servicer. The Special Servicer
shall give prompt notice to the Trustee, the Paying Agent, the Fiscal Agent, the
Depositor, the Operating Adviser and the Servicer of the occurrence, or the
failure to occur, of any event that, with notice, or the passage of time or
both, would cause any representation or warranty in this Section to be untrue or
inaccurate in any respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL
LIABILITY INSURANCE POLICIES.
(a) For all REO Property, to the extent consistent with the
Servicing Standard, the Special Servicer shall use efforts, consistent with the
Servicing Standard, to maintain with a Qualified Insurer a Standard Hazard
Insurance Policy which does not provide for reduction due to depreciation in an
amount which is not less than the full replacement cost of the improvements of
such REO Property or in an amount not less than the unpaid principal balance
plus all unpaid interest and the cumulative amount of Servicing Advances (plus
Advance Interest) made with respect to such Mortgage Loan of such Mortgage Loan,
whichever is less, but, in any event, in an amount sufficient to avoid the
application of any co-insurance clause. If the Mortgaged Property is in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance has been made available),
the Special Servicer shall maintain a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
in an amount representing coverage equal to the lesser of the then outstanding
Principal Balance of the Specially Serviced Mortgage Loan and unpaid Advances
(plus Advance Interest) and the maximum insurance coverage required under such
current guidelines. It is understood and agreed that the Special Servicer has no
obligation to obtain earthquake or other additional insurance on REO Property,
except as required by law and, nevertheless, at its sole option and at the
Trust's expense, it (if required at origination and is available at commercially
reasonable rates) may obtain such earthquake insurance. The Special Servicer
shall use its reasonable efforts, consistent with the Servicing Standard, to
obtain a comprehensive general liability insurance policy for all REO
Properties. The Special Servicer shall, to the extent available at commercially
reasonable rates (as determined by the Special
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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 of any such determination.
The Special Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 9.9 either (i) if the
Special Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans serviced by it, it being understood and agreed that such policy
may contain a deductible clause on terms substantially equivalent to those
commercially available and maintained by comparable servicers consistent with
the Servicing Standard, and provided that such policy is issued by a Qualified
Insurer with a minimum claims paying ability rating of at least "A2" by Moody's
and "A" by DCR or otherwise approved by the Rating Agencies or (ii) if the
Special Servicer, provided that the rating of such Person's long-term debt is
not less than "A2" by Moody's and "A" by DCR self-insures for its obligations as
set forth in the first paragraph of this Section 9.9. In the event that the
Special Servicer shall cause any Mortgage Loan to be covered by such a master
force placed or blanket insurance policy, the incremental cost of such insurance
allocable to such Mortgage Loan (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgage Loan is then covered
thereby), if not borne by the related Mortgagor, shall be paid by the Special
Servicer as a Servicing Advance, subject to the provisions of Section 4.4
hereof. If such policy contains a deductible clause, the Special Servicer shall,
if there shall not have been maintained on the related Mortgaged Property a
policy complying with this Section 9.9 and there shall have been a loss that
would have been covered by such policy, deposit in the Certificate Account the
amount not otherwise payable under such master force placed or blanket insurance
policy because of such deductible clause to the extent that such deductible
exceeds (i) the deductible under the related Mortgage Loan or (ii) if there is
no deductible limitation required under the Mortgage Loan, the deductible amount
with respect to insurance policies generally available on properties similar to
the related Mortgaged Property which is consistent with the Servicing Standard,
and deliver to the Trustee an Officer's Certificate describing the calculation
of such amount. In
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connection with its activities as administrator and servicer of the Mortgage
Loans, the Special Servicer agrees to present, on its behalf and on behalf of
the Trustee, claims under any such master force placed or blanket insurance
policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
The Special Servicer will prepare and present or cause to be prepared and
presented on behalf of the Trustee all claims under the Insurance Policies with
respect to REO Property, and take such actions (including the negotiation,
settlement, compromise or enforcement of the insured's claim) as shall be
necessary to recover under such policies. Any proceeds disbursed to the Special
Servicer in respect of such policies shall be promptly remitted to the
Certificate Account, upon receipt, except for any amounts realized that are to
be applied to the repair or restoration of the applicable REO Property in
accordance with the Servicing Standard. Any extraordinary expenses (but not
ordinary and routine or anticipated expenses) incurred by the Special Servicer
in fulfilling its obligations under this Section 9.10 shall be paid by the
Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the Special
Servicer shall be entitled to (i) the Special Servicing Fee, (ii) the
Liquidation Fee and (iii) the Work-Out Fee. Such amounts, if any, collected by
the Special Servicer from the related Mortgagor shall be transferred by the
Special Servicer to the Servicer within one Business Day of receipt thereof, and
deposited by the Servicer in the Certificate Account. The Special Servicer shall
be entitled to receive a Liquidation Fee from the Liquidation Proceeds received
in connection with a Final Disposition of a Specially Serviced Mortgage Loan or
REO Property. Notwithstanding any other provision herein, the Special Servicing
Fee for each monthly period relating to each Determination Date shall be reduced
by an amount equal to the Compensating Interest, if any, relating to Specially
Serviced Mortgage Loans which have received voluntary Principal Prepayments not
from Liquidation Proceeds or from modifications of Specially Serviced Mortgage
Loans for such Determination Date. The Special Servicer shall also be entitled
to additional servicing compensation of an amount equal to the excess, if any,
of the aggregate Prepayment Interest Excess relating to Mortgage Loans which are
Specially Serviced Mortgage Loans which have received voluntary Principal
Prepayments not from Liquidation Proceeds or from modifications of Specially
Serviced Mortgage Loans for each Distribution Date over the aggregate Prepayment
Interest Shortfalls for such Mortgage Loans for such Distribution Date.
(b) The Special Servicer shall be entitled to cause the Servicer
to withdraw from the Certificate Account the Special Servicer Compensation in
respect of each such Mortgage Loan in the time and manner set forth in Section
5.2 of this Agreement. The Special Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as expressly provided
in this Agreement.
(c) Additional Special Servicer compensation in the form of net
interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, Late Fees (net of Advance
Interest) or other usual and customary charges and fees actually received from
the Mortgagor in connection with any Specially Serviced Mortgage Loan shall be
retained by the Special Servicer, to the extent not required to be deposited in
the
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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 that are not Specially Serviced Mortgage Loans as
provided in Section 8.7(a) and 100% of all assumption fees collected with
respect to Mortgage Loans that are Specially Serviced Mortgage Loans as provided
in Section 8.7(b). 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, the
sale of such Mortgage Loan in accordance with this Agreement or the modification
of such Mortgage Loan in accordance with this Agreement. In connection with such
foreclosure or other conversion of ownership, the Special Servicer shall follow
the Servicing Standard. The foregoing is subject to the proviso that the Special
Servicer shall not request that the Servicer make a Servicing Advance for
Liquidation Expenses unless the Special Servicer shall in its sole discretion
determine, consistent with the Servicing Standard, (i) that such foreclosure or
restoration will increase on a net present value basis the Liquidation Proceeds
of the Specially Serviced Mortgage Loan to the Trust and (ii) that such
Liquidation Expenses will be recoverable from Liquidation Proceeds, and any such
Servicing Advance by the Servicer or the Trustee or the Fiscal Agent shall be
subject to the determination(s) of recoverability contemplated by Section 4.4.
(b) The Special Servicer shall not acquire any personal property
relating to any Specially Serviced Mortgage Loan pursuant hereto unless either:
(i) such personal property is incidental to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust)
to the effect that the holding of such personal property by any REMIC will not
cause the imposition of a tax on any REMIC Pool under the Code or cause any
REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement,
the Special Servicer shall not, on behalf of the Trust, obtain title to a
Mortgaged Property as a result of or in lieu of foreclosure or otherwise, and
shall not otherwise acquire possession of, or take any other action with respect
to, any Mortgaged Property, if, as a result of any such action the Trust would
be considered to hold title to, to be a "mortgagee-in-possession" of, or to be
an "owner" or "operator" of such Mortgaged Property within the meaning of
CERCLA, or any applicable comparable federal, state or local law, or a
"discharger" or "responsible party" thereunder, unless
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the Special Servicer has also previously determined in accordance with the
Servicing Standard, based on a Phase I Environmental Report prepared by a Person
(who may be an employee or affiliate of the Servicer or the Special Servicer)
who regularly conducts environmental site assessments in accordance with the
standards of FNMA in the case of multi-family mortgage loans and customary
servicing practices in the case of commercial loans for environmental
assessments, which report shall be delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with
applicable Environmental Laws or, if not, after consultation with an
environmental expert that taking such actions as are necessary to bring the
Mortgaged Property in compliance therewith is reasonably likely to produce a
greater recovery on a net present value basis than not taking such actions; and
(ii) there are no circumstances or conditions present or
threatened at such Mortgaged Property relating to the use, management, disposal
or release of any hazardous substances, hazardous materials, hazardous wastes,
or petroleum-based materials for which investigation, testing, monitoring,
removal, clean-up or remediation could be required under any federal, state or
local law or regulation, or that, if any such materials are present for which
such action could be required, after consultation with an environmental expert
taking such actions with respect to the affected Mortgaged Property is
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions;
provided, however, that such compliance pursuant to clause (i) above or the
taking of such action pursuant to this clause (ii) shall only be required to the
extent that the cost thereof is a Servicing Advance of the Servicer pursuant to
this Agreement, subject to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan, the Servicer shall treat such cost as a Servicing Advance subject to the
provisions of Section 4.4 hereof; provided that, in the latter event, the
Special Servicer shall use its good faith reasonable business efforts to recover
such cost from the Mortgagor in connection with the curing of the default under
the Specially Serviced Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section
9.12(c), that taking such actions as are necessary to bring any Mortgaged
Property into compliance with applicable Environmental Laws, or taking such
actions with respect to the containment, removal, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, is not reasonably likely to
produce a greater recovery on a net present value basis than not taking such
actions, then the Special Servicer shall take such action as it deems to be in
the best economic interest of the Trust, including, without limitation,
releasing the lien of the related Mortgage. If the Special Servicer determines
that a material possibility exists that Liquidation Expenses with respect to
Mortgaged Property (taking into account the cost of bringing it into compliance
with applicable Environmental Laws) would exceed the principal balance of the
related Mortgage Loan, the Special Servicer shall not attempt to bring such
Mortgaged Property into compliance and shall
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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.
(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 Stearns Commercial Mortgage
Securities Inc. Commercial Mortgage Pass-Through Certificates Series 1999-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 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,
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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.
(c) If the Trust acquires the Mortgaged Property, the Special
Servicer shall have full power and authority, in consultation with the Operating
Adviser, and subject to the specific requirements and prohibitions of this
Agreement, to do any and all things in connection therewith as are consistent
with the Servicing Standard, subject to the REMIC Provisions, and in such manner
as the Special Servicer deems to be in the best interest of the Trust, and,
consistent therewith, may advance from its own funds to pay for the following
items (which amounts shall be reimbursed by the Trust), to the extent such
amounts cannot be paid from REO Income:
(i) all insurance premiums due and payable in respect of
such REO Property;
(ii) all real estate taxes and assessments in respect of
such REO Property that could result or have resulted in the imposition of a lien
thereon; and
(iii) all costs and expenses necessary to maintain,
operate, lease and sell such REO Property (other than capital expenditures);
(iv) Notwithstanding the above, the Special Servicer shall
pay for such items if, but only if, in the Special Servicer's good faith
reasonable business judgment, such amounts will be recoverable from (i) proceeds
received in respect of such REO Property prior to the final liquidation of such
REO Property or (ii) Liquidation Proceeds, subject to the provisions of Section
4.4 hereof.
(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 its
best efforts to contract with any Independent Contractor for the operation and
management of the REO Property, provided that:
(i) the terms and conditions of any such contract shall
not be inconsistent herewith;
(ii) the terms of such contract shall be consistent with
the provisions of Section 856 of the Code and Treasury Regulations Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any
such contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in connection
with the operation and management of such Mortgaged Property underlying the REO
Property and (B) deposit on a daily basis all amounts payable to the Trust in
accordance with the contract between the Trust and the Independent Contractor in
an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating
to any such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve
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the Special Servicer of any of its duties and obligations to the Trustee with
respect to the operation and management of any such REO Property;
(v) if the Independent Contractor is an Affiliate of the
Special Servicer, the consent of the Operating Adviser and a Nondisqualification
Opinion must be obtained; and
(vi) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for the Trust
pursuant to this subsection (d) for indemnification of the Special Servicer by
such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification. All fees of the Independent Contractor
(other than fees paid for performing services within the ordinary duties of a
Special Servicer which shall be paid by the Special Servicer) shall be paid from
the income derived from the REO Property. To the extent that the income from the
REO Property is insufficient, such fees shall be advanced 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:
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(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;
(iii) authorize or permit any construction on the REO
Property, other than the completion of a building or other improvement thereon,
and then only if more than ten percent of the construction of such building or
other improvement was completed before default on the Mortgage Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) operate, other than through an Independent
Contractor, or allow any other Person to operate, other than through an
Independent Contractor, the REO Property on any date more than 90 days after the
Acquisition Date; unless, in any such case, the Special Servicer has requested
and received an Opinion of Counsel at the Trust's sole expense to the effect
that such action will not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(without giving effect to the final sentence thereof) at any time that it is
held by the applicable REMIC Pool, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired by
the Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser, shall use
its reasonable best efforts to sell any REO Property in accordance with the
Servicing Standard, but prior to the end of the third calendar year following
the end of the year of its acquisition, but in any event prior to the Final
Rated Distribution Date, unless (i) the Trustee, on behalf of the applicable
REMIC Pool, has been granted an extension of time (an "Extension") (which
extension shall be applied for at least 60 days prior to the expiration of the
period specified above) by the Internal Revenue Service to sell such REO
Property, in which case the Special Servicer shall continue to attempt to sell
the REO Property for its fair market value for such period longer than the
period specified above as such Extension permits or (ii) the Special Servicer
seeks and subsequently receives, at the expense of the Trust, a
Nondisqualification Opinion, addressed to the Trustee and the Special Servicer,
to the effect that the holding by the Trust of such REO Property subsequent to
the period specified above after its acquisition will not result in the
imposition of taxes on "prohibited transactions" of a REMIC, as defined in
Section 860F(a)(2) of the Code, or cause any REMIC to fail to qualify as a REMIC
at any time that any Certificates are outstanding, in which case the Special
Servicer shall continue to attempt to sell the REO Property for its fair market
value within the extended period specified in the Nondisqualification Opinion.
If the Trustee has not received an Extension or such Opinion of Counsel and the
Special Servicer is not able to sell such REO Property within the period
specified above, or if an Extension has been granted and the Special Servicer is
unable to sell such REO Property within the extended time period, the Special
Servicer shall, after consultation with the Operating Adviser, before the end of
such period or extended period, as the case may
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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 and Mortgage, the
Special Servicer may sell a Specially Serviced Mortgage Loan that is a Defaulted
Mortgage Loan for cash in accordance with Section 9.36 hereof.
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE. The
Special Servicer shall deliver to the Depositor, the Servicer and the Trustee on
or before the Report Date occurring in March of each year, commencing in March
2000, an Officer's Certificate stating, as to the signer thereof, that (A) a
review of the activities of the Special Servicer during the
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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 April of each year, commencing in April
2000, the Special Servicer, at its expense, shall cause a firm of nationally
recognized independent public accountants that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Depositor, the Servicer, the Operating Adviser, the Paying Agent and the Trustee
to the effect that such firm has examined certain documents and records relating
to the servicing of the Mortgage Loans and that, on the basis of such
examination conducted substantially in compliance with the USAP or the FHLMC
Audit Program, such servicing for the preceding calendar year has been conducted
in compliance with such agreements except for such significant exceptions or
errors in records that, in the opinion of such firm, the USAP or FHLMC Audit
Program require it to report. The Special Servicer shall forward a copy of each
such report to the Rating Agencies.
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which the
Special Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Special
Servicer shall be a party, or any Person succeeding to the business of the
Special Servicer, shall be the successor of the Special Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that each of the Rating Agencies
provides written acknowledgment that its rating of the Certificates in effect
immediately prior to such merger, consolidation, or succession will not be
qualified or reduced as a result of such merger, consolidation or succession. If
the conditions to the proviso in the foregoing sentence are not met, the Trustee
may terminate the Special Servicer's servicing of the Specially Serviced
Mortgage Loans pursuant hereto, such termination to be effected in the manner
set forth in Section 9.31.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21, the
Special Servicer shall not resign from the obligations and duties hereby imposed
on it unless it determines that the Special Servicer's duties hereunder are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Servicer, the
Operating Adviser, and the Trustee. No such resignation shall become effective
until a successor servicer designated by the Operating Adviser and the Trustee
shall have (i) satisfied the requirements that would apply pursuant to Section
9.20 hereof if a merger of the Special Servicer had occurred, (ii) assumed the
Special Servicer's responsibilities and obligations under this Agreement and
(iii) Rating Agency
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Confirmation shall have been obtained. Notice of such resignation shall be given
promptly by the Special Servicer to the Servicer and the Trustee.
(b) The Special Servicer may resign from the obligations and
duties hereby imposed on it, upon reasonable notice to the Trustee, provided
that (i) a successor Special Servicer is (x) available, (y) reasonably
acceptable to the Operating Adviser, the Depositor, and the Trustee, and (z)
willing to assume the obligations, responsibilities and covenants to be
performed hereunder by the Special Servicer on substantially the same terms and
conditions, and for not more than equivalent compensation as that herein
provided, (ii) the successor Special Servicer has assets of at least $15,000,000
and (iii) Rating Agency Confirmation is obtained with respect to such
resignation, as evidenced by a letter from each Rating Agency delivered to the
Trustee. Any costs of such resignation and of obtaining a replacement Special
Servicer shall be borne by the Special Servicer and shall not be an expense of
the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the Special Servicer hereunder in form and substance
reasonably satisfactory to the Trustee.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL
SERVICER. Except as expressly provided herein including Section 9.3, the Special
Servicer shall not assign or transfer any of its rights, benefits or privileges
hereunder to any other Person, or delegate to or subcontract with, or authorize
or appoint any other Person to perform any of the duties, covenants or
obligations to be performed by the Special Servicer hereunder; provided that the
Special Servicer shall have the right without the prior written consent of the
Trustee to delegate or assign to or subcontract with or authorize or appoint an
Affiliate of the Special Servicer to perform and carry out any duties, covenants
or obligations to be performed and carried out by the Special Servicer
hereunder. In no case, however, shall any such delegation, subcontracting or
assignment to an Affiliate of the Special Servicer relieve the Special Servicer
of any responsibility, obligation or liability hereunder. Notice of such
permitted assignment shall be given promptly by the Special Servicer to the
Servicer and the Trustee, and any cost thereof shall be borne by the Special
Servicer.
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER AND
OTHERS.
(a) Neither the Special Servicer nor any of the directors,
officers, employees or agents of the Special Servicer shall be under any
liability to the Certificateholders or the Trustee for any action taken or for
refraining from the taking of any action in good faith and using reasonable
business judgment; provided that this provision shall not protect the Special
Servicer or any such person against any breach of a representation or warranty
contained herein or any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer and any director, officer, employee or agent of
the Special Servicer may rely in good faith on any document of any kind 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
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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 Adviser which is in conflict with the Servicing
Standard.
(b) In addition, the Special Servicer shall have no liability
with respect to, and shall be entitled to conclusively rely on as to the truth
of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Special Servicer and conforming to the
requirements of this Agreement. Neither the Special Servicer, nor any director,
officer, employee, agent or Affiliate, shall be personally liable for any error
of judgement made in good faith by any officer, unless it shall be proved that
the Special Servicer or such officer was negligent in ascertaining the pertinent
facts. Neither the Special Servicer, nor any director, officer, employee, agent
or Affiliate, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement. The Special
Servicer shall be entitled to rely on reports and information supplied to it by
the Servicer and the related Mortgagors and shall have no duty to investigate or
confirm the accuracy of any such report or information.
(c) The Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Servicer, the Fiscal Agent, the Paying Agent or Trustee in this
Agreement. The Trust shall indemnify and hold harmless the Special Servicer from
any and all claims, liabilities, costs, charges, fees or other expenses which
relate to or arise from any such breach of representation, warranty or covenant
to the extent such amounts are not recoverable from the party committing such
breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be protected
in acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed or in good faith believed by it to be genuine and to have
been signed or presented by the proper party or parties; and
(ii) the Special Servicer may consult with counsel, and
any written advice or Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel.
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(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 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
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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 Special Servicer shall be reimbursed by the
party responsible, or if not recovered by the Special Servicer from such Person,
then by the Trust, if a court of competent jurisdiction makes a final,
non-appealable judgment that the conduct of the Special Servicer was not
culpable.
(b) The Special Servicer agrees to indemnify the Trust, and the
Trustee, the Fiscal Agent, the Paying Agent, the Depositor, the Servicer and any
director, officer, employee or agent or Controlling Person of the Trustee, the
Fiscal Agent, the Paying Agent, the Depositor and the Servicer, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trust or the Trustee, the Fiscal Agent, the Paying Agent,
the Depositor or the Servicer may sustain arising from or as a result of the
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder by the Special Servicer. The Trustee, the Fiscal Agent, the Paying
Agent, the Depositor or the Servicer shall immediately notify the Special
Servicer if a claim is made by a third party with respect to this Agreement or
the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the
Fiscal Agent, the Paying Agent, the Depositor or the Servicer, as the case may
be, to indemnification hereunder, whereupon the Special Servicer shall assume
the defense of any such claim (with counsel reasonably satisfactory to the
Trustee, the Fiscal Agent, the Paying Agent, the Depositor or the Servicer, as
the case may be) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so notify
the Special Servicer shall not affect any rights the Trust or the Trustee, the
Fiscal Agent, the Paying Agent, the Depositor or the Servicer may have to
indemnification under this Agreement or otherwise, unless the Special Servicer's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
termination or resignation of the Special Servicer or the Trustee or Fiscal
Agent. Any expenses incurred or indemnification payments made by the Special
Servicer shall be reimbursed by the party so paid, if a court of competent
jurisdiction makes a final, non-appealable judgment that the conduct of the
Special Servicer was not culpable or 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
Wells Fargo Bank, National Association unless Wells Fargo Bank, National
Association acquires the Certificates at the then
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fair market value of such Certificates) in its individual capacity or in any
other capacity may become the owner or pledgee of Certificates with the same
rights as it would have if they were not the Special Servicer or such agent. Any
such interest of the Special Servicer or such agent in the Certificates shall
not be taken into account when evaluating whether actions of the Special
Servicer are consistent with its obligations in accordance with the Servicing
Standard regardless of whether such actions may have the effect of benefiting
the Class or Classes of Certificates owned by the Special Servicer.
SECTION 9.27 TAX REPORTING. From and after the Closing Date, the
Special Servicer shall provide the necessary information to the Servicer to
allow the Servicer to comply with the Mortgagor tax reporting requirements
imposed by Sections 6050H, 6050J and 6050P of the Code with respect to any
Specially Serviced Mortgage Loan. The Special Servicer shall provide to the
Servicer copies of any such reports. The Servicer shall forward such reports to
the Trustee and the Paying Agent.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated
that the Servicer will be collecting all payments with respect to the Mortgage
Loans (other than payments with respect to REO Income). If, however, the Special
Servicer should receive any payments with respect to any Mortgage Loan (other
than REO Income) it shall, within one Business Day of receipt from the Mortgagor
or otherwise of any amounts attributable to payments with respect to or the sale
of any Mortgage Loan or any Specially Serviced Mortgage Loan, if any, (but not
including REO Income, which shall be deposited in the applicable REO Account as
provided in Section 9.14 hereof), either, (i) forward such payment (endorsed, if
applicable, to the order of the Servicer), to the Servicer, or (ii) deposit such
amounts, or cause such amounts to be deposited, in the Certificate Account. The
Special Servicer shall notify the Servicer of each such amount received on or
before the date required for the making of such deposit or transfer, as the case
may be, indicating the Mortgage Loan or Specially Serviced Mortgage Loan to
which the amount is to be applied and the type of payment made by or on behalf
of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS. The Special
Servicer shall act in accordance with this Agreement and the provisions of the
Code relating to REMICs in order to create or maintain the status of any REMIC
Pool as a REMIC under the Code or, as appropriate, adopt a plan of complete
liquidation. 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)
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shall terminate on the date which is the earliest of (i) the later of (A) the
final payment or other liquidation of the last Mortgage Loan remaining
outstanding or, (B) the disposition of all REO Property in respect of any
Specially Serviced Mortgage Loan, (ii) 60 days following the date on which the
Trustee or the Operating Adviser has given written notice to the Special
Servicer that this Agreement is terminated pursuant to Section 9.30(b) or
9.30(c), respectively, and (iii) the effective date of any resignation of the
Special Servicer effected pursuant to and in accordance with Section 9.21.
(b) The Trustee may terminate the Special Servicer, in the event
that (i) the Special Servicer has failed to remit any amount required to be
remitted to the Trustee, the Servicer, the Fiscal Agent, the Paying Agent or the
Depositor under the terms of this Agreement, (ii) the Special Servicer has
breached any material obligation set forth in this Agreement and has failed to
cure such breach within thirty (30) days after written notice of such failure,
requiring the same to be remedied, shall have been given to the Special Servicer
by the Trustee or the Servicer, that materially and adversely affects the
interests of the Certificateholders, provided, however, that if the Special
Servicer certifies to the Trustee and the Depositor that the Special Servicer is
in good faith attempting to remedy such failure, such cure period will be
extended to the extent necessary to permit the Special Servicer to cure such
failure by not more than an additional 90 days; (iii) the Special Servicer has
made one or more false or misleading representations or warranties herein that
materially and adversely affects the interest of the Certificateholders, and has
failed to cure such breach within thirty (30) days after notice by the Trustee
or the Servicer; (iv) the Trustee shall have received written notice from either
Rating Agency that the continuation of the Special Servicer in such capacity
would result in the downgrade, qualification (including the placement of any
rated Certificate on "credit watch" or the equivalent) or withdrawal of any
rating then assigned by that Rating Agency to any Class of Certificates; (v) a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present or future
federal or state bankruptcy, insolvency or similar law for the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Special Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; (vi) the Special Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings relating to the Special Servicer or of or
relating to all or substantially all of its property; or (vii) the Special
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any corporate
action in furtherance of the foregoing. Such termination shall be effective on
the date after the date of any of the above events that the Trustee specifies in
a written notice to the Special Servicer specifying the reason for such
termination.
(c) The Operating Adviser shall have the right to direct the
Trustee to terminate the Special Servicer, provided that the Operating Adviser
shall appoint a successor Special Servicer who will (i) be reasonably
satisfactory to the Trustee and to the Depositor, and (ii) execute and deliver
to the Trustee an agreement, in form and substance reasonably
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satisfactory to the Trustee, whereby the successor Special Servicer agrees to
assume and perform punctually the duties of the Special Servicer specified in
this Agreement; and provided, further, that the Trustee shall have received
Rating Agency Confirmation from each Rating Agency prior to the termination of
the Special Servicer. The Special Servicer shall not be terminated pursuant to
this subsection (c) until a successor Special Servicer shall have been
appointed.
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Special Servicer to the Trustee
and the Paying Agent no later than the later of (i) five Business Days after the
final payment or other liquidation of the last Mortgage Loan or (ii) the sixth
day of the month in which the final Distribution Date will occur. Upon any such
termination, the duties of the Special Servicer (other than the obligations of
the Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall terminate
and the Special Servicer shall transfer to the Servicer the amounts remaining in
each REO Account and shall thereafter terminate each REO Account and any other
account or fund maintained with respect to the Specially Serviced Mortgage
Loans.
(b) On the date specified in a written notice of termination
given to the Special Servicer pursuant to clause (ii) of Section 9.30(a), all
authority, power and rights of the Special Servicer under this Agreement,
whether with respect to the Specially Serviced Mortgage Loans or otherwise,
shall terminate; 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 Special
Servicer 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.
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
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for each month, a Special Servicer Monthly Report substantially in the form of
Exhibit O or in such electronic format as is mutually acceptable to the Servicer
and the Special Servicer. The Servicer, the Paying Agent, and the Trustee may
use such reports or information contained therein to prepare its reports and the
Servicer may, at its option, forward such Special Servicer Monthly Reports
directly to the Depositor and the Rating Agencies. The Special Servicer Monthly
Report shall be substantially in the form of Exhibit O and shall contain a
narrative description for each Specially Serviced Mortgage Loan of the current
status of such Loan including the status of any workout or foreclosure, the
change in such status since the prior Special Servicer Monthly Report, and other
information described in Exhibit O.
(b) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination with
respect to any Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee, the Paying Agent and the Servicer no later than the ten Business
Day following such Final Recovery Determination.
(c) The Special Servicer shall provide to the Servicer or the
Paying Agent at the reasonable request in writing of the Servicer or Paying
Agent, any information in its possession with respect to the Specially Serviced
Mortgage Loans which the Servicer or Paying Agent, as the case may be, shall
require in order for the Servicer or Paying Agent to comply with its obligations
under this Agreement; provided that the Special Servicer shall not be required
to take any action or provide any information that the Special Servicer
determines will result in any material cost or expense to which it is not
entitled to reimbursement hereunder or will result in any material liability for
which it is not indemnified hereunder. The Servicer will provide the Special
Servicer at the request of the Special Servicer any information in its
possession with respect to the Mortgage Loans which the Servicer shall require
in order for the Special Servicer to comply with its obligations under this
Agreement.
(d) Not later than 20 days after each Special Servicer Remittance
Date, the Special Servicer shall forward to the Servicer a statement setting
forth the status of each REO Account as of the close of business on such Special
Servicer Remittance Date, stating that all remittances required to be made by it
as required by this Agreement to be made by the Special Servicer have been made
(or, if any required distribution has not been made by the Special Servicer,
specifying the nature and status thereof) and showing, for the period from the
day following the preceding Special Servicer Remittance Date to such Special
Servicer Remittance Date, the aggregate of deposits into and withdrawals from
each REO Account for each category of deposit specified in Section 5.1 of this
Agreement and each category of withdrawal specified in Section 5.2 of this
Agreement.
(e) The Special Servicer shall use reasonable efforts to obtain
and, to the extent obtained, to deliver to the Servicer, the Trustee and the
Operating Adviser, on or before April 15 of each year, commencing with April 15,
2000, (i) copies of the prior year operating statements and quarterly
statements, if available, for each Mortgaged Property underlying a Specially
Serviced Mortgage Loan or REO Property as of its fiscal year end, provided that
either the related Mortgage Note or Mortgage requires the Mortgagor to provide
such information, or if the related Mortgage Loan has become an REO Property,
(ii) a copy of the most recent rent roll available for each Mortgaged Property,
and (iii) a table, setting forth the Debt Service Coverage
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Ratio and occupancy with respect to each Mortgaged Property covered by the
operating statements delivered above.
(f) The Special Servicer shall deliver to the Servicer, the
Paying Agent, the Depositor and the Trustee all such other information with
respect to the Specially Serviced Mortgage Loans at such times and to such
extent as the Servicer, the Paying Agent, the Trustee or Depositor may from time
to time reasonably request; provided, however, that the Special Servicer shall
not be required to produce any ad hoc non-standard written reports with respect
to such Mortgage Loans except if any Person (other than Paying Agent or the
Trustee) requesting such report pays a reasonable fee to be determined by the
Special Servicer.
(g) The Special Servicer shall deliver a written Inspection
Report of each Specially Serviced Mortgage Loan in accordance with Section
9.4(b).
(h) The Special Servicer shall provide as soon as practicable
after a Mortgage Loan becomes a Specially Serviced Mortgage Loan, to the
Servicer its estimate of the net recoverable amount to the Certificateholders
and anticipated expenses in connection therewith (and a general description of
the plan to achieve such recovery) of such Specially Serviced Mortgage Loan and
other information reasonably requested by the Servicer. The Special Servicer
shall update such information on a quarterly basis.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE SERVICER AND
PAYING AGENT.
(a) The Special Servicer shall furnish on a timely basis such
reports, certifications, and information as are reasonably requested by the
Servicer or Paying Agent to enable it to perform its duties under this
Agreement; provided that no such request shall (i) require or cause the Special
Servicer to violate the Code, any provision of this Agreement, including the
Special Servicer's obligation to act in accordance with the servicing standards
set forth in this Agreement and to maintain the REMIC status of any REMIC Pool
or (ii) expose the Special Servicer, the Trust, the Fiscal Agent, the Paying
Agent, or the Trustee to liability or materially expand the scope of the Special
Servicer's responsibilities under this Agreement. In addition, the Special
Servicer shall notify the Servicer of all expenditures incurred by it with
respect to the Specially Serviced Mortgage Loans which are required to be made
by the Servicer as Servicing Advances as provided herein, subject to the
provisions of Section 4.4 hereof. The Special Servicer shall also remit all
invoices relating to Servicing Advances promptly upon receipt of such invoices.
(b) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters, the expense of which shall be charged to the Operating
Adviser, but in no event shall such costs be an expense of the Trust:
(i) whether the foreclosure of a Mortgaged Property
relating to a Specially Serviced Mortgage Loan would be in the best economic
interest of the Trust;
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(ii) if the Special Servicer elects to proceed with a
foreclosure, whether a deficiency judgment should or should not be sought
because the likely recovery will or will not be sufficient to warrant the cost,
time and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any
"due-on-sale" clause or "due-on-encumbrance" clause contained in a Mortgage Loan
or a Specially Serviced Mortgage Loan is in the best economic interest of the
Trust;
(iv) in connection with entering into an assumption
agreement from or with a person to whom a Mortgaged Property securing a
Specially Serviced Mortgage Loan has been or is about to be conveyed, or to
release the original Mortgagor from liability upon a Specially Serviced Mortgage
Loan and substitute a new Mortgagor, and whether the credit status of the
prospective new Mortgagor is in compliance with the Special Servicer's regular
commercial mortgage origination or servicing standard;
(v) in connection with the foreclosure on a Specially
Serviced Mortgage Loan secured by a Mortgaged Property which is not in
compliance with CERCLA, or any comparable environmental law, whether it is in
the best economic interest of the Trust to bring the Mortgaged Property into
compliance therewith and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which
shall include any proposed release, substitution or addition of collateral),
extension, waiver, amendment, discounted payoff or sale of a Mortgage Loan,
prepare a summary of such proposed action and an analysis of whether or not such
action is reasonably likely to produce a greater recovery on a present value
basis than liquidation of such Mortgage Loan; such analysis shall specify the
basis on which the Special Servicer made such determination, including the
status of any existing material default or the grounds for concluding that a
payment default is imminent.
SECTION 9.34 CERTAIN REMIC LIMITATIONS ON MODIFICATION OF
SPECIALLY SERVICED MORTGAGE Loans. Notwithstanding anything to the contrary in
this Agreement, the Special Servicer shall not permit any modification of any
Money Term of a Specially Serviced Mortgage Loan unless (i) the Special Servicer
shall have received a Nondisqualification Opinion or a ruling from the Internal
Revenue Service to the effect that such modification would not be treated as an
exchange pursuant to Section 1001 of the Code (or, if it would be so treated,
would not be treated as a "significant modification" for purposes of Treasury
Regulations Sec 1.860G-2(B) of the Code), the reasonable cost of which opinion
shall be an expense of the Trust or (ii) such modification meets the
requirements set forth in Section 9.5.
SECTION 9.35 [RESERVED].
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS AND REO PROPERTIES.
(a) The Special Servicer may, after providing notice to the
Operating Adviser, subject to the limitations in paragraph (d) below, offer to
sell for cash to any Person, for an amount equal to the Purchase Price therefor,
any REO Property or Defaulted Mortgage Loan. In the case of REO Property, the
Special Servicer shall offer to sell such REO Property no later than the time
determined by the Special Servicer to be sufficient to result in the sale of
such REO Property on or prior to the date specified in Section 9.15 and in any
event prior to the Final Rated
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Distribution Date. The Special Servicer shall give the Operating Adviser, the
Servicer, the Paying Agent and the Trustee not less than five days' prior
written notice of its intention to sell any such Defaulted Mortgage Loan or REO
Property, and in respect of such sale, the Special Servicer shall offer such
Defaulted Mortgage Loan or REO Property for sale in a fair auction or other
manner as is consistent with the Servicing Standard and shall accept the highest
cash bid received in such auction or other procedure from any Person for any
Defaulted Mortgage Loan or REO Property in an amount, except as otherwise
provided in this Section at least equal to the Purchase Price therefor.
In the absence of a bid in an amount at least equal to the
Purchase Price (after deducting allocable expenses), the Special Servicer shall
accept the highest bid received from any Person other than the Servicer, the
Special Servicer or the Operating Adviser, if any, that the Special Servicer
determines to be a fair price for the Defaulted Mortgage Loan or REO Property.
However, the Special Servicer may be the purchaser of a Defaulted Mortgage Loan
or a related REO Property only if the price at which the Special Servicer
purchases is at least equal to the highest bid and it has received at least
three bids from non-affiliated parties. Notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Defaulted Mortgage Loan or any REO
Property. The Special Servicer shall not accept a bid from Wells Fargo Bank,
National Association, either Seller or the Depositor unless such bid is in the
good faith judgment of the Special Servicer, equal to (and not greater than) the
then market value of such REO Property or the fair price of the Defaulted
Mortgaged Loan.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest cash bid if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such bid would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower bid (including a bid lower
than the Purchase Price) of a Person other than an Interested Person or the
Operating Adviser, if any, if it determines, in accordance with the Servicing
Standard, that acceptance of such bid would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower bid
is more likely to perform its obligations, or the terms offered by the
prospective buyer making the lower bid are more favorable), provided, that if
any Defaulted Mortgage Loan or REO Property as to which an Appraisal Reduction
has occurred is to be sold by the Special Servicer, then the Special Servicer
shall not, without the approval of the Operating Adviser, if any, accept any bid
for such loan or property that is less than 90% of the appraised value of the
related Mortgaged Property (based on the appraisal used in determining the
related Appraisal Reduction). The Special Servicer, after notice to the
Operating Adviser, if any, shall determine no later than six months prior to the
end of the two-year period referred in Section 9.15 with respect to any REO
Property whether a sale of such REO Property pursuant to any bids being made
with respect thereto is in the best economic interests of the Certificateholders
as a whole. If the Special Servicer so determines in accordance with the
Servicing Standard after notice to the Operating Adviser, if any, that such a
sale would not be in the best interests of the Certificateholders, the Special
Servicer shall seek an extension of such period in the manner described in
Section 9.15.
In determining whether any bid received from an Interested Person
or whether the price to be paid by the Special Servicer or any Affiliate thereof
represents a fair price or market
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value for any Defaulted Mortgage Loan or any REO Property, the Special Servicer
may rely conclusively on the opinion of the value of such REO Property by an
independent MAI-designated appraiser selected by the Trustee at the expense of
the Trust. In determining whether any bid constitutes a fair price or market
value for any Defaulted Mortgage Loan or any REO Property, the Special Servicer
shall take into account, among other factors, the period and amount of any
delinquency on the affected Defaulted Mortgage Loan, the physical condition of
the related Mortgaged Property or such REO Property, the state of the local
economy and the Trust's obligation to dispose of any REO Property within the
two-year period specified in Section 9.15.
(b) Subject to the REMIC Provisions, the Special Servicer shall
act on behalf of the Trust in negotiating and taking any other action necessary
or appropriate in connection with the sale of any Defaulted Mortgage Loan or REO
Property, including the collection of all amounts payable in connection
therewith. Any sale of a Defaulted Mortgage Loan or REO Property shall be
without recourse to, or representation or warranty by, the Trustee, the Paying
Agent, the Fiscal Agent, the Depositor, the Special Servicer, the Servicer, or
the Trust. Notwithstanding the foregoing, nothing herein shall limit the
liability of the Servicer, the Special Servicer or the Trustee to the Trust and
the Certificateholders for failure to perform its duties in accordance herewith.
None of the Special Servicer, the Servicer, the Depositor, the Paying Agent, the
Fiscal Agent or the Trustee shall have any liability to the Trust or any
Certificateholder with respect to the price at which a Defaulted Mortgage Loan
is sold if the sale is consummated in accordance with the terms of this
Agreement.
(c) The proceeds of any sale after deduction of the expenses of
such sale incurred in connection therewith shall be deposited within one
Business Day in the Certificate Account.
(d) Notwithstanding anything herein to the contrary, the Special
Servicer shall not be required to take or refrain from taking any action
pursuant to instructions from the Operating Adviser that would cause it to
violate any term or provision of this Agreement, including the REMIC Provisions
and the Servicing Standard.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class may elect the operating adviser (the "Operating
Adviser"). The Operating Adviser shall be elected for the purpose of receiving
reports and information from the Special Servicer in respect of the Specially
Serviced Mortgage Loans.
(b) An election of an Operating Adviser also shall be held upon
the resignation or removal of the Person acting as Operating Adviser. Notice of
the meeting of the Holders of the Controlling Class shall be mailed or delivered
to each Holder by the Paying Agent, at the direction of the Trustee not less
than 10 nor more than 60 days prior to the meeting. The notice shall state the
place and the time of the meeting, which may be held by telephone. A majority of
Certificate Balance of the Certificates of the then Controlling Class, present
in person or represented by proxy, shall constitute a quorum for the nomination
of an Operating Adviser.
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At the meeting, each Holder shall be entitled to nominate one Person to act as
Operating Adviser. The Trustee shall cause the election of the Operating Adviser
to be held as soon thereafter as is reasonably practicable.
(c) Each Holder of the Certificates of the Controlling Class
shall be entitled to vote in each election of the Operating Adviser. The voting
in each election of the Operating Adviser shall be in writing mailed,
telecopied, delivered or sent by courier and actually received by the Paying
Agent on or prior to the date of such election. Immediately upon receipt by the
Paying Agent of votes (which have not been rescinded) from the Holders of
Certificates representing more than 50% of the Certificate Balance of the
Certificates of the then Controlling Class which are cast for a single Person,
such Person shall be, upon such Person's acceptance, the Operating Adviser. The
Paying Agent shall promptly forward the votes to the Trustee who will establish
the identity of the Operating Advisor. Until an Operating Advisor is elected or
in the event that an Operating Adviser shall have resigned or been removed and a
successor Operating Adviser shall not have been elected, there shall be no
Operating Adviser.
(d) The Operating Adviser may be removed at any time by the
written vote, copies of which must be delivered to the Paying Agent or Trustee,
of more than 50% of the Certificate Balance of the Holders of the Certificates
of the then Controlling Class.
(e) The Trustee shall act as judge of each election and, absent
manifest error, the determination of the results of any election by the Trustee
shall be conclusive. Notwithstanding any other provisions of this Section 9.37,
the Trustee may make such reasonable regulations as it may deem advisable for
any election.
(f) Notwithstanding any provision of this Section 9.37 or any
other provision of this Agreement to the contrary, at any time that the Special
Servicer has been elected as Operating Adviser or no Operating Adviser has been
elected, (i) the Special Servicer shall not be required to deliver notices or
information to, or obtain the consent or approval of, the Operating Adviser and
(ii) to the extent any Person other than the Special Servicer is otherwise
required hereunder to provide notices or information to, or obtain the consent
or approval of, the Operating Adviser, such Person shall be required to provide
such notices or information to, or obtain the consent or approval of, the
Special Servicer.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The
Operating Adviser shall have no liability to the Trust or the Certificateholders
for any action taken, or for refraining from the taking of any action, in good
faith and using reasonable business judgment pursuant to this Agreement, or
using reasonable business judgment. By its acceptance of a Certificate, each
Certificateholder (and Certificate Owner) confirms its understanding that the
Operating Adviser may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that the
Operating Adviser may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates and each
Certificateholder (and Certificate Owner) agrees to take no action against the
Operating Adviser based upon such special relationship or conflict.
Notwithstanding any term in this Agreement, the Special Servicer shall not be
entitled to indemnification from the Trust for any action taken by it at the
direction of the Operating Adviser which is in conflict with the Servicing
Standard.
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SECTION 9.39 DUTIES OF OPERATING ADVISER.
(a) The Operating Adviser may advise, and receive notice from,
the Special Servicer, but is not required to do so on any of the following
actions:
(i) any foreclosure upon or comparable conversion (which
may include acquisition of an REO Property) of the ownership of properties
securing such of the Specially Serviced Mortgage Loans as come into and continue
in default;
(ii) any modification of a Money Term of a Mortgage Loan
other than a modification consisting of the extension of the original Maturity
Date of a Mortgage Loan for two years or less;
(iii) any proposed sale of a Defaulted Mortgage Loan
(other than upon termination of the Trust pursuant to Article X);
(iv) any determination to bring an REO Property into
compliance with Environmental Laws; and
(v) any acceptance of substitute or additional collateral
for a Mortgage Loan.
In addition, the Operating Adviser may direct the Trustee to
remove the Special Servicer at any time upon the appointment and acceptance of
such appointment by a successor to the Special Servicer appointed by the
Operating Adviser; provided that, prior to the effectiveness of any such
appointment, the Trustee shall have received (A) Rating Agency Confirmation from
each Rating Agency and (B) a Nondisqualification Opinion (which shall not be an
expense of the Trustee or the Trust).
(b) The Operating Advisor and any Holder or Certificate Owner of
a Class G, Class H, Class I, Class J, Class K, Class L or Class M Certificate
shall be entitled to receive, upon 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 10.1 TERMINATION OF TRUST UPON REPURCHASE 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
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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
Joseph P. Kennedy, the late Ambassador of the United States to the Court of St.
James, 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 and the Holders of the Class R-I Certificates, who in such
priority (and in the case of the Class R-I Certificateholders, a majority of the
Class R-I Certificateholders), may purchase, in whole only, the Mortgage Loans
and any other property, if any, remaining in the Trust. If any party desires to
exercise such option, it will notify the Trustee who will notify any party with
a prior right to exercise such option. If any party that has been provided
notice by the Trustee notifies the Trustee within ten Business Days after
receiving notice of the proposed purchase that it wishes to purchase the assets
of the Trust, then such party (or, in the event that more than one of such
parties notifies the Trustee that it wishes to purchase the assets of the Trust,
the party with the first right to purchase the assets of the Trust) may purchase
the assets of the Trust in accordance with this Agreement. Upon the Paying
Agent's receipt of the Termination Price set forth below, the Trustee shall
promptly release or cause to be released to the Servicer for the benefit of the
Depositor, the Holder of the majority of the Class 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, and 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
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such termination will be a "qualified liquidation" of each REMIC under Section
860F of the Code, and (ii) the payment of any and all costs associated with such
termination. Such termination shall be made in accordance with Section 10.3.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of
Section 10.1, specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Trustee by first class mail to the
Paying Agent, the Rating Agencies, the Class R-I and REMIC III
Certificateholders mailed no later than ten days prior to the date of such
termination. Such notice shall specify (A) the Distribution Date upon which
final distribution on the Class R-I, Class R-II and REMIC III Certificates will
be made, and upon presentation and surrender of the Class R-I, Class R-II and
REMIC III Certificates at the office or agency of the Certificate Registrar
therein specified, and (B) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distribution being made only upon
presentation and surrender of the Class R-I, Class R-II, and REMIC III
Certificates at the office or agency of the Certificate Registrar therein
specified. The Trustee shall give such notice to the Depositor and the
Certificate Registrar at the time such notice is given to Holders of the Class
R-I, Class R-II and REMIC III Certificates. Upon any such termination, the
duties of the Certificate Registrar with respect to the Class R-I, Class R-II
and REMIC III Certificates shall terminate and the Trustee shall terminate, or
request the Servicer and Paying Agent to terminate, the Certificate Account and
the Distribution Account and any other account or fund maintained with respect
to the Certificates, subject to the Paying Agent's obligation hereunder to hold
all amounts payable to the Class R-I, Class R-II and REMIC III
Certificateholders in trust without interest pending such payment.
(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.
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SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC shall be terminated in accordance
with the following additional requirements, unless at the request of the
Servicer or the Class R-I Certificateholders, as the case may be, the Trustee
seeks, and the Trustee and the Paying Agent subsequently receive an Opinion of
Counsel (at the expense of the Servicer or the Class R-I Certificateholders, as
the case may be), addressed to the Depositor, the Trustee and the Paying Agent
to the effect that the failure of the Trust to comply with the requirements of
this Section 10.3 will not (i) result in the imposition of taxes on "prohibited
transactions" on any REMIC under the REMIC Provisions or (ii) cause any REMIC
Pool to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) Within 89 days prior to the time of the making of the
final payment on the REMIC III Certificates the Servicer shall prepare and the
Trustee on behalf of the REMIC I Interests, REMIC II or REMIC III shall adopt a
plan of complete liquidation of the REMIC I Pool, meeting the requirements of a
qualified liquidation under the REMIC Provisions, which plan shall be signed by
the Trustee; provided that the Trustee shall have no obligation to determine the
accuracy or adequacy of such plan of liquidation other than that such plan of
liquidation meets the requirements outlined in Sections 10.1, 10.2 and 10.3;
(ii) At or after the time of adoption of such a plan of
complete liquidation and at or prior to the time of making of the final payment
on the REMIC III Certificates, the Trustee shall sell all of the assets of the
Trust for cash at the Termination Price; provided that if the Holders of the
Class R-I Certificates are purchasing the assets of the Trust, 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.
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(c) On the final federal income tax return for each REMIC Pool,
the Paying Agent shall attach a statement specifying the date of the adoption of
the plan of liquidation.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
The provisions of this Article XI shall apply to each of the
REMIC I Regular Interests, REMIC II Regular Interests, REMIC Regular
Certificateholders and Residual Certificateholders to the extent appropriate.
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Servicer or
operation and management of the Trust, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members 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
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and every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee and
the Paying Agent, within fifteen days after receipt by the Certificate Registrar
of a request by the Trustee or Paying Agent, as the case may be, in writing, a
list, in such form as the Trustee or Paying Agent, as the case may be, may
reasonably require, of the names and addresses of the Certificateholders of each
Class as of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special
Servicer, the Servicer, the Paying Agent, or three or more Holders (hereinafter
referred to as "applicants," with a single Person which (together with its
Affiliates) is the Holder of more than one Class of Certificates being viewed as
a single "applicant" for these purposes) apply in writing to the Trustee, and
such application states that the applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, 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 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
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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 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 and Class L Certificates, together with the REMIC
III Class M Regular Interest and the REMIC III Excess Interest, shall be
designated as the "regular interests" in REMIC III and the Class R-III
Certificates shall be designated as the sole class of "residual interests" in
REMIC III.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Paying Agent shall pay all routine tax related expenses
(not including any taxes, however denominated, including any additions to tax,
penalties and interest) of each REMIC Pool, excluding any professional fees or
extraordinary expenses related to audits or any administrative or judicial
proceedings with respect to each REMIC Pool that involve the Internal Revenue
Service or state tax authorities.
(d) The Paying Agent shall cause to be prepared, signed, and
timely filed with the Internal Revenue Service, on behalf of each REMIC Pool, an
application for a taxpayer identification number for such REMIC Pool on Internal
Revenue Service Form SS-4. The Paying Agent, upon receipt from the Internal
Revenue Service of the Notice of Taxpayer Identification Number Assigned, shall
promptly forward a copy of such notice to the Depositor and the Servicer. The
Paying Agent shall prepare and file Form 8811 on behalf of each REMIC Pool and
shall designate an appropriate Person to respond to inquiries by or on behalf of
Certificateholders for original issue discount and related information in
accordance with applicable provisions of the Code.
(e) The Paying Agent shall prepare and file all of each REMIC
Pool's federal and state income or franchise tax and information returns as such
REMIC Pool's direct representative; the expenses of preparing such returns shall
be borne by the Paying Agent and the cost of filing such returns shall be borne
by the applicable REMIC Pool, except that if additional state tax returns are
required to be filed in more than three states, the Paying Agent shall be
entitled, with respect to any such additional filings, to (i) be paid a
reasonable fee and (ii) receive its reasonable costs and expenses, both as
amounts reimbursable pursuant to Section 5.2(a)(vi) hereof. The Depositor, the
Servicer and the Special Servicer shall provide on a timely basis to the Paying
Agent or its designee such information with respect to the Trust or any REMIC
Pool as is in its possession, which the Depositor or the Servicer and the
Special Servicer has received or prepared by virtue of its role as Depositor or
Servicer and the Special Servicer hereunder and reasonably requested by the
Paying Agent to enable it to perform its obligations under this subsection, and
the Paying Agent shall be entitled to conclusively rely on such information in
the performance of its obligations hereunder. The Depositor shall indemnify the
Trust and the
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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 Trustee, the Fiscal Agent, the Depositor or
any REMIC Pool for any expense incurred by the 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.
(g) The Paying Agent shall forward to the Depositor copies of
quarterly and annual REMIC tax returns and Form 1099 information returns and
such other information within the control of the Paying Agent as the Depositor
may reasonably request in writing. Moreover, the Paying Agent shall forward to
each Certificateholder such forms and furnish such information within its
control as are required by the Code to be furnished to them, shall prepare and
file with the appropriate state authorities as may to the actual knowledge of a
Responsible Officer of the Paying Agent be required by applicable law and shall
prepare and disseminate to Certificateholders Forms 1099 (or otherwise furnish
information within the control of the Paying Agent) to the extent required by
applicable law. The Paying Agent will make available to any Certificateholder
any tax related information required to be made available to Certificateholders
pursuant to the Code and any regulations thereunder.
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(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 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
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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.
(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
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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.
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
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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 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.
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.
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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 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
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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 (including the Class R-I, Class R-II and Class R-III
Certificateholders); provided, however, that no such Amendment may modify
Section 8.18 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 written notification of the substance 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 Stearns Commercial Mortgage
Securities Inc., 245 Park Avenue, New York, New York 10167, Attention: James G.
Reichek, with a copy to Joseph Jurkowski, Esq., telecopy number: (212) 270-2619;
(B) in the case of the Trustee and the Fiscal Agent at the Corporate Trust
Office at LaSalle Bank National Association, 135 South LaSalle Street, Suite
1625, Chicago, Illinois 60674, Attention: Asset-Backed Securities Trust
Services-Bear Stearns Commercial Mortgage Securities Inc., Series 1999-WF2; (C)
in the case of the Servicer, Wells Fargo Bank, National Association, 417
Montgomery Street, 5th Floor, San Francisco, California 94111, Attention:
Portfolio Manager, with a copy to Robert F. Darling, Esq., Wells Fargo Bank,
National Association, 633 Folsom Street, San Francisco, California 94104; (D) in
the case of the
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Special Servicer, GMAC Commercial Mortgage Corporation, 550 California Street,
San Francisco, California 94104, Attention: Henry Bieber (with a copy to General
Counsel at such address) or (E) in the case of the Paying Agent at Norwest Bank
Minnesota, National Association, 11000 Broken Land Parkway, Columbia, Maryland
21044-3562, Attention: Corporate Trust Services (CMBS)-Bear Stearns Commercial
Mortgage Securities Inc., Series 1999-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.
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES
(a) The Depositor shall give prompt notice to the Rating
Agencies, Special Servicer and the Operating Adviser of the occurrence of any of
the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section
13.3 hereof;
(ii) the Interim Certification and the Final Certification
required pursuant to Section 2.2 hereof;
199
<PAGE>
(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 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 or the Special Servicer pursuant to
Section 7.7 or 7.14 hereof;
(vi) waiver of a due-on-sale clause as provided in Section
8.7;
(vii) waiver of a prohibition on subordinate liens on the
Mortgaged Properties;
(viii) the making of a final payment pursuant to Section
10.3 hereof; and
(ix) a Servicing Transfer Event.
(b) All notices to the Rating Agencies shall be in writing and
sent by first class mail, telecopy or overnight courier, as follows:
If to DCR, to:
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60603
Attention: Structured Finance -Commercial Real Estate Monitoring
Fax: (312) 263-2852
If to Moody's, to:
99 Church Street
New York, New York 10007
Attention: Commercial Mortgage Surveillance
Fax: (212) 553-0300
If to any other Rating Agency, at such address as shall be
provided in writing to the Depositor by such Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii), the
successor trustee shall give prompt notice to the Rating Agencies of the
occurrence of any of the following events:
(i) the resignation or removal of the Trustee pursuant to
Section 7.6; or
(ii) the appointment of a successor trustee pursuant to
Section 7.7; or
(iii) the appointment of a successor Operating Adviser
pursuant to Section 9.37.
200
<PAGE>
(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 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, Paying Agent or Trustee shall be given by
such parties, respectively, on a best efforts basis and only as a matter of
courtesy and accommodation to the Rating Agencies, unless otherwise specifically
required herein, and such parties, respectively, shall have no liability for
failure to deliver any such notice or document to the Rating Agencies.
SECTION 13.11 COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original, and all
of which together shall constitute one and the same instrument.
SECTION 13.12 INTENTION OF PARTIES It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans and related rights
and property to the Trustee, for the benefit of the Certificateholders, by the
Depositor as provided in Section 2.1 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans or any related property is held to be
the property of the Depositor, or if for any other reason this Agreement is held
or deemed to create a security interest in the Mortgage Loans or any related
property, then this Agreement shall be deemed to be a security agreement; and
the conveyance provided for in Section 2.1 shall be deemed to be a grant by the
Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the Depositor's right, title, and interest, whether
now owned or hereafter acquired, in and to:
(i) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the property
described in clauses (1)-(4) below: (1) the Mortgage Loans, including
the related Mortgage Notes, Mortgages, security agreements, and title,
hazard and other insurance policies identified on the Mortgage Loan
Schedule, including all Qualified Substitute Mortgage Loans, all
distributions with respect thereto payable on and after the Cut-Off
Date, and the Mortgage Files; (2) the Distribution Account, all REO
Accounts, 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,
201
<PAGE>
advices of credit, investment property, and other rights arising from or
by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other
Persons with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on liquidation
of any investment purchased at a discount); and
(iii) All cash and non-cash proceeds of the collateral
described in clauses (i) and (ii) above.
The possession by the Custodian (or, if there is no Custodian,
the Trustee) of the Mortgage Notes, the Mortgages and such other goods, letters
of credit, advices of credit, instruments, money, documents, chattel paper or
certificated securities shall be deemed to be possession by the secured party or
possession by a purchaser for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-115 and 9-305 thereof) as in force in the relevant jurisdiction.
Notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for, the Trustee, as applicable, for the purpose of perfecting such
security interest under applicable law.
The Depositor and, at the Depositor's direction, the Servicer and
the Trustee, shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. The Servicer shall file, at the expense of the Trust as an
Additional Trust Expense, all filings necessary to maintain the effectiveness of
any original filings necessary under the Uniform Commercial Code as in effect in
any jurisdiction to perfect the Trustee's security interest in such property,
including without limitation (i) continuation statements, and (ii) such other
statements as may be occasioned by any transfer of any interest of the Servicer
or the Depositor in such property. In connection herewith, the Trustee shall
have all of the rights and remedies of a secured party and creditor under the
Uniform Commercial Code as in force in the relevant jurisdiction.
SECTION 13.13 RECORDATION OF AGREEMENT This Agreement is subject
to recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are 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.
202
<PAGE>
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.
<TABLE>
<CAPTION>
<S> <C>
BEAR STEARNS COMMERCIAL WELLS FARGO BANK, NATIONAL
MORTGAGE SECURITIES INC., ASSOCIATION, as Servicer
as Depositor
By: /s/ Michael A. Forastiere By: /s/ Stewart E. McAdams
------------------------------------ -------------------------------------
Name: Michael A. Forastiere Name: Stewart E. McAdams
Title: Vice President Title: Vice President
GMAC COMMERCIAL MORTGAGE LASALLE BANK NATIONAL
CORPORATION, as Special Servicer ASSOCIATION, as Trustee
By: /s/ John Maute By: /s/ Michael B. Evans
------------------------------------ -------------------------------------
Name: John Maute Name: Michael B. Evans
Title: Senior Vice President Title: Senior Vice President
ABN AMRO BANK N.V., as Fiscal Agent NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Paying
Agent, Certificate Registrar and
By: /s/ Mary C. Casey Authenticating Agent
------------------------------------
Name: Mary C. Casey
Title: Vice President
and By: /s/ Jack A. Aini
------------------------------------
Name: Jack A. Aini
Title: Vice President
By: /s/ Robert C. Smolka
------------------------------------
Name: Robert C. Smolka
Title: Group Vice President
</TABLE>
S-1
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 29th day of June, 1999, before me, a notary public in and
for said State, personally appeared Michael A. Forastiere, 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 Stearns
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.
/s/ Stavely H. Lord
-------------------------------
Notary Public
[Notarial Seal]
STAVELY H. LORD
Notary Public, State of New York
No. 01LO6008564
Qualified in New York County
Commission Expires 6/15/2000
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On this 30th day of June, 1999, before me, Julie Brewer, Notary
Public personally appeared Stewart E. McAdams, proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person , or entity
upon behalf of which the person acted, executed the instrument.
WITNESS, my hand and official seal.
/s/ Julie Brewer
----------------------------
Notary Public
[Notarial Seal]
Julie Brewer
Commission # 1206738
Notary Public - California
San Francisco County
My Comm. Expires Jan. 2, 2003
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ORANGE )
On the 30th day of June, 1999, before me, a notary public in and
for said State, personally appeared John Maute known to me to be a Sr. Vice
President of GMAC Commercial Mortgage Corporation, one of the entities that
executed the within instrument, and acknowledged to me that such entity executed
the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Rosalinda A. Expinoza
------------------------------------
Notary Public
[Notarial Seal]
Rosalinda A. Expinoza
Commission # 1134822
Notary Public - California
Orange County
My Comm. Expires Apr. 18, 2001
<PAGE>
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this 1st day of July, 1999, before me, Michael C. Dombai, a
notary public in and for said State, personally appeared Michael B. Evans, known
to me to be a Senior Vice President of LaSalle Bank National Association, f/k/a
LaSalle National Bank, one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Michael C. Dombai
--------------------------------------
Michael C. Dombai
My Commission Expires: 12-01-2001
[Notarial Seal]
Michael C. Dombai
Notary Public State of Illinois
My Commission Expires 12/01/2001
<PAGE>
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this 1st day of July, 1999, before me, Michael C. Dombai, a
notary public in and for said State, personally appeared Mary C. Casey, Vice
President, and Robert C. Smolka, Group Vice President, respectively, of ABN AMRO
BANK N.V., one of the entities that executed the within instrument, and also
known to me to be the persons who executed it on behalf of such entity, and
acknowledged to me that such entitu executed the within instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Michael C. Dombai
--------------------------------------
Michael C. Dombai
My Commission Expires: 12-01-2001
[Notarial Seal]
Michael C. Dombai
Notary Public State of Illinois
My Commission Expires 12/01/2001
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 30th day of June, 1999, before me, a notary public in and
for said State, personally appeared Jack A. Aini, 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 Norwest Bank
Minnesota, National Association, and acknowledged to me that such nationally
chartered bank 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.
/s/ Sean N. Egeran
------------------------------
Notary Public
[Notarial Seal]
SEAN N. EGERAN
Notary Public, State of New York
No. 01-6023286
Qualified in New York County
Commission Expires April 19, 2001
<PAGE>
- --------------------------------------------------------------------------------
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
AS DEPOSITOR,
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS SERVICER,
AND
GMAC COMMERCIAL MORTGAGE CORPORATION,
AS SPECIAL SERVICER,
AND
LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE
AND
ABN AMRO BANK N.V.,
AS FISCAL AGENT
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
AS PAYING AGENT
-------------------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF JULY 1, 1999
-------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-WF2
- --------------------------------------------------------------------------------
<PAGE>
EXHIBITS
<TABLE>
<S> <C>
EXHIBIT A [FORM OF CERTIFICATES]............................................................................................A-1-1
EXHIBIT B-1 FORM OF INITIAL CERTIFICATION OF TRUSTEE........................................................................B-1-1
EXHIBIT B-2 FORM OF FINAL CERTIFICATION OF TRUSTEE..........................................................................B-2-1
EXHIBIT C FORM OF REQUEST FOR RELEASE.........................................................................................C-1
EXHIBIT D-1 FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES......................D-1-1
EXHIBIT D-2A FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES..................D-2A-1
EXHIBIT D-2B FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES.................D-2B-1
EXHIBIT D-3A FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF INTERESTS IN BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES......D-3A-1
EXHIBIT D-3B FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF INTERESTS IN BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES.....D-3B-1
EXHIBIT E-1A FORM OF TRANSFER AFFIDAVIT AND AGREEMENT FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES........................E-1A-1
EXHIBIT E-1B FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES..................................E-1B-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 CEDEL 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 FORM OF ANNUAL REPORT...............................................................................................N-1
EXHIBIT O RESERVED............................................................................................................O-1
EXHIBIT P FORM OF SPECIAL SERVICER MONTHLY REPORT.............................................................................P-1
EXHIBIT Q FORM OF PAYING AGENT REPORT.........................................................................................Q-1
EXHIBIT R RESERVED............................................................................................................R-1
EXHIBIT S-1 FORM OF POWER OF ATTORNEY FOR SERVICER..........................................................................S-1-1
</TABLE>
-i-
EXHIBITS TO POOLING AND SERVICING AGREEMENT
<PAGE>
EXHIBITS
(CONT'D)
<TABLE>
<S> <C>
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 STEARNS LOAN SCHEDULE.......................................................................................S-I-1
SCHEDULE II WELLS FARGO LOAN SCHEDULE......................................................................................S-II-1
</TABLE>
-ii-
EXHIBITS TO POOLING AND SERVICING AGREEMENT
<PAGE>
EXHIBIT A
[FORMS OF CERTIFICATES]
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-1 CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.800% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $200,000,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
DATE OF POOLING AND SERVICING AGREEMENT: THE CUT OFF-DATE: $1,080,711,380
AS OF JULY 1, 1999
SERVICER: WELLS FARGO BANK, NATIONAL
CUT-OFF DATE: JULY 1, 1999 ASSOCIATION
CLOSING DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE ASSOCIATION
CLASS A-1 CERTIFICATES AS OF THE CLOSING
DATE: $338,780,000 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BD 9
CERTIFICATE NO. A-1-1
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 STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, the Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
<PAGE>
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-1 Certificates. The Certificates are designated as the
Bear Stearns Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF2 and are issued in 18 classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans
<PAGE>
allocated to any Class of Certificates will be allocated pro rata among the
outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in Pooling and Servicing Agreement.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
<PAGE>
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
------------------------------------
AUTHORIZED OFFICER
Dated:
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
-----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
CLASS A-1 CERTIFICATE
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-1 CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.800% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $138,780,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
DATE OF POOLING AND SERVICING AGREEMENT: THE CUT-OFF DATE: $1,080,711,380
AS OF JULY 1, 1999
SERVICER: WELLS FARGO BANK, NATIONAL
CUT-OFF DATE: JULY 1, 1999 ASSOCIATION
CLOSING DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE ASSOCIATION
CLASS A-1 CERTIFICATES AS OF THE CLOSING
DATE: $338,780,000 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BD 9
CERTIFICATE NO. A-1-2
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 STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, the Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
<PAGE>
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-1 Certificates. The Certificates are designated as the
Bear Stearns Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF2 and are issued in 18 classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans
<PAGE>
allocated to any Class of Certificates will be allocated pro rata among the
outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in Pooling and Servicing Agreement.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
<PAGE>
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
------------------------------------
AUTHORIZED OFFICER
Dated:
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
--------------------------------
AUTHORIZED SIGNATORY
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common
Act ..................
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
- ----------------------------
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------
- ---------------------------- ---------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee 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 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.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-2 CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR, OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 7.080% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $200,000,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BE 7
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-1 CERTIFICATES AS OF THE CLOSING
DATE: $525,789,000 CERTIFICATE NO. A-2-1
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 STEARNS 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 Stearns 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
<PAGE>
summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-2 Certificates. The Certificates are designated as the
Bear Stearns Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF2 and are issued in 18 classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
<PAGE>
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
CLASS A-2 CERTIFICATE
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-2 CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR, OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 7.080% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $200,000,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BE 7
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-2 CERTIFICATES AS OF THE CLOSING
DATE: $525,789,000 CERTIFICATE NO. A-2-2
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 STEARNS 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 Stearns 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
<PAGE>
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-2 Certificates. The Certificates are designated as the
Bear Stearns Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF2 and are issued in 18 classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
<PAGE>
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
CLASS A-2 CERTIFICATE
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-2 CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR, OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 7.080% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $125,789,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BE 7
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-2 CERTIFICATES AS OF THE CLOSING
DATE: $525,789,000 CERTIFICATE NO. A-2-3
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 STEARNS 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 Stearns 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
<PAGE>
summary of certain of the pertinent provisions of which is set forth hereafter.
The Trust consists primarily of the Mortgage Loans, such amounts as shall from
time to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-2 Certificates. The Certificates are designated as the
Bear Stearns Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-WF2 and are issued in 18 classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
<PAGE>
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[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 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 SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA)
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SECTION 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
<PAGE>
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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS B CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 7.296% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $43,229,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BF-4
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS B CERTIFICATES AS OF THE CLOSING
DATE: $43,229,000 CERTIFICATE NO. B-1
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 STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
<PAGE>
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class B Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans
<PAGE>
allocated to any Class of Certificates will be allocated pro rata among the
outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[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 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 SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA)
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SECTION 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
<PAGE>
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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS C CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 7.376% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $43,229,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-0FF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BG 2
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS C CERTIFICATES AS OF THE CLOSING
DATE: $43,229,000 CERTIFICATE NO. C-1
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class C Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[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 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 SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA)
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SECTION 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
<PAGE>
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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS D CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 7.376%. BASED ON ITS ISSUE PRICE OF 98.66388%, INCLUDING ACCRUED
INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL
PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS DEFINED IN
THE PROSPECTUS SUPPLEMENT DATED JUNE 25, 1999 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
<PAGE>
CERTIFICATE IS APPROXIMATELY 1.3361%; AND (II) THE ANNUAL YIELD OF THIS
CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 7.4349%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 7.376% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $10,807,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BH 0
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS D CERTIFICATES AS OF THE CLOSING
DATE: $10,807,000 CERTIFICATE NO. D-1
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class D Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[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 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 SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA)
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SECTION 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
<PAGE>
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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS E CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 7.376%. BASED ON ITS ISSUE PRICE OF 96.96542%, INCLUDING ACCRUED
INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL
PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS DEFINED IN
THE PROSPECTUS SUPPLEMENT DATED JUNE 25, 1999 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
<PAGE>
CERTIFICATE IS APPROXIMATELY 3.0346%; AND (II) THE ANNUAL YIELD OF THIS
CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 7.6374%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 7.376% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $27,018,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BJ 6
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS E CERTIFICATES AS OF THE CLOSING
DATE: $27,018,000 CERTIFICATE NO. E-1
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class E Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
[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 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 SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA)
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SECTION 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE FISCAL AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL
SERVICER, THE PAYING AGENT, THE
<PAGE>
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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS F CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 7.376%. BASED ON ITS ISSUE PRICE OF 90.51501%, INCLUDING ACCRUED
INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO ITS INITIAL
PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS DEFINED IN
THE PROSPECTUS SUPPLEMENT DATED JUNE 25, 1999 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
9.485%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL, COMPOUNDED
MONTHLY, IS APPROXIMATELY 8.4209%.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 7.376% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $10,807,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BK 3
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS F CERTIFICATES AS OF THE CLOSING
DATE: $10,807,000 CERTIFICATE NO. F-1
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 STEARNS 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
<PAGE>
and Servicing Agreement, dated as specified above (the "Pooling and Servicing
Agreement"), among Bear Stearns Commercial Mortgage Securities Inc. (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), the Trustee, the Fiscal Agent, the Paying
Agent, Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class F Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a
<PAGE>
final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[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 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 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
<PAGE>
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS G CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
<PAGE>
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 JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 67.70485%, 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 JUNE 23, 1999 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 32.2952%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 10.2966%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $21,614,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BM 9
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS G CERTIFICATES AS OF THE CLOSING
DATE: $21,614,000 CERTIFICATE NO. G-1
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class G Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[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 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 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
<PAGE>
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS AND
REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS H CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
<PAGE>
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 JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 65.04063%, 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 JUNE 23, 1999 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 34.9594%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 10.7274%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $16,211,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BN 7
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS H CERTIFICATES AS OF THE CLOSING
DATE: $16,211,000 CERTIFICATE NO. H-1
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class H Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[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 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 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
<PAGE>
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
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 OF THE PAYING AGENT.
<PAGE>
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 JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 60.34918%, 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 JUNE 23, 1999 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 39.6508%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 11.4914%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $8,105,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BP 2
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS I CERTIFICATES AS OF THE CLOSING
DATE: $8,105,000 CERTIFICATE NO. I-1
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class I Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[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 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 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
<PAGE>
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
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 OF THE PAYING AGENT.
<PAGE>
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 JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 53.79456%, 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 JUNE 23, 1999 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 46.2054%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 12.6898%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $9,456,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BQ 0
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS J CERTIFICATES AS OF THE CLOSING
DATE: $9,456,000 CERTIFICATE NO. J-1
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class J Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[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 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 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
<PAGE>
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST
FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE
CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE
OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
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 OF THE PAYING AGENT.
<PAGE>
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 JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 49.83488%, 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 JUNE 23, 1999 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 50.1651%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 13.4097%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $10,807,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BR 8
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS K CERTIFICATES AS OF THE CLOSING
DATE: $10,807,000 CERTIFICATE NO. K-1
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class K Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[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 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 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
<PAGE>
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST
FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE
CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE
OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
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 OF THE PAYING AGENT.
<PAGE>
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 JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 44.94893%, 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 JUNE 23, 1999 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 55.0511%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 14.5893%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $4,053,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BS 6
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS L CERTIFICATES AS OF THE CLOSING
DATE: $4,053,000 CERTIFICATE NO. L-1
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class L Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[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 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 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
<PAGE>
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE
BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
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 OF THE PAYING AGENT.
<PAGE>
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 JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 26.94485%, 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 JUNE 23, 1999 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 73.0552%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 22.8811%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $10,806,380 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BT 4
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS M CERTIFICATES AS OF THE CLOSING
DATE: $10,806,380 CERTIFICATE NO. M-1
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class M Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[FORM OF CLASS X CERTIFICATE]
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES WILL BE DECREASED BY THE PORTION
OF PRINCIPAL DISTRIBUTIONS AND REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO
THE CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS I, CLASS J, CLASS K, CLASS L AND CLASS M CERTIFICATES.
ACCORDINGLY, THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES MAY BE LESS THAN
THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS
CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 0.4312%. BASED ON AN ISSUE PRICE OF 2.12038%% OF
ITS INITIAL NOTIONAL AMOUNT (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE
25, 1999 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 JUNE 25, 1999 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
3.4811%; AND (II) THE ANNUAL YIELD OF
<PAGE>
THIS CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.1950%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 0.431204% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $200,000,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
INITIAL NOTIONAL AMOUNT OF THIS CLASS X SERVICER: WELLS FARGO BANK, NATIONAL
CERTIFICATE: $1,080,711,380 ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER: GMAC COMMERCIAL
AS OF JULY 1, 1999 MORTGAGE CORPORATION
CUT-OFF DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JULY 1, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BL 1
CERTIFICATE NO.: X-1
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, the Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Notional Amount of this
Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out
of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate specified above on the Notional
Amount of this Certificate immediately prior to each Distribution Date. Interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
CLASS X CERTIFICATE
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES WILL BE DECREASED BY THE PORTION
OF PRINCIPAL DISTRIBUTIONS AND REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO
THE CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS I, CLASS J, CLASS K, CLASS L AND CLASS M CERTIFICATES.
ACCORDINGLY, THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES MAY BE LESS THAN
THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS
CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 0.4312%. BASED ON AN ISSUE PRICE OF 2.12038%% OF
ITS INITIAL NOTIONAL AMOUNT (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE
25, 1999 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 JUNE 25, 1999 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
3.4811%; AND (II) THE ANNUAL YIELD OF
<PAGE>
THIS CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.1950%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 0.431204% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $200,000,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
INITIAL NOTIONAL AMOUNT OF THIS CLASS X SERVICER: WELLS FARGO BANK, NATIONAL
CERTIFICATE: $1,080,711,380 ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER: GMAC COMMERCIAL
AS OF JULY 1, 1999 MORTGAGE CORPORATION
CUT-OFF DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JULY 1, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BL 1
CERTIFICATE NO.: X-2
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, the Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Notional Amount of this
Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out
of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate specified above on the Notional
Amount of this Certificate immediately prior to each Distribution Date. Interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
CLASS X CERTIFICATE
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES WILL BE DECREASED BY THE PORTION
OF PRINCIPAL DISTRIBUTIONS AND REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO
THE CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS I, CLASS J, CLASS K, CLASS L AND CLASS M CERTIFICATES.
ACCORDINGLY, THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES MAY BE LESS THAN
THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS
CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 0.4312%. BASED ON AN ISSUE PRICE OF 2.12038%% OF
ITS INITIAL NOTIONAL AMOUNT (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE
25, 1999 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 JUNE 25, 1999 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
3.4811%; AND (II) THE ANNUAL YIELD OF
<PAGE>
THIS CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.1950%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 0.431204% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $200,000,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
INITIAL NOTIONAL AMOUNT OF THIS CLASS X SERVICER: WELLS FARGO BANK, NATIONAL
CERTIFICATE: $1,080,711,380 ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER: GMAC COMMERCIAL
AS OF JULY 1, 1999 MORTGAGE CORPORATION
CUT-OFF DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JULY 1, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BL 1
CERTIFICATE NO.: X-3
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, the Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Notional Amount of this
Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out
of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate specified above on the Notional
Amount of this Certificate immediately prior to each Distribution Date. Interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
CLASS X CERTIFICATE
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES WILL BE DECREASED BY THE PORTION
OF PRINCIPAL DISTRIBUTIONS AND REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO
THE CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS I, CLASS J, CLASS K, CLASS L AND CLASS M CERTIFICATES.
ACCORDINGLY, THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES MAY BE LESS THAN
THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS
CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 0.4312%. BASED ON AN ISSUE PRICE OF 2.12038%% OF
ITS INITIAL NOTIONAL AMOUNT (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE
25, 1999 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 JUNE 25, 1999 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
3.4811%; AND (II) THE ANNUAL YIELD OF
<PAGE>
THIS CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.1950%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 0.431204% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $200,000,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
INITIAL NOTIONAL AMOUNT OF THIS CLASS X SERVICER: WELLS FARGO BANK, NATIONAL
CERTIFICATE: $1,080,711,380 ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER: GMAC COMMERCIAL
AS OF JULY 1, 1999 MORTGAGE CORPORATION
CUT-OFF DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JULY 1, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BL 1
CERTIFICATE NO.: X-4
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, the Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Notional Amount of this
Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out
of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate specified above on the Notional
Amount of this Certificate immediately prior to each Distribution Date. Interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
CLASS X CERTIFICATE
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES WILL BE DECREASED BY THE PORTION
OF PRINCIPAL DISTRIBUTIONS AND REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO
THE CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS I, CLASS J, CLASS K, CLASS L AND CLASS M CERTIFICATES.
ACCORDINGLY, THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES MAY BE LESS THAN
THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS
CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 0.4312%. BASED ON AN ISSUE PRICE OF 2.12038%% OF
ITS INITIAL NOTIONAL AMOUNT (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE
25, 1999 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 JUNE 25, 1999 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
3.4811%; AND (II) THE ANNUAL YIELD OF
<PAGE>
THIS CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.1950%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 0.431204% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $200,000,000 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
INITIAL NOTIONAL AMOUNT OF THIS CLASS X SERVICER: WELLS FARGO BANK, NATIONAL
CERTIFICATE: $1,080,711,380 ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER: GMAC COMMERCIAL
AS OF JULY 1, 1999 MORTGAGE CORPORATION
CUT-OFF DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JULY 1, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BL 1
CERTIFICATE NO.: X-5
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, the Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Notional Amount of this
Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out
of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate specified above on the Notional
Amount of this Certificate immediately prior to each Distribution Date. Interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
CLASS X CERTIFICATE
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER OR ANY OF
THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH
ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES WILL BE DECREASED BY THE PORTION
OF PRINCIPAL DISTRIBUTIONS AND REALIZED LOSSES ON THE CERTIFICATES ALLOCABLE TO
THE CLASS A-1, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS I, CLASS J, CLASS K, CLASS L AND CLASS M CERTIFICATES.
ACCORDINGLY, THE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES MAY BE LESS THAN
THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS
CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 0.4312%. BASED ON AN ISSUE PRICE OF 2.12038%% OF
ITS INITIAL NOTIONAL AMOUNT (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE
25, 1999 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 JUNE 25, 1999 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
3.4811%; AND (II) THE ANNUAL YIELD OF
<PAGE>
THIS CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.1950%.
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 0.431204% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $80,711,380 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
INITIAL NOTIONAL AMOUNT OF THIS CLASS X SERVICER: WELLS FARGO BANK, NATIONAL
CERTIFICATE: $1,080,711,380 ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER: GMAC COMMERCIAL
AS OF JULY 1, 1999 MORTGAGE CORPORATION
CUT-OFF DATE: JULY 1, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: JULY 1, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: 07383F BL 1
CERTIFICATE NO.: X-6
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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor," which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, the Servicer and the Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Notional Amount of this
Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out
of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate specified above on the Notional
Amount of this Certificate immediately prior to each Distribution Date. Interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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.
<PAGE>
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-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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
PERCENTAGE INTEREST OF THIS CLASS R-I APPROXIMATE AGGREGATE PRINCIPAL
CERTIFICATE: 100% BALANCE OF THE MORTGAGE LOANS AFTER
DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF JULY 1, 1999
SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: JULY 1, 1999
SPECIAL SERVICER: GMAC COMMERCIAL
CLOSING DATE: JULY 1, 1999 MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: N/A
CERTIFICATE NO.: R-I-1
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
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT Bear, Stearns Securities Corp. 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 Stearns Commercial Mortgage Securities Inc. (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Fiscal Agent, the Paying Agent, Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
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 Stearns Commercial Mortgage Securities
Inc. Commercial Mortgage Pass-Through Certificates, Series 1999-WF2 and are
issued in 18 Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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.
<PAGE>
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 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
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
PERCENTAGE INTEREST OF THIS CLASS R-II APPROXIMATE AGGREGATE PRINCIPAL
CERTIFICATE: 100% BALANCE OF THE MORTGAGE LOANS AFTER
DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF JULY 1, 1999
SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: JULY 1, 1999
SPECIAL SERVICER: GMAC COMMERCIAL
CLOSING DATE: JULY 1, 1999 MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: N/A
CERTIFICATE NO.: R-II-1
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
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT Bear, Stearns Securities Corp. 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 Stearns Commercial Mortgage Securities Inc. (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Fiscal Agent, the Paying Agent, Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
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 Stearns Commercial Mortgage Securities
Inc. Commercial Mortgage Pass-Through Certificates, Series 1999-WF2 and are
issued in 18 classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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.
<PAGE>
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 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
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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.
<PAGE>
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 CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
PERCENTAGE INTEREST OF THIS CLASS R-III APPROXIMATE AGGREGATE PRINCIPAL
CERTIFICATE: 100% BALANCE OF THE MORTGAGE LOANS AFTER
DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF JULY 1, 1999
SERVICER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: JULY 1, 1999
SPECIAL SERVICER: GMAC COMMERCIAL
CLOSING DATE: JULY 1, 1999 MORTGAGE CORPORATION
FIRST DISTRIBUTION DATE: AUGUST 16, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION
CUSIP NO: N/A
CERTIFICATE NO. R-III-1
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
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT Bear, Stearns Securities Corp. 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 Stearns Commercial Mortgage Securities Inc. (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Fiscal Agent, the Paying Agent, Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
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 Stearns Commercial Mortgage Securities
Inc. Commercial Mortgage Pass-Through Certificates, Series 1999-WF2 and are
issued in 18 classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
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
<PAGE>
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 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.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[FORM OF CLASS G CERTIFICATE
REGULATION S 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 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 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
<PAGE>
THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE
ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE
APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101), OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF
A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO
THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH
PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST
FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
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
<PAGE>
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 67.70485%, 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 JUNE 23, 1999 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 32.2952%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 10.2966%.
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.
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
OFFERING OF THE CERTIFICATES AND (B) JULY 1, 1999, 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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $0 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS G CERTIFICATES AS OF THE CLOSING PAYING AGENT: NORWEST BANK
DATE: $21,614,000 MINNESOTA, NATIONAL ASSOCIATION
ISIN NO. US07383FBM95
CERTIFICATE NO. SG-1
CLASS G CERTIFICATE
REGULATION S 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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class G Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[FORM OF CLASS H CERTIFICATE
REGULATION S 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 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 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
<PAGE>
USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE
APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101), OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND
THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR (B) IF SUCH
CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN
CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT
SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR
TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN
THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT
SUBJECT THE TRUSTEE, THE 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.
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
<PAGE>
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 65.04063%, 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 JUNE 23, 1999 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 34.9594%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 10.7274%.
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.
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF (A) THE
COMMENCEMENT OF THE OFFERING OF THE CERTIFICATES AND (B) JULY 1, 1999, 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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $0 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS H CERTIFICATES AS OF THE CLOSING PAYING AGENT: NORWEST BANK
DATE: $16,211,000 MINNESOTA, NATIONAL ASSOCIATION
ISIN NO. US07383FBN78
CERTIFICATE NO. SH-1
CLASS H CERTIFICATE
REGULATION S 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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class H Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[FORM OF CLASS I CERTIFICATE
REGULATION S 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 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 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
<PAGE>
USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE
APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101), OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND
THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR (B) IF SUCH
CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN
CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT
SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR
TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA,
THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY
SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN
THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT
SUBJECT THE TRUSTEE, THE 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.
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
<PAGE>
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 60.34918%, 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 JUNE 23, 1999 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 39.6508%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 11.4914%.
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.
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
OFFERING OF THE CERTIFICATES AND (B) JULY 1, 1999, 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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $0 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS I CERTIFICATES AS OF THE CLOSING PAYING AGENT: NORWEST BANK
DATE: $8,105,000 MINNESOTA, NATIONAL ASSOCIATION
ISIN NO. US07383FBP27
CERTIFICATE NO. SI-1
CLASS I CERTIFICATE
REGULATION S 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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class I Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[FORM OF CLASS J CERTIFICATE
REGULATION S 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 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 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
<PAGE>
USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE
APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101), OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF
A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO
THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH
PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST
FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
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
<PAGE>
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 53.79456%, 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 JUNE 23, 1999 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 46.2054%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 12.6898%.
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.
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
OFFERING OF THE CERTIFICATES AND (B) JULY 1, 1999, 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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $0 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS J CERTIFICATES AS OF THE CLOSING PAYING AGENT: NORWEST BANK
DATE: $9,456,0000 MINNESOTA, NATIONAL ASSOCIATION
ISIN NO. US07383FBQ00
CERTIFICATE NO. SJ-1
CLASS J CERTIFICATE
REGULATION S 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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class J Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[FORM OF CLASS K CERTIFICATE
REGULATION S 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 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 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
<PAGE>
USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE
APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101), OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF
A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO
THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH
PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST
FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
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
<PAGE>
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 49.83488%, 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 JUNE 23, 1999 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 50.1651%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 13.4097%.
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.
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
OFFERING OF THE CERTIFICATES AND (B) JULY 1, 1999, 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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $0 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT-OFF DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS-FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS K CERTIFICATES AS OF THE CLOSING PAYING AGENT: NORWEST BANK
DATE: $10,807,000 MINNESOTA, NATIONAL ASSOCIATION
ISIN NO. US07383FBR82
CERTIFICATE NO. SK-1
CLASS K CERTIFICATE
REGULATION S 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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class K Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[FORM OF CLASS L CERTIFICATE
REGULATION S 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 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 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
<PAGE>
USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE
APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101), OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF
A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO
THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH
PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST
FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
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
<PAGE>
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 44.94893%, 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 JUNE 23, 1999 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 55.0511%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 14.5893%.
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.
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
OFFERING OF THE CERTIFICATES AND (B) JULY 1, 1999, 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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $0 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT OFF-DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS L CERTIFICATES AS OF THE CLOSING PAYING AGENT: NORWEST BANK
DATE: $4,053,000 MINNESOTA, NATIONAL ASSOCIATION
ISIN NO. US07383FBS65
CERTIFICATE NO. SL-1
CLASS L CERTIFICATE
REGULATION S 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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class L Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
BEAR STEARNS COMMERCIAL SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
[FORM OF CLASS M CERTIFICATE
REGULATION S 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 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 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
<PAGE>
USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE
APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101), OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF
A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO
THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH
PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST
FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF
THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
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
<PAGE>
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S. FEDERAL INCOME
TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THIS CERTIFICATE
IS ISSUED ON JULY 1, 1999. THE INITIAL PER ANNUM RATE OF INTEREST ON THIS
CERTIFICATE IS 6.0%. BASED ON ITS ISSUE PRICE OF 26.94485%, 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 JUNE 23, 1999 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 73.0552%; AND (II) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 22.8811%.
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.
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE
OFFERING OF THE CERTIFICATES AND (B) JULY 1, 1999, 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.
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WF2
INITIAL PASS-THROUGH RATE: 6.000% APPROXIMATE AGGREGATE PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $0 DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
THE CUT OFF-DATE: $1,080,711,380
DATE OF POOLING AND SERVICING AGREEMENT: SERVICER: WELLS-FARGO BANK, NATIONAL
AS OF JULY 1, 1999 ASSOCIATION
CUT-OFF DATE: JULY 1, 1999 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CLOSING DATE: JULY 1, 1999
TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: AUGUST 16, 1999
FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS M CERTIFICATES AS OF THE CLOSING PAYING AGENT: NORWEST BANK
DATE: $10,806,380 MINNESOTA, NATIONAL ASSOCIATION
ISIN NO. US07383FBT49
CERTIFICATE NO. SM-1
CLASS M CERTIFICATE
REGULATION S 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
<PAGE>
BEAR STEARNS 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 Stearns Commercial
Mortgage Securities Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Pooling and Servicing Agreement), the
Trustee, the Fiscal Agent, the Paying Agent, Servicer and the Special Servicer,
a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class M Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2 and are issued in 18 classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such
<PAGE>
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the amount to be distributed on the
Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in the
Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans
shall be allocated on the applicable Distribution Date to Certificateholders in
the manner set forth in the Pooling and Servicing Agreement. All Realized Losses
and interest shortfalls on the Mortgage Loans allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made by
wire transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions no later than the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and Servicing
Agreement at any time by the parties thereto with the consent of the Holders of
not less than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
<PAGE>
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 Trustee 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 Joseph P. Kennedy, the late Ambassador of the
United States to the Court of St. James, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
-----------------------------------
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, Authenticating Agent
By:
----------------------------------
AUTHORIZED SIGNATORY
<PAGE>
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 - 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 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.
<PAGE>
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.
<PAGE>
[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:
<PAGE>
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
July 1, 1999
Bear Stearns Commercial Mortgage Securities Inc.
1585 Broadway
New York, New York 10036
Wells Fargo Bank, National Association
555 Montgomery Street, 17th Floor
San Francisco, California 94111
GMAC Commercial Mortgage Corporation
550 California Street
San Francisco, CA 94104
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Bear Stearns Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-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
<PAGE>
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
<PAGE>
SCHEDULE OF EXCEPTIONS
B-1-3
<PAGE>
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
-------- ---, ----
Bear Stearns Commercial Mortgage Securities Inc.
1585 Broadway
New York, New York 10036
Wells Fargo Bank, National Association
555 Montgomery Street, 17th Floor
San Francisco, California 94111
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Bear Stearns Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-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), (iv) 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,
B-2-1
<PAGE>
title and interest in and to the Mortgage Loans, the REMIC I Regular Interests,
and the REMIC II Regular Interests.
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
<PAGE>
SCHEDULE OF EXCEPTIONS
B-2-3
<PAGE>
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle Bank National Association, as Trustee
Corporate Trust Office
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674
Attn: Asset-Backed Securities Trust Services Group
Re: Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-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
July 1, 1999 by and among Bear Stearns Commercial Mortgage Securities Inc., as
Depositor, Wells 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 Norwest Bank Minnesota,
National Association, 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.)
C-1
<PAGE>
- ----- 3. Mortgage Loan substituted.
(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:
C-2
<PAGE>
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-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 July 1, 1999 (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 July 1, 1999,
among Bear Stearns Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Wells 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 Norwest Bank
Minnesota, National Association, 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, as amended
D-1-1
<PAGE>
(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-1-2
<PAGE>
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-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 July 1, 1999 (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 July 1, 1999
(the "Pooling and Servicing Agreement"), among Bear Stearns Commercial Mortgage
Securities Inc., as depositor (the "Depositor"), Wells 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 Norwest Bank Minnesota, National Association, 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
D-2A-1
<PAGE>
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
<PAGE>
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
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
- ---- The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
D-2A-3
<PAGE>
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands
that the 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 only for the transferee's own account
Yes No
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-4
<PAGE>
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-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 July 1, 1999 (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 July 1, 1999 (the "Pooling and Servicing Agreement"),
among Bear Stearns Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Wells 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 Norwest Bank
Minnesota, National Association, 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
D-2B-1
<PAGE>
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 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 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 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
D-2B-2
<PAGE>
IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A
PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN
(INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY
REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH
INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii)
ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH
ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER
OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE
OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE
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.
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
D-2B-3
<PAGE>
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 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
<PAGE>
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-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 July 1, 1999 (the "Closing Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of July 1, 1999,
among Bear Stearns Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Wells 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 Norwest Bank
Minnesota, National Association, 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 acquiring the Transferred Certificate 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 Certificates 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 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,
D-3A-1
<PAGE>
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 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 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,
D-3A-2
<PAGE>
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST
FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE
CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE
OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE 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.
4. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any
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 pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) made any general solicitation by means of general advertising or in any
other manner, or (e) taken any other action, that (in the case of any of the
acts described in clauses (a) through (e) above) would constitute a distribution
of any Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the
D-3A-3
<PAGE>
Securities Act or any state securities law or would require registration or
qualification of any Certificate 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 Certificate.
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 (d) all related matters,
that it has requested.
6. The Transferee is an institutional "accredited investor" as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of an investment in the Certificates; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such an investment and can afford a complete loss of
such investment.
Very truly yours,
-------------------------------------------
(Transferee)
By:
----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
D-3A-4
<PAGE>
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-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 July 1, 1999 (the "Closing Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of July 1, 1999,
among Bear Stearns Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Wells 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 Norwest Bank
Minnesota, National Association, 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
D-3B-1
<PAGE>
qualified pursuant to any applicable state securities laws or (ii) such
interest sold or transferred in transactions which are exempt from 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 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
D-3B-2
<PAGE>
OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A
PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN
(INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY
REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH
INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60, OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii)
ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH
ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER
OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE
OR THE PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN
A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE
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.
<PAGE>
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-3B-4
<PAGE>
ANNEX 1 TO EXHIBIT D-3B
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 $______________________ 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
D-3B-5
<PAGE>
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.
--- 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-3B-6
<PAGE>
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
Yes No Certificate 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-3B-7
<PAGE>
ANNEX 2 TO EXHIBIT D-3B
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 $___________________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
---- The Transferee is part of a Family of Investment
Companies which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser
D-3B-8
<PAGE>
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
Yes No Certificate 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
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
IF AN ADVISER:
--------------------------------------
Print Name of Transferee
Date:
--------------------------------
D-3B-9
<PAGE>
EXHIBIT E-1A
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 Stearns Commercial
Mortgage Securities Inc., Mortgage Pass-Through Certificates, Series 1999-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
E-1A-1
<PAGE>
with respect to the income on such residual interest, unless no significant
purpose of the transfer is to enable the transferor to impede the assessment or
collection of tax.
4. The Transferee is aware of the tax imposed on a
"pass-through entity" holding the Residual 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. The Transferee will, in connection with any transfer that
it makes of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by
E-1A-2
<PAGE>
Treasury regulation Section 1.860E-1(c)(4)(i) and has satisfied the requirements
of such provision.
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 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-1A-3
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, pursuant to the authority of its Board of
Directors, by its ____________________ and its corporate seal to be hereunto
attached this day of ___________, ____.
[NAME OF TRANSFEREE]
By:
------------------------------------
[Name of Officer]
[Title of Officer]
E-1A-4
<PAGE>
- --------------------------------------------------------------------------------
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-1A-5
<PAGE>
EXHIBIT E-1B
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
-------- ---, -----
Norwest Bank Minnesota, National Association,
as Certificate Registrar
Sixth & Marquette
Minneapolis, MN 55479-0113
cc: LaSalle Bank National Association, as Trustee
Corporate Trust Office
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674
Re: Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-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 July 1, 1999 (the "Pooling and
Servicing Agreement"), among Bear Stearns Commercial Mortgage Securities Inc.,
as Depositor, Wells 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 Norwest Bank
Minnesota, National Association, 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-1B-1
<PAGE>
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-1B-2
<PAGE>
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF2, CLASS (THE "CERTIFICATES")
TO: [ ]
-----------------------
of New York, Brussels Office
Euroclear Operation Center
or
CEDEL, S.A.
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
<PAGE>
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
<PAGE>
EXHIBIT G
RESERVED
G-1
<PAGE>
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
[Date]
TO: The Depository Trust Company
CEDEL BANK, S. A. or
[ ]
-----------------------
of New York, Brussels Office
Euroclear Operation Center
Wells Fargo Bank, National Association, as Servicer
LaSalle Bank National Association, as Trustee
Norwest Bank Minnesota, National Association, as Certificate Registrar
Attn: Corporate Trust Services (CMBS)
This is to notify you as to the transfer of the beneficial
interest in $_______________ of Bear Stearns Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 1999-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] [CEDEL] [DTC] debit account
#__________, with respect to $__________ principal denomination of the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and (ii)
[DTC] [Euroclear] [CEDEL] 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
H-1
<PAGE>
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (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
Certificate(1) 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
<PAGE>
EXHIBIT I
FORM OF EUROCLEAR OR CEDEL CERTIFICATE
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-WF2, CLASS __ (THE "CERTIFICATES")
TO: Norwest Bank Minnesota, National Association, as Certificate Registrar
Attn: Corporate Trust Services (CMBS)
LaSalle Bank National Association, as Trustee
Attn: Asset-Backed Securities
Trust Services Group
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 July 1, 1999 (the "Pooling and Servicing
Agreement") among you both, GMAC Commercial Mortgage Corporation, ABN AMRO Bank
N.V. and Wells 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
<PAGE>
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
[CEDEL BANK, S.A.]
By:
--------------------------------------
I-2
<PAGE>
EXHIBIT J
RESERVED
J-1
<PAGE>
EXHIBIT K
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION
[Date]
[If to the Servicer:
Wells Fargo Bank, National Association
417 Montgomery Street, 5th Floor
San Francisco, California 94111
Attention: Portfolio Manager
with a copy to:
Robert F. Darling, Esq.
Wells Fargo Bank, National Association
633 Folsom Street
San Francisco, California 94104]
[If to the Special Servicer:
GMAC Commercial Mortgage Corporation
550 California Street
San Francisco, California 94104
Attention: Henry Bieber
with a copy to "General Counsel" at such address]
[If to the Trustee or Fiscal Agent:
LaSalle National Bank
135 South LaSalle Street
Chicago, Illinois 60674
Attention: Asset-Backed Securities Trust Services- Bear Stearns
Commercial Mortgage Securities Inc., Series 1999-WF2]
[If to the Paying Agent:
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attention: Corporate Trust Services (CMBS)-
Bear Stearns Commercial
Mortgage Securities Inc., Series 1999-WF2]
RE: BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-WF2
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of July 1, 1999 (the "Pooling and Servicing Agreement"),
among Bear Stearns Commercial
K-1
<PAGE>
Mortgage Securities Inc., as depositor (the "Depositor"), Wells Fargo Bank,
National Association, as servicer, GMAC Commercial Mortgage Corporation, as
special servicer, LaSalle National Bank, as trustee (the "Trustee"), ABN AMRO
Bank N.V., as fiscal agent, and Norwest Bank Minnesota, National Association, as
paying agent with respect to the Commercial Mortgage Pass-Though Certificates,
Series 1999-WF2 (the "Certificates"), the undersigned hereby certifies and
agrees as follows:
The Undersigned is a beneficial owner of the Class _________ Certificates.
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
<PAGE>
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:
K-3
<PAGE>
EXHIBIT L
FORM OF INSPECTION REPORT
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
WELLS FARGO
Commercial Mortgage Servicing
Annual Property Evaluation Report-Office/Retail/Ind. Report Date: Lender No:
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------
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 [ ] [ ] [ ] [ ] [ ]
General Maintenance [ ] [ ] [ ] [ ] [ ]
- -----------------------------------------------------------------------------------------------------------------------------------
Comments (explain deferred maintenance):
- -----------------------------------------------------------------------------------------------------------------------------------
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO
ASSURANCES ARE MADE BY WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
</TABLE>
Page 1 of 2
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Deferred
Interior Excellent Good Fair Poor N/A Maintenance
- --------
<S> <C> <C> <C> <C> <C> <C>
Entry/Hallways [ ] [ ] [ ] [ ] [ ] [ ]
Walls/Ceilings [ ] [ ] [ ] [ ] [ ] [ ]
Lighting [ ] [ ] [ ] [ ] [ ] [ ]
Carpet/Floor Covering [ ] [ ] [ ] [ ] [ ] [ ]
Stairs [ ] [ ] [ ] [ ] [ ] [ ]
Elevators [ ] [ ] [ ] [ ] [ ] [ ]
Kitchen/Bathrooms [ ] [ ] [ ] [ ] [ ] [ ]
HVAC/Mechanical [ ] [ ] [ ] [ ] [ ] [ ]
Functional Utility [ ] [ ] [ ] [ ] [ ] [ ]
Overall Physical Condition [ ] [ ] [ ] [ ] [ ] [ ]
- -----------------------------------------------------------------------------------------------------------------------------------
Comments:
- -----------------------------------------------------------------------------------------------------------------------------------
Market Strength Strong Stable Weak
- --------------- [ ] [ ] [ ]
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
[ ] [ ] [ ] [ ]
- -----------------------------------------------------------------------------------------------------------------------------------
Regional Analysis:
- -----------------------------------------------------------------------------------------------------------------------------------
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO
ASSURANCES ARE MADE BY WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
</TABLE>
Page 2 of 2
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
WELLS FARGO
Commercial Mortgage Servicing
Annual Property Evaluation Report-Multifamily Report Date: Lender No:
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------
WFRF File No:
- ------------------------------------------------------------
Borrower:
- ------------------------------------------------------------
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
- --------
Landscaping [ ] [ ] [ ] [ ]
Paved Areas [ ] [ ] [ ] [ ]
Sidewalks [ ] [ ] [ ] [ ]
Exterior Finish [ ] [ ] [ ] [ ]
Roof [ ] [ ] [ ] [ ]
General Maintenance [ ] [ ] [ ] [ ]
- -----------------------------------------------------------------------------------------------------------------------------------
Comments (explain deferred maintenance):
- -----------------------------------------------------------------------------------------------------------------------------------
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO
ASSURANCES ARE MADE BY WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
</TABLE>
Page 1 of 2
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Deferred
Interior Excellent Good Fair Poor N/A Maintenance
- --------
<S> <C> <C> <C> <C> <C> <C>
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
[ ] [ ] [ ] [ ]
- -----------------------------------------------------------------------------------------------------------------------------------
Regional Analysis:
- -----------------------------------------------------------------------------------------------------------------------------------
INFORMATION CONTAINED HEREIN HAS BEEN OBTAINED FROM BORROWERS, PROPERTY MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO
ASSURANCES ARE MADE BY WELLS FARGO AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
</TABLE>
Page 2 of 2
<PAGE>
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
M-1
EXHIBITS TO POOLING AND SERVICING AGREEMENT
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
DISTRIBUTION DATE STATEMENT
Table of Contents
------------------------------------------------------------------
STATEMENT SECTIONS PAGE (S)
------------------ --------
<S> <C>
Certificate Disbtribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Ratings Detail 6
Current Mortgage Loan and Property Stratification Tables 7-9
Mortgage Loan Detail 10
Principal Prepayment Detail 11
Historical Detail 12
Delinquency Loan Detail 13
Specialty Serviced Loan Detail 14-15
Modified Loan Detail 16
Liquidated Loan Detail 17
-------------------------------------------------------------------
Underwriter Servicer Special Servicer
- ----------------------------------- ---------------------------------------- ------------------------------------
Bear, Stearns & Co. Inc. Wells Fargo Bank, National Association GMAC Commercial Mortgage Corporation
245 Park Avenue 555 Montgomery Street, 17th Floor 850 Dresher Road
New York, New York 10167 San Francisco, CA 94111 Horsham, PA 10944-8015
Contact: General Information Number Contact: Matilda Sanchez Contact: Coral I. Horsimeyer
Phone Number: (212)272-2000 Phone Number: (415) 222-2364 Phone Number: (215) 328-1790
- ----------------------------------- ---------------------------------------- ------------------------------------
This report has been complied from information provided to Norwest by various third parties, which may include the Master
Servicer, Special Servicer and others. Norwest has not independently confirmed the accuracy of information received from these
third parties and assumes no duty to do so. Norwest expressly disclaims any responsibility for the accuracy or completeness of
Information furnished by third parties.
- ----------------------------------------------------------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
Certificate Distribution Detail
- ----------------------------------------------------------------------------------------------------------------------------------
Realized Loss/
Pass-Through Original Beginning Principal Interest Prepayment Additional Trust Total
Class CUSIP Rate Balance Balance Distribution Distribution Penalities Fund Expenses Distribution
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
Totals
- ----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -------------------------------
Current
Ending Subordination
Balance Level(1)
- -------------------------------
<S> <C>
- -------------------------------
Totals
- -------------------------------
</TABLE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Penalities Distribution Amount
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
(1) Calculated by taking (A) the sum of the ending certificate balance of all
classes less (B) the sum of (i) the ending certificate balance of the
designated class and (ii) the ending certificate balance of all classes which
are not subordinate to the designated class and dividing the result by (A).
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
Certificate Factor Detail
- ----------------------------------------------------------------------------------------------------------------------------------
Realized Loss/
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Penalties Fund Expenses Balance
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Penalties Amount
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
Reconciliation Detail
Advance Summary Servicing Fee Breakdowns
P & I Advances Outstanding Current Period Accrued Servicing Fees
Servicing Advances Outstanding Less Delinquent Servicing Fees
Less Reductions to Servicing Fees
Reimbursement for Interest on Advances Plus Servicing Fees for Delinquent Payments Received
paid from general collections Plus Adjustments for Prior Servicing Calculation
Total Servicing Fees Collected
Certificate Interest Reconciliation
- -----------------------------------------------------------------------------------------------------------------------------------
Accrued Net Aggregate Distributable Distributable Additional Remaining Unpaid
Certificate Prepayment Certificate Certificate Interest Trust Fund Interest Distributable
Class Interest Interest Shortfall Interest Adjustment Expenses Distribution Certificate Interest
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Total
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
Other Required Information
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Available Distribution Amount Expense Losses (Additional Trust Fund Expenses)
(i) Special Servicing and Liquidation Fees
(ii) Advance Interest
Principal Distribution Amount (iii) Indemnification Expenses
(a) Principal portion of Scheduled Payments (iv) Taxes Imposed on the Trust
and any Assumed Scheduled Payments
(v) Amount of any Advance not Recovered
(b) Principal Prepayments upon a Final Recovery Determination
(c) Principal Portion of Baloon Payments
(d) Liquidation, Condensation, Purchase, Appraisal Reduction Amount
and Insurance Proceeds and REO Income --------------------------------------------------------------
Received on a Mortgage Loan Appraisal Date Appraisal
Loan Reduction Reduction
Number Amount Effected
--------------------------------------------------------------
Aggregate Number of Outstanding Mortgage Loans None
Aggregate Unpaid Principal Balance of the Mortgage Loans
Aggregate Scheduled Principal Balance of the Mortgage Loans
Total Servicing and Special Servicing Fee paid
Servicing Fee paid
Special Servicing Fee paid --------------------------------------------------------------
Total
--------------------------------------------------------------
Trustee Fee paid
- -----------------------------------------------------------------------------------------------------------------------------------
Copyright 1997, Norwest Bank Minnesota, N.A.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
Ratings Detail
- ----------------------------------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
Class CUSIP -----------------------------------------------------------------------------------------------------
DCR Fitch Moody's S&P DCR Fitch Moody's S&P
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
NR - Designates that the class was not rated by the above agency at the time of original issuance.
X - Designates that the above rating agency did not rate any classes in this transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular rating agency, no request has been made subsequent to
issuance to obtain rating information, if any, from such rating agency. The current ratings were obtained directly from the
applicable rating agency within 30 days of the payment date listed above. The ratings may have changed since they were obtained.
Because the ratings may have changed, you may want to obtain current ratings directly from the rating agencies.
Duff & Phelps Credit Rating Co. Fitch IBCA, Inc. Moody's Investors Service Standard & Poor's Rating Services
55 East Monroe Street One State Street Plaza 99 Church Street 26 Broadway
Chicago, Illinois 80603 New York, New York 10004 New York, New York 10007 New York, New York 10004
(312) 368-3100 (212) 908-0500 (212) 653-0300 (212)208-8000
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
Ratings Detail
- ----------------------------------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
Class CUSIP -----------------------------------------------------------------------------------------------------
DCR Fitch Moody's S&P DCR Fitch Moody's S&P
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
NR - Designates that the class was not rated by the above agency at the time
of original issuance.
X - Designates that the above rating agency did not rate any classes in this
transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular
rating agency, no request has been made subsequent to issuance to obtain rating
information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date
listed above. The ratings may have changed since they were obtained. Because the
ratings may have changed, you may want to obtain current ratings directly from
the rating agencies.
Duff & Phelps Credit Rating Co. Fitch IBCA, Inc. Moody's Investors Service Standard & Poor's Rating Services
55 East Monroe Street One State Street Plaza 99 Church Street 26 Broadway
Chicago, Illinois 80603 New York, New York 10004 New York, New York 10007 New York, New York 10004
(312) 368-3100 (212) 908-0500 (212) 653-0300 (212)208-8000
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Scheduled Balance
- --------------------------------------------------------------------------------
Scheduled # of Scheduled % of WAM Weighted
Balance Loans Balance Agg. (2) WAC Avg DSCR(1)
Bal
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
<CAPTION>
STATE (3)
- --------------------------------------------------------------------------------
# of Scheduled % of WAM Weighted
State Props. Balance Agg. (2) WAC Avg DSCR(1)
Bal
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
See footnotes on last page of this section
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Debt Service Coverage Ratio
- --------------------------------------------------------------------------------
% of
Debt Service # of Scheduled Agg. WAM Weighted
Coverage Ratio Loans Balance Bal. (2) WAC Avg. DSCR (1)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
Property Type (3)
- --------------------------------------------------------------------------------
%of
Property # of Scheduled Agg WAM Weighted
Type Props. Balance Bal (2) WA Avg DSCR (1)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
Note Rate
- --------------------------------------------------------------------------------
% of
Note # of Scheduled Agg WAM Weighted
Rate Loans Balance Bal (2) WAC Avg DSCR (1)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
Seasoning
- --------------------------------------------------------------------------------
% of
# of Scheduled Agg WAM Weighted
Seasoning Loans Balance Bal (2) WAC Avg DSCR (1)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
See footnotes on last past of this Section.
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Anticipated Remaining Term (ARD and Balloon Loans)
- --------------------------------------------------------------------------------
Anticipated % of
Remaining # of Scheduled Agg WAM Weighted
Term (2) Loans Balance Bal (2) WAC Avg DSCR (1)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
Remaining Stated Term (Fully Amortizing Loans)
- -------------------------------------------------------------------------------
Remaining % of
Stated # of Scheduled Agg WAM Weighted
Term Loans Balance Bal (2) WAC Avg DSCR (1)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans)
- --------------------------------------------------------------------------------
Remaining % of
Amortization # of Scheduled Agg WAM Weighted
Term Loans Balance Bal (2) WAC Avg DSCR (1)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
Age of Most Recent NOI
- --------------------------------------------------------------------------------
% of
Age of Most # of Scheduled Agg WAM Weighted
Recent NOI Loans Balance Bal (2) WAC Avg DSCR (1)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------
(1) Debt Service Coverage Ratios are undated periodically as new NOI figures
become available from borrowers on an asset level. In all cases the most
current DSCR provided by the Servicer is used. To the extent that no DSCR is
provided by the Servicer, information from the offering document is used. The
Trustee makes no representations as to the accuracy of the data provided by the
borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term
from the current month to the earlier of the Anticipated Repayment Date, if
applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date Balance of the related
mortgage loan as disclosed in the offering document.
Note: (i) "Scheduled Balance" has the meaning assigned thereto in the CSSA
Standard Information Package.
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
Mortgage Loan Detail
- -------------------------------------------------------------------------------------------
Anticipated
Loan Property Interest Principal Gross Repayment
Number DSCR Type (1) City State Payment Payment Coupon Date
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------
Totals
- -------------------------------------------------------------------------------------------
Neg Beginning Ending Paid Appraisal Appraisal Res. Mod.
Maturity Amort. Scheduled Scheduled Thru Reduction Reduction Strat. Code
Date (Y/N) Balance Balance Date Date Amount (2) (3)
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------
Totals
- -------------------------------------------------------------------------------------------
(1) Property Type Code (2) Resolution Strategy Code (3) Modfication Code
- ----------------------- ---------------------------- -------------------
<S> <C> <C>
MF - Multi-Family 1 - Modification 1 - Maturity Date Extension
RT - Retail 2 - Foreclosure 2 - Amortization Change
HC - Health Care 3 - Bankruptcy 3 - Principal Write-Off
IN - Industrial 4 - Extension 4 - Combination
WH - Warehouse 5 - Note Sale
MH - Moblie Home Park 6 - DPO
OF - Office 7 - REO
MU - Mixed Use 8 - Resolved
LO - Lodging 9 - Pending Return
SS - Self Storage to Master Servicer
OT - Other 10 - Deed In Lieu Of
Foreclosure
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Detail
- ----------------------------------------------------------------------------------------------------------------------
Principal Prepayment Amount Prepayment Penalties
Offering Document --------------------------------- ------------------------------------------------
Loan Number Cross-Reference Payoff Amount Curtailment Amount Prepayment Premium Yield Maintenance Premium
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
Totals
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ----------------------------------------------------------------------------------------------------------------------------------
Historical Detail
- ----------------------------------------------------------------------------------------------------------------------------------
Delinquencies
- ----------------------------------------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-69 Days 90 Days or More Foreclosure REO Modifications
Date # Balance # Balance # Balance # Balance # Balance # Balance
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------
Prepayments Rate and Maturities
- ------------------------------- -------------------------------------------
Curtailments Payoff Net Weighted Avg
# Amount # Amount Coupon Remit WAM
- ---------------------------------------------------------------------------------
<S> <C> <C> <C>
- ---------------------------------------------------------------------------------
Note. Foreclosure and REO Totals are excluded from the delinquencies aging categories.
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ------------------------------------------------------------------------------------------------------------------------------------
Delinquency Loan Detail
- ----------------------------------------------------------------------------------------------
Offering % of Current Outstanding Status of
Document Months Paid Through P&I P&I Mortgage
Loan Number Cross-Reference Delinq Date Advances Advances** loan (1
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------
Totals
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
Resolution Current Outstanding
Strategy Servicing Foreclosure Servicing Servicing REO
Code (2) Transfer Date Date Advances Advances Bankruptcy Date Date
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------
Totals
- -------------------------------------------------------------------------------------------
(1) Status of Mortgage Loan (2) Resolution Strategy Code
- ----------------------------------- ----------------------------
A - Payment Not Received 1 - Modification
But Still in Grace Period 2 - Foreclosure
B - Late Payment But Less 3 - Bankruptcy
Than 1 Month Delinquent 4 - Extension
0 - Current 5 - Note Sale
1 - One Month Delinquent 6 - DPO
2 - Two Months Delinquent 7 - REO
3 - Three or More Months Delinquent 8 - Resolved
4 - Assumed Scheduled Payment 9 - Pending Return
(Performing Matured Balloon) to Master Servicer
7 - Foreclosure 10 - Deed In Lieu Of
9 - REO Foreclosure
** Outstanding P & I Advances include the current period advance
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ------------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 1
- -------------------------------------------------------------------------------------
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property
Date Number Cross-Reference Date Code (1) Balance Type (2)
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
Net Remaining
Interest Actual Operating NOI Note Maturity Amortization
State Rate Balance Income Date DSCR Date Date Term
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------
(1) Resolution Strategy Code (2) Property Type Code
---------------------------- -----------------------
<S> <C>
1 - Modification MF - Multi-Family
2 - Foreclosure RT - Retail
3 - Bankruptcy HC - Health Care
4 - Extension IN - Industrial
5 - Note Sale WH - Warehouse
6 - DPO MH - Mobile Home Park
7 - REO OF - Office
8 - Resolved MU - Mixed Use
9 - Pending Return LO - Lodging
to Master Servicer SS - Self Storage
10 - Deed In lieu Of OT - Other
Foreclosure
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ------------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 2
- ------------------------------------------------------------------------------------------------------------------------------------
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Date Date Value Property Revenue Comment
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Resolution Strategy Code
- ----------------------------
1 - Modification
2 - Foreclosure
3 - Bankruptcy
4 - Extension
5 - Note Sale
6 - DPO
7 - REO
8 - Resolved
9 - Pending Return
to Master Servicer
10 - Deed In lieu Of
Foreclosure
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ------------------------------------------------------------------------------------------------------------------------------------
Modified Loan Detail
- --------------------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification
Number Cross-Reference Balance Modification Date Modification Description
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------
Totals
- --------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Copyright 1997, Norwest Bank Minnesota, N.A.
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------
For Additional Information, please contact
Leslie Gaskill
(212) 515-5254
Reports Available on the World Wide Web
[NORWEST BANKS LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC. @ www.ctslink.com/cmbs
Norwest Bank Minnesota, N.A. Commercial Mortgage Pass-Through Certificates ------------------------------------------
Corporate Trust Services Series 1999-WF2
3 New York Plaza, 15th Floor Payment Date: 07/15/1999
New York, NY 10004 Record Date: 08/29/1999
- ------------------------------------------------------------------------------------------------------------------------------------
Liquidated Loan Detail
- ---------------------------------------------------------------------------------------
Final Recovery Offering
Loan Determination Document Appraisal Appraisal Actual Gross
Number Date Cross-Reference Date Value Balance Proceeds
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------
Current Total
- ---------------------------------------------------------------------------------------
Cumulative Total
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
Gross Proceeds Aggregate Net Net Proceeds Repurchased
as a % of Liquidation Liquidation as a % of Realized by Seller
Actual Balance Expenses* Proceeds Actual Balance loss (Y/N)
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------
Current Total
- ---------------------------------------------------------------------------------------
Cumulative Total
- ---------------------------------------------------------------------------------------
* Aggregate liquidation expenses also include outstanding P & I advances and
unpaid fees (servicing, trustee, etc.).
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT N
FORM OF ANNUAL REPORT
N-1
EXHIBITS TO POOLING AND SERVICING AGREEMENT
<PAGE>
WELLS FARGO OPERATING STATEMENT REVIEW [WELLS FARGO LOGO]
LOAN # [ ]
INVESTOR # [BSCMS 1999 WF2 ]
PROPERTY TYPE [ ] [ ] COMPLETED
CITY/STATE [ ] [ ] REVIEWED
# OF MONTHS [ 12 ] [ 12 ] [ 12 ] [ 12 ]
ANNUALIZED (Y/N) [ No ] [ No ] [ No ] [ ]
12/31/XX 12/31/XY 12/31/XZ AT ISSUE
-------- -------- -------- --------
GROSS RENTS [ ] [ ] [ ] [ ]
REIMBURSEMENTS [ ] [ ] [ ] [ ]
TOTAL INCOME [ 0] [ 0] [ ] [ ]
VACANCY [ ] [ ] [ ] [ ]
DISCOUNTS/CONCESSIONS [ ] [ ] [ ] [ ]
OTHER INCOME [ ] [ ] [ ] [ ]
EFFECTIVE GROSS INCOME [ 0] [ 0] [ 0] [ 0]
PROPERTY TAXES [ ] [ ] [ ] [ ]
INSURANCE [ ] [ ] [ ] [ ]
UTILITIES [ ] [ ] [ ] [ ]
MANAGEMENT [ ] [ ] [ ] [ ]
MAINT & REPAIRS [ ] [ ] [ ] [ ]
SALARIES & ADMIN [ ] [ ] [ ] [ ]
ADVERTISING [ ] [ ] [ ] [ ]
GROUND LEASE [ ] [ ] [ ] [ ]
OTHER TOTAL OPER EXPENSES [ 0] [ 0] [ 0] [ 0]
NOI [ 0] [ 0] [ 0] [ 0]
CAPITAL RESERVES [ ] [ ] [ ] [ ]
TI/LC RESERVES [ ] [ ] [ ] [ ]
OTHER [ ] [ ] [ ] [ ]
NOI [ 0] [ 0] [ 0] [ 0]
DEBT SERVICE [ ] [ ] [ ] [ ]
DSCR [ ] [ ] [ ] [ ]
OCCUPANCY [ ] [ ] [ ] [ ]
AS OF [ ] [ ] [ ] [ ]
COMMENTS
- --------------------------------------------------------------------------------
INFORMATION CONTAINED HEREIN HAS BEEN FURNISHED BY BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO BANK AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
[WELLS FARGO LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES, INC. Determination Date:
Commercial Mortgage Pass-Through Certificates Due Date:
Series 1999 - WF2
Annual Report Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Loan Identification Loan Information
- ------------------------------- --------------------------------------------------------------------------------------------
Paid Current Sched. Rem Rem Fix or Current
Tab Loan Prop to Scheduled At Issue Orig. Monthly Amort. Term to Maturity Var. Coupon Year
Ref No. Type City State Date Balance Balance Date Pmt. Term Maturity Date Rate Rate Built
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1
2
3
4
5
- ------------------------------------------------------------------------------------------------------------------------------------
6
7
8
9
10
- ------------------------------------------------------------------------------------------------------------------------------------
11
12
13
14
15
- ------------------------------------------------------------------------------------------------------------------------------------
16
17
18
19
20
- ------------------------------------------------------------------------------------------------------------------------------------
21
22
23
24
25
- ------------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Appraisal Information
- -------------------------------------------------------------------------------
Latest
NRSF Latest Appr. AT
or # of Appr Value Current Issue
Units Data ($000) LTV LTV
- --------------------------------------------------------------------------------
1
2
3
4
5
- --------------------------------------------------------------------------------
6
7
8
9
10
- --------------------------------------------------------------------------------
11
12
13
14
15
- --------------------------------------------------------------------------------
16
17
18
19
20
- --------------------------------------------------------------------------------
21
22
23
24
25
- --------------------------------------------------------------------------------
Totals [0] [0]
- -------------------------------------------------------------------------------
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN FURNISHED BY BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO BANK AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
[WELLS FARGO LOGO] BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES, INC. Determination Date:
Commercial Mortgage Pass-Through Certificates Due Date:
Series 1000 - WF2
Annual Report Summary
- ------------------------------------------------------------------------------------------------------------------------------------
Loan Identification Prop Inspection Property Financials
- -------------------- ------------------ ------------------------------------------------------------------------------------------
Data of Latest At Issue EGI % Latest At Issue NOI%
Last Latest Annual Annual Chg Annual Annual Chg
Tab Loan Inspect Overall Op. EGI EGI from NOI NOI from
Ref. No. Data Condition Stml ($000) ($000) Issue ($000) ($000) Issue
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 0.0 0.0 0.0 0.0 0. 0 0.0
2
3
4
5
- ------------------------------------------------------------------------------------------------------------------------------------
6
7
8
9
10
- ------------------------------------------------------------------------------------------------------------------------------------
11
12
13
14
15
- ------------------------------------------------------------------------------------------------------------------------------------
16
17
18
19
20
- ------------------------------------------------------------------------------------------------------------------------------------
21
22
23
24
25
- ------------------------------------------------------------------------------------------------------------------------------------
0.0 0.0 0.0 0.0 0. 0 0.0
Totals Totals
- --------------------------------------------------------------------------------
Occupancy and Debt Coverage
- --------------------------------------------------------------------------------
DSCR%
Latest At Chg.
Occupancy Latest Issue Latest At Issue from
Date Occ. Occ. DSCR DSCR Issue
- --------------------------------------------------------------------------------
1
2
3
4
5
- --------------------------------------------------------------------------------
6
7
8
9
10
- --------------------------------------------------------------------------------
11
12
13
14
15
- --------------------------------------------------------------------------------
16
17
18
19
20
- --------------------------------------------------------------------------------
21
22
23
24
25
- --------------------------------------------------------------------------------
0.0 0.0 0.0
Weighted Average
- --------------------------------------------------------------------------------
</TABLE>
INFORMATION CONTAINED HEREIN HAS BEEN FURNISHED BY BORROWERS, PROPERTY
MANAGERS, OR OTHER OUTSIDE PARTIES, AND THEREFORE NO ASSURANCES ARE MADE BY
WELLS FARGO BANK AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT O
FORM OF SPECIAL SERVICER MONTHLY REPORT
O-1
EXHIBITS TO POOLING AND SERVICING AGREEMENT
<PAGE>
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES
HISTORICAL LOSS ESTIMATE REPORT (REO-SOLD OR DISCOUNTED PAYOFF)
AS OF
---------------------
[TABLE TO COME]
<PAGE>
DELINQUENT AND SPECIALLY SERVICED ASSET REPORT
[TABLE TO COME]
STATEMENT DATE:
PAYMENT DATE:
PRIOR PAYMENT:
RECORD DATE:
[TABLE TO COME]
<PAGE>
DETERMINATION DATE:
DUE DATE:
LOAN GROUP:
DELINQUENT AND
SPECIALLY SERVICED ASSET REPORT
[TABLE TO COME]
<PAGE>
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
DELINQUENT LOAN STATUS REPORT
AS OF
---------------------
[TABLE TO COME]
<PAGE>
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
DELINQUENT LOAN STATUS REPORT
AS OF
---------------------
[TABLE TO COME]
<PAGE>
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH, SERIES
REO STATUS REPORT
AS OF
---------------------
[TABLE TO COME]
<PAGE>
CSSA
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
HISTORICAL LOAN MODIFICATION REPORT
AS OF
---------------------
[TABLE TO COME]
<PAGE>
EXHIBIT P
RESERVED
P-1
<PAGE>
EXHIBIT Q
FORM OF PAYING AGENT REPORT
[TO COME FROM PAYING AGENT]
Q-1
<PAGE>
EXHIBIT R
RESERVED
R-1
<PAGE>
EXHIBIT S-1
FORM OF POWER OF ATTORNEY FOR SERVICER
RECORDING REQUESTED BY:
WELLS FARGO BANK, NATIONAL ASSOCIATION
AND WHEN RECORDED MAIL TO:
Wells Fargo Bank, National Association
555 Montgomery Street, 17th Floor
San Francisco, CA 94111
Attention: Bear Stearns Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certififcates,
Series 1999-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 Stearns Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1999-WF2 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of July 1, 1999 (the
"Pooling and Servicing Agreement"), does hereby nominate, constitute and appoint
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Servicer under the Pooling and
Servicing Agreement ("Wells 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 Wells Fargo Bank to service and administer the Mortgage
Loans (as defined in the Pooling and Servicing Agreement) in connection with the
performance by Wells Fargo Bank of its duties as Servicer under the Pooling and
Servicing Agreement, giving and granting unto Wells 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 Wells 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) hire or procure
counsel to represent the Trustee or (ii) prepare, execute or deliver any
governmental filings, forms, permits, registrations or other documents which
have the effect of causing the Trustee to be registered to do business in any
state.
S-1-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this limited
power of attorney to be executed as of this 1st day of July, 1999.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Bear Stearns Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-
Through Certificates, Series 1999-WF2
By:
-------------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
S-1-2
<PAGE>
- --------------------------------------------------------------------------------
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)
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT S-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
GMAC COMMERCIAL MORTGAGE CORPORATION
AND WHEN RECORDED MAIL TO:
GMAC COMMERCIAL MORTGAGE CORPORATION
550 California Street
San Francisco, CA 94104
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 Stearns Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1999-WF2 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of July 1, 1999 (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) hire or
procure counsel to represent the Trustee or (ii) prepare, execute or deliver any
governmental filings, forms, permits, registrations or other documents which
have the effect of causing the Trustee to be registered to do business in any
state.
S-2-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this limited
power of attorney to be executed as of this 1st day of July, 1999.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Bear Stearns Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-
Through Certificates, Series 1999-WF2
By:
------------------------------------------
Name:
Title:
S-2-2
<PAGE>
- --------------------------------------------------------------------------------
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)
- --------------------------------------------------------------------------------
<PAGE>
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. "Underwritable 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.
T-1
<PAGE>
SCHEDULE I
BEAR STEARNS LOAN SCHEDULE
S-I-1
EXHIBITS TO POOLING AND SERVICING AGREEMENT
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
LOAN
NUMBER LOAN NAME ADDRESS CITY STATE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
5502 205 Place Shopping Center 9710-9740 S.E. Washington Street Portland OR
5504 Talbert Center 12230-12400 Southeast Sunnyside Road Clackamas OR
8643 2607 Rhawn St. & 8040 Roosevelt Blvd. 2607 Rhawn St. & 8040 Roosevelt Blvd. Philadelphia PA
9122 Torrey Reserve North Court 11622-11682 El Camino Real San Diego CA
9419 Southland Plaza 3200 West Park Avenue Houma LA
9675 211 63rd Street 211 63rd Street Brooklyn NY
11101 310 West C Street 300-310 West C Street San Diego CA
11134 Hilltop Medical Center 2970 Hilltop Mall Road Richmond CA
11505 Waverly Elementary School 1150 East New York Ave. Brooklyn NY
12052 Crondall Corner 3710 Crondall Lane Owings Mill MD
12099 Forest Plaza 195 Forest Ave, 645 & 695 High Street Palo Alto CA
12101 Keyser Oaks Center Keyser Avenue & Oak Avenue Scranton PA
12130 38 East 30th Street 38 East 30th Street New York NY
16398 Gary's Plaza Shopping Center 553 South Broad Street Lansdale PA
16416 Woodlane Square Shopping Center 798 Woodlane Road Burlington County NJ
16465 3720 Arroyo Sorrento Road 3720 Arroyo Sorrento Road San Diego CA
16953 Glencoe Building 4061-4063 Glencoe Avenue Marina Del Rey CA
16958 Redwood Studios 4077-81 Redwood Drive Marina Del Rey CA
17154 521-527 & 529-535 West 20th Street 521-527 & 529-535 West 20th Street New York NY
17553 Gaithersburg Storehouse 1 Metropolitan Grove Road Gaithersburg MD
17583 State Tower Building 201-19 East Genesee Street Syracuse NY
17660 Plymouth Square Shopping Center Ridge Pike/Butler Pike Plymouth Meeting PA
17718 Homewood Suites 2250 Center Street Chattanooga TN
17875 St. Jude's Health Complex 433 & 459 W. Bastanchury Rd. Fullerton CA
17877 Ruxton Tower 50 West 72nd Street New York NY
17923 All American Mini Storage 711 South Mills Avenue Claremont CA
17927 Barnegat Mini-Storage 85 South Main Street Barnegat NJ
17961 Hidden Valley Apartments 531-561 Westview Drive Hastings MN
17962 Willow Park Apartments 6200-6651 67th Avenue North Brooklyn Park MN
18041 225 Broadway 225 Broadway New York NY
18066 Vagabond Inn Hayward 20455 Hesperian Boulevard Hayward CA
18113 Best Western - Lake Norman 19608 Liverpool Parkway Cornelius NC
18137 Glenn Dale Business Center 7100 Holladay Tyler Road Glenn Dale MD
18173 Miracle Mile Mobile Home Park 3642 Boulder Highway Las Vegas NV
18332 Albertson's Marketplace 6411-6511 E. Spring Street, 3022-3028 Palo Verde Ave. Long Beach CA
18346 Piney Orchard Market Place 8671-8779 Piney Orchard Parkway Odenton MD
25024 417-423 West Broadway 417-423 West Broadway Boston MA
25069 Lochwood Portfolio 5880 Ridgewood Road Jackson MS
25078 Sunrise Shopping Center 100-265 Sunrise Center Road Zanesville OH
25117 Village Walk Shopping Center 770 Boston Post Road Guilford CT
25118 Quebec House Apartments 2800-2801 Quebec Street, N.W. Washington DC
25144 Pecan Park Place 1241 FM 359 Richmond TX
25165 Trumbull Medical Arts Center 15 Corporate Drive Trumbull CT
25195 598 Broadway 598 Broadway New York NY
25271 Crystal Tree Apartments 1050 E. Henderson Ave Fresno CA
25312 Parkland Green Apartments 15000, 15100 West Cleveland Ave New Berlin WI
25352 Shakespeare & Sherwood Apartments 490-500 Sherwood Place Stratford CT
25387 Vagabond Portfolio
25423 Holiday Inn Express 2080 West North Temple Salt Lake City UT
25445 Southgate Mini Storage 1025 Golden Gate Drive Napa CA
25451 Diho Plaza 9250 Bellaire Boulevard Houston TX
25479 7 East 47th Street 7 East 47th Street New York NY
25485 Regent Square Apartments 1 North Randall Avenue Madison WI
25489 Inland Portfolio
25508 Eckerd's 25 Seminary Street Auburn NY
25557 Sun Suites
25559 Harborwood West Apartments 6100 Soudview Drive Gig Harbor WA
25577 270 St. Paul Building 270 St. Paul Denver CO
25589 The Craft House Apartments 51-55 N. Third Street Philadelphia PA
25609 The Growth Companies Portfolio
25675 Snowden's Ridge Apartments 2105-A Harlequin Terrace Silver Spring MD
25714 Interpointe Shopping Center 2100 South & 300 West Salt Lake City UT
25742 Northfield Estates 710-740 North State Highway 3 Northfield MN
25764 Brinkley House Apartments 3051 Brinkley Rd Temple Hills MD
25959 Mayfair House Apartments 2930 Cherry Street Falls Church VA
26031 San Jacinto Court Shopping Center 5003 Garth Road Baytown TX
26032 Ashford Court Shopping Center 12701 Westheimer Road Houston TX
26174 Parkvale Medical Office 4616 N. 51st Avenue Phoenix AZ
<PAGE>
<CAPTION>
STATED
ORIGINAL
TERM TO
LOAN GROSS MORTGAGE ADMINISTRATIVE NET MORTGAGE MATURITY
NUMBER ZIP CODE RATE COST RATE RATE ORIGINAL BALANCE CUT-OFF BALANCE (MOS.)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
5502 97216 7.4600% 0.053% 7.4070% $7,850,000.00 $7,839,854.99 120
5504 97015 7.4600% 0.053% 7.4070% 4,950,000.00 4,943,602.83 120
8643 19152 9.0000% 0.053% 8.9470% 3,000,000.00 2,997,324.11 120
9122 92130 7.5550% 0.053% 7.5020% 18,300,000.00 18,286,567.59 120
9419 70364 7.3850% 0.053% 7.3320% 2,850,000.00 2,811,961.60 120
9675 11220 8.6550% 0.053% 8.6020% 2,725,000.00 2,720,493.82 120
11101 92101 8.0500% 0.053% 7.9970% 900,000.00 892,961.41 180
11134 94806 8.0400% 0.053% 7.9870% 4,100,000.00 4,092,679.96 120
11505 11212 8.0600% 0.053% 8.0070% 2,500,000.00 2,471,050.70 120
12052 21117 7.7300% 0.053% 7.6770% 3,750,000.00 3,745,478.48 120
12099 94301 8.2250% 0.053% 8.1720% 2,925,000.00 2,923,125.28 120
12101 18504 8.0850% 0.053% 8.0320% 3,200,000.00 3,190,821.90 180
12130 10016 6.7100% 0.053% 6.6570% 6,400,000.00 6,352,555.92 120
16398 19446 8.1550% 0.053% 8.1020% 3,140,000.00 3,136,619.30 120
16416 80606 8.7050% 0.053% 8.6520% 3,450,000.00 3,444,785.64 120
16465 92130 7.5550% 0.053% 7.5020% 950,000.00 949,302.69 120
16953 90292 7.4000% 0.053% 7.3470% 1,700,000.00 1,695,510.77 120
16958 90292 7.4950% 0.053% 7.4420% 2,500,000.00 2,493,554.59 120
17154 10011 7.1600% 0.053% 7.1070% 6,500,000.00 6,490,945.63 120
17553 20878 7.4000% 0.053% 7.3470% 2,350,000.00 2,336,206.16 120
17583 13202 8.9900% 0.053% 8.9370% 4,950,000.00 4,947,290.54 120
17660 19428 7.4500% 0.053% 7.3970% 15,300,000.00 15,280,176.76 120
17718 37421 8.7300% 0.053% 8.6770% 4,250,000.00 4,236,423.75 120
17875 92835 7.4500% 0.053% 7.3970% 4,875,000.00 4,855,796.63 120
17877 10023 6.8250% 0.053% 6.7720% 7,650,000.00 7,650,000.00 120
17923 91711 8.1700% 0.053% 8.1170% 1,675,000.00 1,671,944.74 120
17927 08005 8.2650% 0.053% 8.2120% 1,400,000.00 1,396,064.59 120
17961 55033 7.2500% 0.053% 7.1970% 1,500,000.00 1,498,829.86 120
17962 55429 7.2500% 0.053% 7.1970% 2,100,000.00 2,098,361.80 120
18041 10007 7.3900% 0.053% 7.3370% 25,500,000.00 25,466,456.83 120
18066 94541 8.4600% 0.053% 8.4070% 2,300,000.00 2,281,285.13 120
18113 28031 8.9200% 0.053% 8.8670% 3,700,000.00 3,690,814.53 120
18137 20769 7.8300% 0.053% 7.7770% 9,000,000.00 8,989,428.78 120
18173 89121 7.1300% 0.053% 7.0770% 6,500,000.00 6,485,527.78 120
18332 90808 7.4000% 0.053% 7.3470% 8,700,000.00 8,677,025.73 120
18346 21113 7.7400% 0.053% 7.6870% 2,800,000.00 2,798,019.80 120
25024 02127 8.5000% 0.053% 8.4470% 1,255,000.00 1,253,783.98 120
25069 39211 8.1200% 0.053% 8.0670% 7,470,000.00 7,461,880.42 120
25078 43701 8.1600% 0.053% 8.1070% 1,750,000.00 1,748,207.21 120
25117 06437 7.6400% 0.053% 7.5870% 2,500,000.00 2,498,196.02 120
25118 20008 7.0200% 0.053% 6.9670% 6,000,000.00 6,000,000.00 60
25144 77469 8.1000% 0.053% 8.0470% 2,300,000.00 2,297,620.60 180
25165 06611 7.5800% 0.053% 7.5270% 3,800,000.00 3,795,723.63 120
25195 10012-3351 7.8000% 0.053% 7.7470% 3,000,000.00 3,000,000.00 180
25271 93706 7.4600% 0.053% 7.4070% 5,000,000.00 5,000,000.00 120
25312 53151 7.8000% 0.053% 7.7470% 4,800,000.00 4,796,646.22 120
25352 06615 7.3350% 0.053% 7.2820% 2,500,000.00 2,498,082.47 120
25387 8.9450% 0.053% 8.8920% 9,340,000.00 9,331,592.45 120
25423 84116 8.7200% 0.053% 8.6670% 4,100,000.00 4,100,000.00 120
25445 94558 7.9700% 0.053% 7.9170% 2,150,000.00 2,150,000.00 120
25451 77036 7.9500% 0.053% 7.8970% 3,125,000.00 3,121,687.28 120
25479 10017 7.8900% 0.053% 7.8370% 1,550,000.00 1,548,936.53 120
25485 53715 7.4050% 0.053% 7.3520% 2,200,000.00 2,197,453.73 120
25489 6.8650% 0.053% 6.8120% 57,450,000.00 57,450,000.00 60
25508 13021 7.9700% 0.053% 7.9170% 2,200,000.00 2,197,675.41 120
25557 8.8600% 0.053% 8.8070% 15,640,000.00 15,640,000.00 120
25559 98335 7.5300% 0.053% 7.4770% 3,000,000.00 3,000,000.00 120
25577 80206 8.2400% 0.053% 8.1870% 3,500,000.00 3,500,000.00 120
25589 19106-4517 7.7750% 0.053% 7.7220% 3,435,000.00 3,432,587.81 120
25609 7.4500% 0.053% 7.3970% 4,775,000.00 4,775,000.00 120
25675 20904 7.4150% 0.053% 7.3620% 4,000,000.00 3,996,980.53 120
25714 84115-2513 7.6600% 0.053% 7.6070% 5,200,000.00 5,196,262.78 120
25742 55057 7.7000% 0.053% 7.6470% 1,300,000.00 1,298,565.03 120
25764 20748 6.9550% 0.053% 6.9020% 16,000,000.00 15,986,768.04 120
25959 22042 6.9550% 0.053% 6.9020% 6,000,000.00 5,995,038.02 120
26031 77521 8.6150% 0.053% 8.5620% 5,550,000.00 5,550,000.00 120
26032 77077 8.5200% 0.053% 8.4670% 2,390,000.00 2,388,558.08 120
26174 85031 7.5600% 0.053% 7.5070% 3,300,000.00 3,296,274.35 120
<PAGE>
<CAPTION>
REMAINING
TERM TO ORIGINAL
LOAN MATURITY AMORTIZATION INTEREST ONLY FIRST PAYMENT
NUMBER (MOS.) MATURITY DATE ARD DATE ARD RATE STEP (BPS) (MOS.) MONTHS DATE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
5502 118 05/01/09 360 0 06/01/99
5504 118 05/01/09 360 0 06/01/99
8643 119 06/01/09 300 0 07/01/99
9122 119 06/01/09 360 0 07/01/99
9419 108 07/01/08 300 0 08/01/98
9675 118 05/01/09 300 0 06/01/99
11101 167 06/01/13 360 0 07/01/98
11134 117 04/01/09 360 0 05/01/99
11505 113 12/01/08 240 0 01/01/99
12052 118 05/01/09 360 0 06/01/99
12099 119 06/01/09 360 0 07/01/99
12101 179 06/01/14 180 0 07/01/99
12130 111 10/01/08 360 0 11/01/98
16398 118 05/01/09 360 0 06/01/99
16416 117 04/01/09 360 0 05/01/99
16465 119 06/01/09 360 0 07/01/99
16953 116 03/01/09 360 0 04/01/99
16958 116 03/01/09 360 0 04/01/99
17154 118 05/01/09 360 0 06/01/99
17553 115 02/01/09 300 0 03/01/99
17583 119 06/01/09 200 360 0 07/01/99
17660 118 05/01/09 360 0 06/01/99
17718 117 04/01/09 276 0 05/01/99
17875 117 04/01/09 276 0 05/01/99
17877 116 03/01/09 0 120 04/01/99
17923 118 05/01/09 300 0 06/01/99
17927 117 04/01/09 300 0 05/01/99
17961 119 06/01/09 360 0 07/01/99
17962 119 06/01/09 360 0 07/01/99
18041 118 05/01/09 360 0 06/01/99
18066 115 02/01/09 240 0 03/01/99
18113 117 04/01/09 300 0 05/01/99
18137 118 05/01/09 360 0 06/01/99
18173 118 05/01/09 300 0 06/01/99
18332 116 03/01/09 360 0 04/01/99
18346 119 06/01/09 360 0 07/01/99
25024 119 06/01/09 300 0 07/01/99
25069 118 05/01/09 360 0 06/01/99
25078 119 06/01/09 300 0 07/01/99
25117 119 06/01/09 360 0 07/01/99
25118 59 06/01/04 0 60 07/01/99
25144 179 06/01/14 300 0 07/01/99
25165 119 06/01/09 300 0 07/01/99
25195 180 07/01/14 300 0 08/01/99
25271 120 07/01/09 300 0 08/01/99
25312 119 06/01/09 360 0 07/01/99
25352 119 06/01/09 360 0 07/01/99
25387 119 06/01/09 300 0 07/01/99
25423 120 07/01/09 300 0 08/01/99
25445 120 07/01/09 300 0 08/01/99
25451 119 06/01/09 300 0 07/01/99
25479 119 06/01/09 360 0 07/01/99
25485 119 06/01/09 300 0 07/01/99
25489 59 06/01/04 0 60 07/01/99
25508 119 06/01/09 300 0 07/01/99
25557 120 07/01/09 300 0 08/01/99
25559 120 07/01/09 360 0 08/01/99
25577 120 07/01/09 360 0 08/01/99
25589 119 06/01/09 360 0 07/01/99
25609 120 07/01/09 360 0 08/01/99
25675 119 06/01/09 360 0 07/01/99
25714 119 06/01/09 360 0 07/01/99
25742 119 06/01/09 300 0 07/01/99
25764 119 06/01/09 360 0 07/01/99
25959 119 06/01/09 360 0 07/01/99
26031 120 07/01/09 360 0 08/01/99
26032 119 06/01/09 360 0 07/01/99
26174 119 06/01/09 300 0 07/01/99
<PAGE>
<CAPTION>
DEBT
SERVICE INTEREST REAL
LOAN COVERAGE ACCRUAL PROPERTY LIEN
NUMBER MONTHLY P&I APPRAISED VALUE CUT-OFF LTV RATIO METHOD INTEREST POSITION CALL PROTECTION
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
5502 $54,673 $13,200,000 59.39% 1.60x Actual/360 Fee First Defeasance
5504 34,475.64 8,200,000 60.29% 1.59 Actual/360 Fee First Defeasance
8643 25,175.89 4,700,000 63.77% 1.34 Actual/360 Fee First Defeasance
9122 128,646.16 28,400,000 64.39% 1.49 Actual/360 Fee First Defeasance
9419 20,848.52 3,800,000 74.00% 1.42 Actual/360 Fee First Defeasance
9675 22,227.80 4,100,000 66.35% 1.34 Actual/360 Fee First Defeasance
11101 6,635.28 1,700,000 52.53% 1.71 Actual/360 Fee First Defeasance
11134 30,198.75 6,000,000 68.21% 1.38 Actual/360 Fee First Defeasance
11505 21,004.45 4,750,000 52.02% 1.39 Actual/360 Fee First Defeasance
12052 26,813.65 5,300,000 70.67% 1.43 Actual/360 Fee First Defeasance
12099 21,923.16 4,400,000 66.43% 1.26 Actual/360 Fee First Defeasance
12101 30,738.10 9,100,000 35.06% 1.78 Actual/360 Fee First Defeasance
12130 41,340.25 12,000,000 52.94% 1.70 Actual/360 Fee First Defeasance
16398 23,380.39 4,900,000 64.01% 1.45 Actual/360 Fee First Defeasance
16416 27,030.36 4,900,000 70.30% 1.34 Actual/360 Fee First Defeasance
16465 6,678.35 1,375,000 69.04% 1.49 Actual/360 Fee First Defeasance
16953 11,770.46 2,650,000 63.98% 1.83 Actual/360 Fee First Defeasance
16958 17,471.80 4,250,000 58.67% 1.57 Actual/360 Fee First Defeasance
17154 43,945.36 13,300,000 48.80% 1.83 Actual/360 Fee First Defeasance
17553 17,213.72 4,100,000 56.98% 1.84 Actual/360 Fee First Defeasance
17583 39,793.21 8,000,000 61.84% 1.36 Actual/360 Fee First Defeasance
17660 106,456.47 22,500,000 67.91% 1.48 Actual/360 Fee First Defeasance
17718 35,754.55 6,700,000 63.23% 1.56 Actual/360 Fee First Defeasance
17875 36,962.99 8,200,000 59.22% 1.48 Actual/360 Fee First Defeasance
17877 44,113.67 20,500,000 37.32% 2.15 Actual/360 Fee First Defeasance
17923 13,117.12 2,700,000 61.92% 1.38 Actual/360 Fee First Defeasance
17927 11,052.34 3,230,000 43.22% 1.86 Actual/360 Fee First Defeasance
17961 10,232.64 4,550,000 32.94% 3.18 Actual/360 Fee First Defeasance
17962 14,325.70 10,100,000 20.78% 4.45 Actual/360 Fee First Defeasance
18041 176,382.93 50,000,000 50.93% 1.65 Actual/360 Fee First Defeasance
18066 19,901.74 4,100,000 55.64% 1.55 Actual/360 Leasehold First Defeasance
18113 30,847.82 5,700,000 64.75% 1.59 Actual/360 Fee First Defeasance
18137 64,975.36 12,600,000 71.34% 1.41 Actual/360 Fee First Defeasance
18173 46,481.10 11,700,000 55.43% 1.94 Actual/360 Fee First Defeasance
18332 60,237.04 11,600,000 74.80% 1.38 Actual/360 Fee First Defeasance
18346 20,040.20 4,000,000 69.95% 1.51 Actual/360 Fee First Defeasance
25024 10,105.60 2,300,000 54.51% 1.54 Actual/360 Fee First Defeasance
25069 55,438.39 11,700,000 63.78% 1.28 Actual/360 Fee First Defeasance
25078 13,692.79 2,590,000 67.50% 1.41 Actual/360 Fee First Defeasance
25117 17,720.65 4,100,000 60.93% 1.57 Actual/360 Fee First Defeasance
25118 35,100.00 34,000,000 17.65% 7.37 30/360 Leasehold First Defeasance
25144 17,904.41 3,550,000 64.72% 1.39 Actual/360 Fee First Defeasance
25165 28,279.70 7,175,000 52.90% 1.77 Actual/360 Fee First Defeasance
25195 22,758.43 6,800,000 44.12% 1.65 Actual/360 Fee First Defeasance
25271 36,819.57 9,600,000 52.08% 1.52 Actual/360 Fee First Defeasance
25312 34,553.78 6,000,000 79.94% 1.31 Actual/360 Fee First Defeasance
25352 17,198.78 5,800,000 43.07% 1.93 Actual/360 Fee First Defeasance
25387 78,029.47 13,850,000 67.38% 1.55 Actual/360 Fee First Defeasance
25423 33,624.36 5,900,000 69.49% 1.50 Actual/360 Fee First Defeasance
25445 16,551.34 4,200,000 51.19% 1.68 Actual/360 Fee First Defeasance
25451 24,015.84 4,300,000 72.60% 1.35 Actual/360 Fee First Defeasance
25479 11,254.72 2,400,000 64.54% 1.39 Actual/360 Fee First Defeasance
25485 16,122.10 3,350,000 65.60% 1.48 Actual/360 Fee First Defeasance
25489 328,661.88 122,570,000 46.87% 2.48 30/360 Fee First Defeasance
25508 16,936.26 3,690,000 59.56% 1.41 Actual/360 Fee First Defeasance
25557 129,754.17 24,428,000 64.02% 1.56 Actual/360 Fee First Defeasance
25559 21,038.10 4,850,000 61.86% 1.45 Actual/360 Fee First Defeasance
25577 26,269.73 5,300,000 66.04% 1.35 Actual/360 Fee First Defeasance
25589 24,668.13 4,300,000 79.83% 1.29 Actual/360 Fee First Defeasance
25609 33,224.16 6,925,000 68.95% 1.53 Actual/360 Fee First Defeasance
25675 27,736.14 5,350,000 74.71% 1.35 Actual/360 Fee First Defeasance
25714 36,930.56 6,546,000 79.38% 1.39 Actual/360 Fee First Defeasance
25742 9,776.64 1,800,000 72.14% 1.48 Actual/360 Fee First Defeasance
25764 105,965.29 27,000,000 59.21% 1.76 Actual/360 Fee First Defeasance
25959 39,736.98 11,600,000 51.68% 1.98 Actual/360 Fee First Defeasance
26031 43,127.85 7,750,000 71.61% 1.26 Actual/360 Fee First Defeasance
26032 18,410.92 3,275,000 72.93% 1.26 Actual/360 Fee First Defeasance
26174 24,515.65 4,850,000 67.96% 1.52 Actual/360 Fee First Defeasance
</TABLE>
<PAGE>
EFFECTIVE FREE PREPAY
LOAN LOCKOUT PERIOD WINDOW
NUMBER (MOS.) (MOS.)
- ------------------------------------------------
5502 120 0
5504 120 0
8643 120 0
9122 120 0
9419 120 0
9675 120 0
11101 177 3
11134 120 0
11505 119 1
12052 120 0
12099 120 0
12101 180 0
12130 120 0
16398 120 0
16416 120 0
16465 120 0
16953 120 0
16958 120 0
17154 120 0
17553 119 1
17583 117 3
17660 117 3
17718 120 0
17875 120 0
17877 120 0
17923 117 3
17927 120 0
17961 120 0
17962 120 0
18041 117 3
18066 120 0
18113 120 0
18137 120 0
18173 120 0
18332 120 0
18346 120 0
25024 120 0
25069 120 0
25078 120 0
25117 120 0
25118 57 3
25144 180 0
25165 120 0
25195 180 0
25271 120 0
25312 120 0
25352 120 0
25387 120 0
25423 120 0
25445 120 0
25451 120 0
25479 120 0
25485 120 0
25489 59 1
25508 120 0
25557 120 0
25559 114 6
25577 120 0
25589 120 0
25609 120 0
25675 120 0
25714 120 0
25742 120 0
25764 119 1
25959 119 1
26031 120 0
26032 120 0
26174 120 0
L-1
<PAGE>
SCHEDULE II
WELLS FARGO LOAN SCHEDULE
S-II-1
EXHIBITS TO POOLING AND SERVICING AGREEMENT
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
LOAN
NUMBER LOAN NAME ADDRESS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
850937 PADI Building 30151 Tomas Street
850952 Los Angeles Times Building 6710 Variel Avenue
850995 The Cypress Building 19200 Stevens Creek Boulevard
851072 The Pavilion Center 1900-1996 Hacienda Drive
851087 AMC Theatres 10655 Westminster Blvd.
851122 305 Forest Ave 305 Forest Avenue
851129 Milano North 23022 Samuel Street
851171 Milestone Too Shopping Center 4833 South Front Street
851174 Century Park Plaza Office Building 287 Century Circle
851192 Friendswood/Postwood Portfolio
851195 Alta Vista Country Club 777 E. Alta Vista Street
851200 21601 Devonshire Street 21601 Devonshire Street
851203 Rancho Dominquez Industrial Building 3064 East Maria Street
851219 The Village Apartments 11474 Central Ave
851236 Arbor Plaza 23784 West Road
851238 Mountain View Plaza 9812-9832 N. 7th St.
851242 12701 Van Nuys Blvd. 12701 Van Nuys Blvd.
851243 12685 Van Nuys Boulevard 12685 Van Nuys Blvd.
851244 49-51 Strathearn & 50 Moreland 49-51 Strathearn Pl. & 50 Moreland Rd.
851245 27712 Avenue Mentry 27712 Avenue Mentry
851246 Los Alamitos Professional Medical Building 10861 Cherry Street
851248 1371 Beverly Glen Apartments 1371 S. Beverly Glen Blvd
851250 Redlands Apartments 8110 Redlands Street
851252 Rogers Business Center 20401 County Road 81
851256 Johnson Warehouse - Colorado Springs 4225 North Sinton Road
851258 The Design Center at Colorado Springs 5045 List Drive
851260 Technology Park 18450 Technology Drive
851261 Fountains Shopping Center 6218 66th Street
851263 Mountain View Plaza 1121 Valley Boulevard, Ste. A-I
851264 View Point Apartments 10334 Oasis
851265 31240 La Baya Drive 31240 La Baya Drive
851266 Lamar Plaza Apartments 500 W. Lamar
851267 Mckinney Portfolio
851272 Camino Palmero Apartments 1725 Camino Palmero
851273 12959 Oxnard Street 12959 Oxnard Street
851275 United West Group Building 14980 North 78th Way
851278 Arroyo Square Apartments 2431 College Hills Boulevard
851279 Morrison Park Apartments 10932 Morrison Street
851280 Huston Park Apartments 10933 Huston Street
851282 Melrose Place 6511-B Melrose Trail
851283 Tradewinds Apartments 8802 Tradewind Drive
851284 The Tuscany Apartments 1301 West Lynn
851285 Willow Glen Apartments 1301 Sycamore School Road
851286 The Springs 4716 Duval Road
851288 Northdale Commons Apartments 2803-2828 and 11718-11734 Crooked Lake Blvd.
851292 1685 Plymouth 1685 Plymouth
851296 Silver Springs Apartments 7077-7107 North Antioch Ave.
851299 Grand & McFadden Business Park 1101 S. Grand Ave. / 1415 E. McFadden Ave.
851303 West Covina Apartments 1513 West San Bernardino
851305 Marilla Sundance Apartments 9648 Marilla Drive
851306 Spring Woods Apartments 4600 W. Vegas Drive
851307 Irvine-FedEx Building 18651 Von Karman Drive
851308 GI Joe's at Poplar Square SC 2370 Poplar Drive
851310 Part of Liberty Village 13738, 13782, 13790 Bear Valley Rd.
851312 Dolphin & Crane Buildings 2929-2935 East Apache
851317 The Bay Club Hotel & Marina 2131 Shelter Island Drive
851319 Bahia Vista Apartments 674 W. 27th Street
851320 Grant Place Apartments 3518 Grant Avenue
851322 1150 W. Avenue J 1150 W. Avenue J
851323 Scherzinger Lane Apartments 17740 Scherzinger Lane
851327 TCI Call Center 1323 - 34th Avenue East
851328 Maralisa Apartments 6112-6175 Water Lily Commons
851329 Saturn Industrial Center 2751 - 2791 Saturn Street
851330 Town & Country Plaza 1535-1609 Vassar Street
851333 Anchor Business Park 2088-2193 Anchor Court
851334 Security Building/White Building 203 & 209 East Fourth Avenue
851335 4034 S. Pacific Avenue 4034 S. Pacific Avenue
851336 400 University Avenue 400 University Avenue
851337 Rollingwood Duplex Homes 9300 Ridgeside Lane
851338 Acorn Paper Products 3686 East Olympic Boulevard
851340 Ramona Senior Center 9843 Ramona Street
851341 Bellflower Senior Center 9919 Ramona Street
851342 Artesia Senior Center 10427 Artesia Boulevard
851343 Halltree Apartments 22921 30th Avenue South
851344 Carpenter's Village Shopping Center 2814 Sepulveda Blvd.
851347 Sunrise Village Apartments 3993 Iowa Avenue
851348 Patricia Place Apartments 4750-4754 16th Avenue NE
851349 Eastwood Oaks Apartments 25-289 Tom Polk Circle
851351 Universal Reprographics 16781 Milliken Avenue
851352 The 400 Center 400 Lake Cook Road
851353 25-75 N. Santa Anita Avenue 25-75 N. Santa Anita Avenue
851354 Equitable Center 530 Center Street NE
851355 3301 & 3333 Sunrise Blvd. 3301 & 3333 Sunrise Blvd.
851356 Woodward Business Park 7580 North Ingram Avenue
851357 Davidson Warehouse 1613 Capital Circle NE
851358 Country Club Village MHP 400 Mona Lane
851359 Stockton-Walgreens 5114, 5210, 5228 N. El Dorado Street
851360 Marshall Avenue Industrial 1027, 1035 North Marshall Avenue
851361 Stratford Square 1438 Camino del Mar
851362 1275-81 8th Street 1275-81 8th Street
851363 West Loop at 18th St. Shopping Center 1692 thru 1724 West Loop North
851364 Covington Pointe Apartments 5125 Fairmont
851365 2228 Oakland Road 2228 Old Oakland Road
851367 Ocean Bluffs Mobilehome Park 3340 Del Sol Blvd.
851369 Central Computer Building 3777 Stevens Creek Boulevard
851370 2302 Trade Zone Boulevard 2302 Trade Zone Boulevard
851371 400 Emerson Street 400 Emerson Street
851372 Arctic Business Park I 4101 Arctic Boulevard, 600 & 700 West 41st Ave
851373 10 South Knoll & 36 Tiburon 10 South Knoll Lane & 36 Tiburon Blvd.
851374 Sumner Estates Mobile Home Park 5200 N.E. 92nd Avenue
851377 Davidson Industrial Park 6325, 6335, 6345, 6355, 6365 Marindustry Drive
851378 Hermco Center, I, II 3400, 3340-3360, 3446-3464 Arden Road
851381 Mountain View Apartments 1201 & 1301 Scott Avenue
851382 Hydra Re-load 1497 Tanforan Ave
851383 1211 Newell Avenue 1211 Newell Avenue
851384 Crossroads Office Center 700 E. El Camino Real
851385 Valley Office Center 828 South Bascom Avenue
851386 Sobol Apartments 222 Melwood Street, 229 N. Craig, 135-137 N. Craig
851387 Luke Avenue Business Park 5214 West Luke Avenue, 5205-5237 West Montebello Ave.,
5622 North 52nd Ave.
851388 Metro Business Center 10801 North 24th Avenue
851389 510 & 550 Parrott Street 510 & 550 Parrott Street
851390 Taylor Plaza Shopping Center 3102-3214 North Main
851391 Lamplighters Senior Citizens Inns 2055 Range Avenue
851392 411 North Marshall Ave. 411, 425, 435 North Marshall Avenue
851393 Windfaire Apartments 11055 Otsego Street
851394 Crenshaw Townhouse 1327 & 1329 Crenshaw Boulevard
851395 Chadron Apartments 13622 Chadron Avenue
851396 Vassar Terrace Apartments 7000 Vassar Avenue
851398 Lemoli Terrace 14030 Lemoli Avenue
851399 Saticoy Gardens 14955 Saticoy Street
851400 Regency Premier Apartments 8525 Tobias Avenue
851401 Kingswood Apartments 1720, 1754, 1768 West 1300 North
851402 Grandview School 2870 South Connor Street
851403 Santa Barbara Plaza 2589, 2665, 2719 Air Fresno Dr. & 2590, 2666, 2720
851404 Waterford Center 9003-9113 Research Boulevard
851405 City Center Shopping Center 444 East Williams Street
851406 Ashley Plaza Shopping Center 201 North Berkeley Boulevard
851408 The Clarion - Del Mar Inn 720 Camino Del Mar
851409 Hayward Allsafe Mini Storage 15 Cannery Court
851411 Dublin Allsafe 6250 Sierra Lane
851415 Hannum Industrial Park 5750, 5760, 5770 Hannum Avenue
851416 La Cienega/Jefferson Industrial Park 3341-3363 S. La Cienega Place and 5801-05 West Jef
851418 622 Contra Costa Boulevard 622 Contra Costa Blvd.
851419 Lawrence Properties
851420 1405 San Fernando Blvd. 1405 San Fernando Blvd.
851421 East Hill Apartments 1710 Harrison Avenue SE
851423 Handicraft Building 337-341 E. Liberty Street
851424 Santa Clara Self Storage 1700 De la Cruz
851425 Culver Plaza 9901-19 Washington Boulevard, 3855-67 Hughes Ave.
851426 Riviera Center 1815 Via El Prado
851428 Feit Electric Building 4901 Gregg Road
851429 El Malke Apartments 11301 53rd Street
851430 Apache Junction - Bashas 1477 W. Apache Trail
851433 Pacific Sunrise Apartments 4612 22nd Avenue N.E.
851434 Emerald Coast Shopping Center 15003 Emerald Coast Parkway
851435 710 Sansome Street 710 Sansome Street
851438 17112 Armstrong Avenue 17112 Armstrong Ave.
851439 South Tech Business Park 4305, 4315, 4325, 4335, 4345 S. Industrial and 432 Adelbaron Street
851441 1600 Dell Avenue 1600 Dell Avenue
851442 570 East La Cadena 570 East La Cadena
851443 Des Peres 14 Cine 12701 Manchester Road
851444 O'Fallon 15 Cine 1320 Central Park Drive
851445 St. Charles 18 Cine 1830 First Capitol Drive-South
851446 St. Clair 10 Cine 50 Ludwig Drive
851447 Halls Ferry 14 Cine 2845 Target Drive
851449 C&C MHC 9555 Struthers Road
851450 Oxnard Plaza Apartments 11313 Oxnard Street
851451 1001 Shannon Court 1001 Shannon Court
851452 6052 Industrial Way 6052 Industrial Way
851453 Oakmont Medical Building 6575 Oakmont Drive
851454 Rock Avenue Business Park 920 Rock Ave.
851455 Schlumberger Building 85 West Moreland Road
851456 Port St. Johns Apartments 9249-9259 N. Fortune Ct.
851457 Manteca Self Store-It 1735 E. Yosemite Avenue
851459 LifeCare Specialty Hospital 6161 Harry Hines Blvd.
851460 Piatti's Restaurant & Shelter Bay Office Complex 625-655 Redwood Hwy
851463 Lockridge Street Industrial 3959 & 3979 Lockridge Street
851464 900 & 916 Western Avenue 900 & 916 Western Avenue
851465 Summit North Shopping Center 2214, 2220, 2230 Mall Dr. East
851467 Factual Data Office Building 5200 Hahns Peak Drive
851468 470 Spear Street 444 & 470 Spear Street
851469 Willows Apartments 1959 Lake Boulevard
851472 Temescal Plaza Shopping Center 5055-5095 Telegraph Avenue
851476 800 West El Camino Real 800 El Camino Real West
851477 Financial Center 1615 Bonanza Street
851478 Meadowbrook Mobile Home Community 1220 Bennett Way
851479 8800 Promenade Professional Bldg. 8800 S.E. Sunnyside Road
851481 8914-8918 Santa Monica Blvd. 8914-8918 Santa Monica Blvd.
851484 Lazy Pet Products 540 W. Lambert Avenue
851485 Spanish Oaks Apts 2301 Valley View Blvd.
851486 North Mollison 1294 N. Mollison Avenue
851487 Ballantyne Apartments 542/548 Ballantyne
851488 Corinthian Apartments 4981 Catoctin Drive
851493 Pepper Grove Business Center 1609 S. Grove Avenue/1240-60 East Locust
851494 Valley View Business Park 3021 South Valley View
851498 First & Stewart Building 101 Stewart Street
851499 Pleasanton Office Portfolio 5758, 5794, 5850, 5925, 5956-5964 W. Las Positas
851500 The Landmark Business & Financial Center 1750 Howe Avenue
851501 America's Budget Storage, Canton MI 40671 Joy Road
851503 Kelsey Apartments 4233 - 9th Avenue NE
851507 Southwood Terrace 504, 520, 612 James Avenue
851508 Quail Meadows Apartments 6415 Longley Lane
851520 Superstition Springs Mini Storage 5510 East Southern Avenue
851525 Redi Packaging Warehouse 6002 Donoho
851526 Fountain Garden Apartments 3165, 3175 E. Fountain Blvd.
851528 Rancho Las Palmas Apartments 202-208 W. San Ysidro Blvd.
851530 Piedmont Pointe Office Park 1874 Piedmont Road
851539 Bromley Apartments 1525 E. 2nd Street
851548 Corporate Express 1133 Popular Creek Road
851550 CompuCom Systems Headquarters 7171 Forest Lane
851555 Mikohn Gaming Warehouse 3665 W. Diablo Drive
851556 Smoky Hill Village Phase II 5616 South Gibralter Way
851560 Gateway Center 45 Village Square
851563 King Street Metro Place - Phase I 1737 King St.
851565 Office Depot Dell Range Pavilion 1225 Dell Range Boulevard
851569 Wakefield Hall 2101 New Hampshire Ave NW
851577 Royal Oaks Apartments 540-541 Bryan Street
851578 Royal Village Apartments - Gainesville 710 SW Depot Avenue
851579 Royal Lexington Apartments 217 Virginia Avenue
851580 Northgate Lakes Apartments 1310-1389 Northgate Circle
851581 Royal Pavilion Apartments 1700-1702 W. Call Street
851582 Royal Village Apartments - Tallahassee 1835 West Call Street
851586 Santan Fiesta 265-285 North Federal Street
851802 Plaza De Campana 3205-3329 East Bell Road
851806 Treehouse Apartments 800 North LBJ
851808 Pioneer Village Apartments 1913, 1935 & 2005 Perlich Avenue
851809 University Square 7006 University Avenue
<PAGE>
<CAPTION>
LOAN GROSS MORTGAGE ADMINISTRATIVE NET MORTGAGE
NUMBER CITY STATE ZIP CODE RATE COST RATE RATE ORIGINAL BALANCE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
850937 Rancho Santa Margarita CA 92688 7.3600% 0.053% 7.3070% $7,000,000.00
850952 Canoga Park CA 91303 6.6100% 0.053% 6.5570% 1,100,000.00
850995 Cupertino CA 95014 7.4050% 0.053% 7.3520% 5,400,000.00
851072 Vista CA 92083 7.5240% 0.053% 7.4710% 9,500,000.00
851087 Westminster CO 80030 7.3700% 0.053% 7.3170% 18,900,000.00
851122 Laguna Beach CA 92651 6.9700% 0.053% 6.9170% 750,000.00
851129 Torrance CA 90505 6.8500% 0.053% 6.7970% 1,100,000.00
851171 Castle Rock CO 80104 6.5300% 0.053% 6.4770% 825,000.00
851174 Louisville CO 80027 7.2500% 0.053% 7.1970% 1,000,000.00
851192 7.1400% 0.053% 7.0870% 2,250,000.00
851195 Placentia CA 92870 6.6550% 0.053% 6.6020% 1,150,000.00
851200 Chatsworth CA 91311 7.1700% 0.053% 7.1170% 2,210,000.00
851203 Rancho Dominguez CA 90220 7.2400% 0.053% 7.1870% 1,100,000.00
851219 Chino CA 91710 6.2200% 0.053% 6.1670% 3,100,000.00
851236 Brownstown Township MI 48183 6.7500% 0.053% 6.6970% 1,612,500.00
851238 Phoenix AZ 85020 6.4100% 0.053% 6.3570% 750,000.00
851242 Pacoima CA 91331 6.2100% 0.053% 6.1570% 1,590,000.00
851243 Pacoima CA 91331 6.0600% 0.053% 6.0070% 3,245,000.00
851244 Simi Valley CA 93065 7.1250% 0.053% 7.0720% 2,775,000.00
851245 Valencia CA 91355 6.7450% 0.053% 6.6920% 4,500,000.00
851246 Los Alamitos CA 90720 6.9650% 0.053% 6.9120% 3,000,000.00
851248 Los Angeles CA 90024 7.1100% 0.053% 7.0570% 1,500,000.00
851250 Playa del Rey CA 90293 6.8100% 0.053% 6.7570% 1,150,000.00
851252 Rogers MN 55374 6.4800% 0.053% 6.4270% 1,000,000.00
851256 Colorado Springs CO 80907 6.9850% 0.053% 6.9320% 1,010,000.00
851258 Colorado Springs CO 80919 7.0000% 0.053% 6.9470% 1,020,000.00
851260 Morgan Hill CA 95037 6.4500% 0.053% 6.3970% 1,300,000.00
851261 Pinellas Park FL 34665 7.9700% 0.053% 7.9170% 1,360,000.00
851263 Tehachapi CA 93561 7.5800% 0.053% 7.5270% 1,000,000.00
851264 San Antonio TX 78216 6.5800% 0.053% 6.5270% 1,800,000.00
851265 Westlake Village CA 91362 6.9100% 0.053% 6.8570% 1,120,000.00
851266 McKinney TX 75069 6.4000% 0.053% 6.3470% 1,000,000.00
851267 6.6550% 0.053% 6.6020% 2,710,000.00
851272 Los Angeles CA 90046 6.7900% 0.053% 6.7370% 1,000,000.00
851273 Van Nuys CA 91606 6.8700% 0.053% 6.8170% 1,000,000.00
851275 Scottsdale AZ 85260 6.6700% 0.053% 6.6170% 850,000.00
851278 San Angelo TX 76904 5.7500% 0.053% 5.6970% 1,800,000.00
851279 North Hollywood CA 91601 7.2300% 0.053% 7.1770% 2,200,000.00
851280 North Hollywood CA 91601 7.2300% 0.053% 7.1770% 2,200,000.00
851282 Austin TX 78727 5.9100% 0.053% 5.8570% 1,725,000.00
851283 Windcrest TX 78239 6.4250% 0.053% 6.3720% 1,500,000.00
851284 Austin TX 78703 5.7800% 0.053% 5.7270% 850,000.00
851285 Fort Worth TX 76134 6.0800% 0.053% 6.0270% 2,100,000.00
851286 Austin TX 78727 5.7100% 0.053% 5.6570% 1,200,000.00
851288 Coon Rapids MN 55433 5.9800% 0.053% 5.9270% 955,000.00
851292 Mountain View CA 94043 6.6000% 0.053% 6.5470% 1,100,000.00
851296 Fresno CA 93722 6.2200% 0.053% 6.1670% 920,000.00
851299 Santa Ana CA 92075 6.8100% 0.053% 6.7570% 1,500,000.00
851303 West Covina CA 91790 6.9300% 0.053% 6.8770% 5,600,000.00
851305 Lakeside CA 92040 6.3400% 0.053% 6.2870% 2,850,000.00
851306 Las Vegas NV 89108 6.3400% 0.053% 6.2870% 5,140,000.00
851307 Irvine CA 92612 6.3500% 0.053% 6.2970% 1,500,000.00
851308 Medford OR 97504 6.3600% 0.053% 6.3070% 970,000.00
851310 Victorville CA 92392 7.3400% 0.053% 7.2870% 1,900,000.00
851312 Tulsa OK 74110 6.7200% 0.053% 6.6670% 2,030,000.00
851317 San Diego CA 92106 6.9750% 0.053% 6.9220% 6,950,000.00
851319 San Pedro CA 90731 5.8900% 0.053% 5.8370% 660,000.00
851320 San Antonio TX 78218 6.5300% 0.053% 6.4770% 270,000.00
851322 Lancaster CA 93534 5.9600% 0.053% 5.9070% 1,380,000.00
851323 Canyon Country CA 91351 5.7500% 0.053% 5.6970% 1,600,000.00
851327 Fife WA 98424 6.7000% 0.053% 6.6470% 3,900,000.00
851328 Livermore CA 94550 6.9350% 0.053% 6.8820% 2,100,000.00
851329 Brea CA 92821 6.2400% 0.053% 6.1870% 1,580,000.00
851330 Reno NV 89502 6.5500% 0.053% 6.4970% 1,750,000.00
851333 Thousand Oaks (Newbury Park) CA 91320 6.1400% 0.053% 6.0870% 2,500,000.00
851334 Olympia WA 98501 6.1500% 0.053% 6.0970% 1,650,000.00
851335 San Pedro CA 90731 5.8900% 0.053% 5.8370% 1,300,000.00
851336 Sacramento CA 95825 7.0300% 0.053% 6.9770% 1,942,500.00
851337 Orangevale CA 95662 6.4400% 0.053% 6.3870% 3,000,000.00
851338 Los Angeles CA 90023 7.3400% 0.053% 7.2870% 5,000,000.00
851340 Bellflower CA 90706 6.5600% 0.053% 6.5070% 2,528,000.00
851341 Bellflower CA 90706 6.5600% 0.053% 6.5070% 1,264,000.00
851342 Bellflower CA 90706 6.5600% 0.053% 6.5070% 2,640,000.00
851343 Des Moines WA 98198 6.6200% 0.053% 6.5670% 1,400,000.00
851344 Torrance CA 90505 7.1100% 0.053% 7.0570% 1,500,000.00
851347 Riverside CA 92507 6.4400% 0.053% 6.3870% 3,200,000.00
851348 Seattle WA 98052 6.6900% 0.053% 6.6370% 1,900,000.00
851349 Chico CA 95973 7.3000% 0.053% 7.2470% 1,550,000.00
851351 Irvine CA 92606 7.5800% 0.053% 7.5270% 1,075,000.00
851352 Deerfield IL 60015 6.3900% 0.053% 6.3370% 2,000,000.00
851353 Arcadia CA 91006 6.2000% 0.053% 6.1470% 1,675,000.00
851354 Salem OR 97301 6.7100% 0.053% 6.6570% 4,500,000.00
851355 Rancho Cordova CA 95742 7.0600% 0.053% 7.0070% 1,225,000.00
851356 Fresno CA 93711 7.1600% 0.053% 7.1070% 1,447,000.00
851357 Tallahassee FL 32308 6.9000% 0.053% 6.8470% 650,000.00
851358 Henderson NV 89015 6.3350% 0.053% 6.2820% 1,100,000.00
851359 Stockton CA 95207 6.4200% 0.053% 6.3670% 1,000,000.00
851360 El Cajon CA 92020 6.3500% 0.053% 6.2970% 800,000.00
851361 Del Mar CA 92014 6.8200% 0.053% 6.7670% 1,760,000.00
851362 San Francisco CA 94122 6.1800% 0.053% 6.1270% 1,030,000.00
851363 Houston TX 77008 6.7500% 0.053% 6.6970% 1,070,000.00
851364 Abilene TX 79605 6.5500% 0.053% 6.4970% 1,800,000.00
851365 San Jose CA 95131 6.3500% 0.053% 6.2970% 2,900,000.00
851367 San Diego CA 92154 6.5100% 0.053% 6.4570% 9,975,000.00
851369 Santa Clara CA 95051 6.2500% 0.053% 6.1970% 3,000,000.00
851370 San Jose CA 95131 7.5600% 0.053% 7.5070% 5,100,000.00
851371 Palo Alto CA 94301 6.3000% 0.053% 6.2470% 2,400,000.00
851372 Anchorage AK 99503 7.2000% 0.053% 7.1470% 1,375,000.00
851373 Mill Valley CA 94941 6.6000% 0.053% 6.5470% 1,400,000.00
851374 Portland OR 97220 6.2900% 0.053% 6.2370% 750,000.00
851377 San Diego CA 92121 5.7500% 0.053% 5.6970% 1,500,000.00
851378 Hayward CA 94545 6.9300% 0.053% 6.8770% 3,000,000.00
851381 Clovis CA 93612 6.3900% 0.053% 6.3370% 2,800,000.00
851382 Woodland CA 95776 7.3200% 0.053% 7.2670% 820,000.00
851383 Walnut Creek CA 94596 6.5600% 0.053% 6.5070% 1,700,000.00
851384 Mountain View CA 94022 6.7200% 0.053% 6.6670% 6,250,000.00
851385 San Jose CA 95128 6.8650% 0.053% 6.8120% 3,525,000.00
851386 Pittsburgh PA 15213 7.5200% 0.053% 7.4670% 3,050,000.00
851387 Glendale AZ 85301 6.5300% 0.053% 6.4770% 2,700,000.00
851388 Phoenix AZ 85029 6.5600% 0.053% 6.5070% 3,800,000.00
851389 San Jose CA 95112 6.7000% 0.053% 6.6470% 1,200,000.00
851390 Taylor TX 76574 6.2200% 0.053% 6.1670% 1,700,000.00
851391 Santa Rosa CA 95401 5.6500% 0.053% 5.5970% 1,412,000.00
851392 El Cajon CA 92020 6.5200% 0.053% 6.4670% 1,500,000.00
851393 North Hollywood CA 91601 6.7700% 0.053% 6.7170% 1,970,000.00
851394 Los Angeles CA 90019 7.0200% 0.053% 6.9670% 1,645,000.00
851395 Hawthorne CA 90250 6.7700% 0.053% 6.7170% 2,137,500.00
851396 Canoga Park CA 91303 7.0200% 0.053% 6.9670% 1,575,000.00
851398 Hawthorne CA 90250 7.0200% 0.053% 6.9670% 1,365,000.00
851399 Van Nuys CA 91405 6.7700% 0.053% 6.7170% 3,975,000.00
851400 Panorama City CA 91402 6.7100% 0.053% 6.6570% 7,200,000.00
851401 Salt Lake City UT 28205 6.4200% 0.053% 6.3670% 1,900,000.00
851402 Salt Lake City UT 84109 6.8200% 0.053% 6.7670% 700,000.00
851403 Fresno CA 93727 8.2200% 0.053% 8.1670% 5,400,000.00
851404 Austin TX 78755 5.9900% 0.053% 5.9370% 5,500,000.00
851405 Carson City NV 89701 8.0200% 0.053% 7.9670% 1,500,000.00
851406 Goldsboro NC 27534 7.8600% 0.053% 7.8070% 3,600,000.00
851408 Del Mar CA 92014 7.0000% 0.053% 6.9470% 2,400,000.00
851409 Hayward CA 94544 6.6300% 0.053% 6.5770% 2,040,000.00
851411 Dublin CA 94568 6.6300% 0.053% 6.5770% 3,800,000.00
851415 Culver City CA 90230 6.4000% 0.053% 6.3470% 3,235,000.00
851416 Los Angeles CA 90016 6.3800% 0.053% 6.3270% 1,650,000.00
851418 Pleasant Hill CA 94523 6.7800% 0.053% 6.7270% 1,300,000.00
851419 7.0900% 0.053% 7.0370% 5,650,000.00
851420 Burbank CA 91504 5.7000% 0.053% 5.6470% 2,625,000.00
851421 Port Orchard WA 98366 6.4800% 0.053% 6.4270% 1,100,000.00
851423 Ann Arbor MI 48104 8.0700% 0.053% 8.0170% 2,300,000.00
851424 Santa Clara CA 95032 6.4900% 0.053% 6.4370% 2,500,000.00
851425 Culver City CA 90232 6.7600% 0.053% 6.7070% 5,000,000.00
851426 Redondo Beach CA 90277 6.9800% 0.053% 6.9270% 2,220,000.00
851428 Pico Rivera CA 90660 6.0700% 0.053% 6.0170% 3,900,000.00
851429 Temple Terrace FL 33617 7.8900% 0.053% 7.8370% 1,050,000.00
851430 Apache Junction AZ 95219 7.5800% 0.053% 7.5270% 2,600,000.00
851433 Seattle WA 98105 6.5300% 0.053% 6.4770% 4,300,000.00
851434 Destin FL 32541 7.1200% 0.053% 7.0670% 1,400,000.00
851435 San Francisco CA 94111 6.6700% 0.053% 6.6170% 4,800,000.00
851438 Irvine CA 92614 6.2600% 0.053% 6.2070% 4,788,000.00
851439 Las Vegas NV 89103 6.9100% 0.053% 6.8570% 11,500,000.00
851441 Campbell CA 95008 6.5700% 0.053% 6.5170% 1,600,000.00
851442 Riverside CA 92501 7.5900% 0.053% 7.5370% 1,000,000.00
851443 Des Peres MO 63131 8.2550% 0.053% 8.2020% 8,700,000.00
851444 O'Fallon IL 62269 8.2550% 0.053% 8.2020% 6,800,000.00
851445 St. Charles MO 63303 8.2550% 0.053% 8.2020% 10,500,000.00
851446 Fairview Heights IL 62208 8.2550% 0.053% 8.2020% 3,000,000.00
851447 St. Louis MO 63136 7.7350% 0.053% 7.6820% 3,000,000.00
851449 New Middletown OH 44442 7.0200% 0.053% 6.9670% 1,610,000.00
851450 North Hollywood CA 91606 6.8000% 0.053% 6.7470% 2,320,000.00
851451 Livermore CA 94550 6.9200% 0.053% 6.8670% 785,000.00
851452 Livermore CA 94550 6.8400% 0.053% 6.7870% 2,000,000.00
851453 Santa Rosa CA 95409 7.3300% 0.053% 7.2770% 1,500,000.00
851454 San Jose CA 95131 7.5200% 0.053% 7.4670% 7,075,000.00
851455 Simi Valley CA 93065 6.8600% 0.053% 6.8070% 6,600,000.00
851456 Portland OR 97203 6.6500% 0.053% 6.5970% 1,424,850.00
851457 Manteca CA 95336 7.2100% 0.053% 7.1570% 1,200,000.00
851459 Dallas TX 75235 6.7200% 0.053% 6.6670% 5,000,000.00
851460 Mill Valley CA 94941 6.9000% 0.053% 6.8470% 8,650,000.00
851463 San Diego CA 92101 6.2300% 0.053% 6.1770% 1,650,000.00
851464 Glendale CA 91201 6.8700% 0.053% 6.8170% 2,500,000.00
851465 Waterford Township MI 48328 6.7200% 0.053% 6.6670% 10,550,000.00
851467 Loveland CO 80538 7.6100% 0.053% 7.5570% 2,650,000.00
851468 San Francisco CA 94105 7.1500% 0.053% 7.0970% 5,500,000.00
851469 Davis CA 95616 6.6100% 0.053% 6.5570% 5,000,000.00
851472 Oakland CA 94609 6.9000% 0.053% 6.8470% 2,475,000.00
851476 Mountain View CA 94040 6.9700% 0.053% 6.9170% 19,500,000.00
851477 Walnut Creek CA 94596 7.0100% 0.053% 6.9570% 1,500,000.00
851478 Templeton CA 93465 7.8400% 0.053% 7.7870% 2,000,000.00
851479 Clackamas OR 97015 7.2700% 0.053% 7.2170% 2,950,000.00
851481 West Hollywood CA 90069 7.3400% 0.053% 7.2870% 2,500,000.00
851484 Brea CA 92821 6.7000% 0.053% 6.6470% 1,750,000.00
851485 Las Vegas NV 89102 6.9000% 0.053% 6.8470% 4,400,000.00
851486 El Cajon CA 92021 8.0000% 0.053% 7.9470% 1,500,000.00
851487 El Cajon CA 92020 8.0000% 0.053% 7.9470% 1,650,000.00
851488 San Diego CA 92115 8.0000% 0.053% 7.9470% 5,600,000.00
851493 Ontario CA 91761 7.0300% 0.053% 6.9770% 1,700,000.00
851494 Las Vegas NV 89102 7.3500% 0.053% 7.2970% 1,550,000.00
851498 Seattle WA 98101 7.4300% 0.053% 7.3770% 7,500,000.00
851499 Pleasanton CA 94588 7.4250% 0.053% 7.3720% 25,800,000.00
851500 Sacramento CA 95825 7.2400% 0.053% 7.1870% 12,000,000.00
851501 Canton MI 48187 7.1900% 0.053% 7.1370% 1,650,000.00
851503 Seattle WA 98105 7.3900% 0.053% 7.3370% 2,690,000.00
851507 Mankato MN 56001 7.2500% 0.053% 7.1970% 2,700,000.00
851508 Reno NV 89511 7.4000% 0.053% 7.3470% 2,050,000.00
851520 Mesa AZ 85206 7.6000% 0.053% 7.5470% 1,500,000.00
851525 Houston TX 77033 7.7300% 0.053% 7.6770% 2,900,000.00
851526 Colorado Springs CO 80910 7.3800% 0.053% 7.3270% 1,510,000.00
851528 San Ysidro CA 92173 7.4900% 0.053% 7.4370% 2,850,000.00
851530 Atlanta GA 30324 7.9350% 0.053% 7.8820% 1,950,000.00
851539 Granbury TX 76048 7.7000% 0.053% 7.6470% 1,500,000.00
851548 Henderson NC 27536 7.3900% 0.053% 7.3370% 4,745,000.00
851550 Dallas TX 75230 7.2150% 0.053% 7.1620% 23,000,000.00
851555 Las Vegas NV 85118 8.1350% 0.053% 8.0820% 1,792,500.00
851556 Aurora CO 80015 8.3400% 0.053% 8.2870% 1,600,000.00
851560 Snowmass Village CO 81615 7.6300% 0.053% 7.5770% 3,750,000.00
851563 Alexandria VA 22314 6.9200% 0.053% 6.8670% 22,400,000.00
851565 Cheyenne WY 82009 8.3400% 0.053% 8.2870% 1,900,000.00
851569 Washington DC 20009 7.8400% 0.053% 7.7870% 1,500,000.00
851577 Tallahassee FL 32304 7.1300% 0.053% 7.0770% 3,425,000.00
851578 Gainesville FL 32601 6.8700% 0.053% 6.8170% 7,050,000.00
851579 Lexington KY 40508 6.8600% 0.053% 6.8070% 5,525,000.00
851580 Oviedo FL 32765 7.0000% 0.053% 6.9470% 12,825,000.00
851581 Tallahassee FL 32304 6.9200% 0.053% 6.8670% 2,875,000.00
851582 Tallahassee FL 32304 6.8300% 0.053% 6.7770% 3,875,000.00
851586 Chandler AZ 85225 7.7900% 0.053% 7.7370% 3,100,000.00
851802 Phoenix AZ 85032 7.2500% 0.053% 7.1970% 10,000,000.00
851806 San Marcos TX 78666 6.8000% 0.053% 6.7470% 2,500,000.00
851808 Redwing MN 55066 6.8500% 0.053% 6.7970% 2,100,000.00
851809 Lubbock TX 79413 8.2000% 0.053% 8.1470% 2,000,000.00
<PAGE>
<CAPTION>
STATED
ORIGINAL REMAINING
TERM TO TERM TO ORIGINAL
LOAN MATURITY MATURITY AMORTIZATION
NUMBER CUT-OFF BALANCE (MOS.) (MOS.) MATURITY DATE ARD DATE ARD RATE STEP (BPS) (MOS.)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
850937 $6,806,976.18 180 171 10/01/13 180
850952 1,085,817.46 120 110 09/01/08 300
850995 5,328,185.10 120 108 07/01/08 300
851072 9,395,534.37 115 107 06/01/08 324
851087 18,489,569.26 240 228 07/01/18 240
851122 730,630.54 180 172 11/01/13 180
851129 1,073,369.88 120 108 07/01/08 240
851171 819,258.03 120 112 11/01/08 360
851174 989,492.15 120 109 08/01/08 324
851192 2,185,363.00 180 171 10/01/13 180
851195 1,134,631.12 120 110 09/01/08 300
851200 2,193,361.66 180 170 09/01/13 360
851203 1,091,846.54 180 170 09/01/13 360
851219 3,074,252.78 120 114 01/01/09 300
851236 1,587,079.69 180 172 11/01/13 240
851238 736,195.03 120 111 10/01/08 240
851242 1,559,997.96 120 111 10/01/08 240
851243 3,204,064.47 120 111 10/01/08 300
851244 2,740,504.35 120 110 09/01/08 300
851245 4,446,766.78 144 135 10/01/10 300
851246 2,978,978.79 180 171 10/01/13 360
851248 1,487,643.10 180 170 09/01/13 360
851250 1,139,960.78 180 170 09/01/13 360
851252 973,094.96 180 172 11/01/13 180
851256 984,344.13 180 172 11/01/13 180
851258 1,004,414.10 121 113 12/01/08 240
851260 1,276,190.41 120 111 10/01/08 240
851261 1,346,162.62 240 234 01/01/19 240
851263 991,224.29 120 112 11/01/08 300
851264 1,778,160.62 120 111 10/01/08 300
851265 1,106,267.39 120 110 09/01/08 300
851266 992,071.54 120 111 10/01/08 360
851267 2,689,667.36 120 111 10/01/08 360
851272 991,236.60 180 170 09/01/13 360
851273 967,839.34 120 110 09/01/08 180
851275 824,605.13 180 171 10/01/13 180
851278 1,767,356.47 120 112 11/01/08 240
851279 2,162,137.06 240 231 10/01/18 240
851280 2,162,137.06 240 231 10/01/18 240
851282 1,711,354.61 120 112 11/01/08 360
851283 1,486,726.55 120 110 09/01/08 360
851284 843,097.07 120 112 11/01/08 360
851285 2,083,954.25 120 112 11/01/08 360
851286 1,189,002.58 120 111 10/01/08 360
851288 944,067.75 120 112 11/01/08 300
851292 1,087,313.98 120 111 10/01/08 300
851296 912,420.25 120 111 10/01/08 360
851299 1,461,310.36 180 172 11/01/13 180
851303 5,564,199.62 120 112 11/01/08 360
851305 2,815,670.99 120 111 10/01/08 300
851306 5,095,939.98 120 111 10/01/08 360
851307 1,417,443.97 120 111 10/01/08 120
851308 940,789.45 180 171 10/01/13 180
851310 1,867,725.09 240 231 10/01/18 240
851312 2,005,849.44 120 114 01/01/09 240
851317 6,843,468.89 180 172 11/01/13 240
851319 648,439.86 120 112 11/01/08 240
851320 266,698.97 120 111 10/01/08 300
851322 1,326,858.89 120 112 11/01/08 144
851323 1,578,771.98 120 111 10/01/08 300
851327 3,838,135.44 180 172 11/01/13 240
851328 2,083,349.15 120 110 09/01/08 360
851329 1,560,650.39 120 111 10/01/08 300
851330 1,729,647.33 120 111 10/01/08 300
851333 2,483,643.45 120 113 12/01/08 360
851334 1,629,490.78 120 111 10/01/08 300
851335 1,277,230.11 120 112 11/01/08 240
851336 1,909,432.51 240 231 10/01/18 240
851337 2,925,221.71 204 195 10/01/15 204
851338 4,934,344.99 240 233 12/01/18 240
851340 2,491,582.80 240 233 12/01/18 240
851341 1,245,791.37 240 233 12/01/18 240
851342 2,601,969.33 240 233 12/01/18 240
851343 1,383,908.40 120 111 10/01/08 300
851344 1,484,141.55 120 111 10/01/08 300
851347 3,177,304.28 120 112 11/01/08 360
851348 1,878,417.97 180 171 10/01/13 300
851349 1,537,634.47 180 173 12/01/13 300
851351 1,061,746.37 120 113 12/01/08 240
851352 1,981,395.28 120 113 12/01/08 300
851353 1,654,350.95 120 111 10/01/08 300
851354 4,396,742.07 144 139 02/01/11 144
851355 1,214,816.67 120 113 12/01/08 300
851356 1,428,170.72 240 233 12/01/18 240
851357 633,365.66 180 172 11/01/13 180
851358 1,092,025.75 120 112 11/01/08 360
851359 983,218.60 240 232 11/01/18 240
851360 791,373.71 120 112 11/01/08 300
851361 1,744,761.70 120 113 12/01/08 300
851362 1,022,289.93 120 112 11/01/08 360
851363 1,049,008.05 180 174 01/01/14 180
851364 1,770,249.48 241 233 12/01/18 240
851365 2,881,844.00 120 113 12/01/08 360
851367 9,858,208.85 180 171 10/01/13 300
851369 2,918,778.65 180 172 11/01/13 180
851370 5,076,750.20 120 116 03/01/09 300
851371 2,373,909.62 120 112 11/01/08 300
851372 1,354,511.50 240 232 11/01/18 240
851373 1,391,688.87 120 113 12/01/08 360
851374 743,912.12 120 111 10/01/08 360
851377 1,457,618.33 180 172 11/01/13 180
851378 2,923,426.97 180 172 11/01/13 180
851381 2,724,100.70 180 172 11/01/13 180
851382 805,828.81 204 197 12/01/15 204
851383 1,684,625.77 120 113 12/01/08 300
851384 6,164,014.80 240 233 12/01/18 240
851385 3,477,381.44 240 233 12/01/18 240
851386 3,012,103.74 240 233 12/01/18 240
851387 2,674,464.98 120 113 12/01/08 300
851388 3,764,227.21 120 113 12/01/08 300
851389 1,168,750.52 180 172 11/01/13 180
851390 1,665,130.41 180 174 01/01/14 180
851391 1,376,935.83 180 173 12/01/13 180
851392 1,484,269.12 180 172 11/01/13 300
851393 1,957,971.47 120 113 12/01/08 360
851394 1,635,431.82 120 113 12/01/08 360
851395 2,124,448.73 120 113 12/01/08 360
851396 1,565,838.96 120 113 12/01/08 360
851398 1,357,060.46 120 113 12/01/08 360
851399 3,950,729.19 120 113 12/01/08 360
851400 7,155,524.95 120 113 12/01/08 360
851401 1,872,862.60 121 114 01/01/09 240
851402 675,272.51 120 114 01/01/09 120
851403 5,380,359.10 120 116 03/01/09 300
851404 5,452,621.95 120 114 01/01/09 300
851405 1,482,538.69 240 233 12/01/18 240
851406 3,585,948.95 120 116 03/01/09 300
851408 2,381,962.54 120 114 01/01/09 300
851409 2,021,765.09 180 173 12/01/13 300
851411 3,766,033.03 180 173 12/01/13 300
851415 3,203,788.82 120 113 12/01/08 300
851416 1,634,032.04 120 113 12/01/08 300
851418 1,288,668.36 84 77 12/01/05 300
851419 5,609,243.55 240 234 01/01/19 300
851420 2,593,579.53 120 112 11/01/08 300
851421 1,089,918.77 120 113 12/01/08 300
851423 2,293,296.98 120 117 04/01/09 300
851424 2,484,805.93 120 113 12/01/08 360
851425 4,956,269.84 120 113 12/01/08 300
851426 2,207,862.96 180 173 12/01/13 360
851428 3,860,431.79 120 113 12/01/08 300
851429 1,043,374.91 120 114 01/01/09 300
851430 2,569,286.09 228 222 01/01/18 228
851433 4,254,978.73 120 112 11/01/08 300
851434 1,388,480.52 180 173 12/01/13 300
851435 4,775,350.77 120 114 01/01/09 360
851438 4,748,485.77 120 114 01/01/09 300
851439 11,417,571.21 120 113 12/01/08 324
851441 1,542,715.20 120 114 01/01/09 120
851442 987,687.03 240 233 12/01/18 240
851443 8,606,059.60 236 234 01/01/19 235
851444 6,731,734.51 240 234 01/01/19 240
851445 10,394,590.07 240 234 01/01/19 240
851446 2,969,882.91 240 234 01/01/19 240
851447 2,853,464.12 116 114 01/01/09 116
851449 1,602,639.95 120 116 03/01/09 300
851450 2,306,808.42 120 113 12/01/08 360
851451 778,317.24 120 113 12/01/08 300
851452 1,982,742.08 120 113 12/01/08 300
851453 1,493,289.81 120 114 01/01/09 360
851454 7,034,252.56 120 115 02/01/09 300
851455 6,550,560.16 84 78 01/01/06 300
851456 1,392,401.96 180 173 12/01/13 180
851457 1,191,513.63 120 114 01/01/09 300
851459 4,961,681.72 120 114 01/01/09 300
851460 8,607,643.95 120 114 01/01/09 360
851463 1,636,317.62 120 114 01/01/09 300
851464 2,481,303.32 120 114 01/01/09 300
851465 10,481,120.24 120 115 02/01/09 300
851467 2,621,777.99 240 234 01/01/19 240
851468 5,460,716.31 120 114 01/01/09 300
851469 4,960,992.42 120 114 01/01/09 300
851472 2,435,143.99 180 175 02/01/14 180
851476 19,356,533.81 120 114 01/01/09 300
851477 1,489,036.34 120 114 01/01/09 300
851478 1,990,994.19 120 113 12/01/08 360
851479 2,903,970.28 180 175 02/01/14 180
851481 2,453,350.18 180 174 01/01/14 180
851484 1,738,538.94 120 115 02/01/09 300
851485 4,362,415.50 120 113 12/01/08 300
851486 1,491,997.27 120 115 02/01/09 300
851487 1,643,732.88 120 116 03/01/09 300
851488 5,570,123.09 120 115 02/01/09 300
851493 1,689,433.76 120 115 02/01/09 300
851494 1,544,537.25 120 117 04/01/09 300
851498 7,467,155.91 84 78 01/01/06 360
851499 25,701,453.22 84 79 02/01/06 360
851500 11,945,284.50 84 78 01/01/06 360
851501 1,644,366.44 120 117 04/01/09 300
851503 2,684,294.63 120 118 05/01/09 300
851507 2,649,800.12 180 174 01/01/14 180
851508 2,037,967.06 120 115 02/01/09 300
851520 1,495,238.42 120 117 04/01/09 300
851525 2,874,709.76 180 177 04/01/14 180
851526 1,506,791.32 120 118 05/01/09 300
851528 2,838,061.30 120 116 03/01/09 300
851530 1,944,174.47 120 117 04/01/09 300
851539 1,495,019.93 240 238 05/01/19 240
851548 4,734,936.06 120 118 05/01/09 300
851550 22,921,816.40 120 117 04/01/09 300
851555 1,790,656.17 120 119 06/01/09 300
851556 1,598,998.35 120 119 06/01/09 360
851560 3,747,288.59 120 119 06/01/09 360
851563 22,366,917.31 120 118 05/01/09 360
851565 1,898,110.00 120 119 06/01/09 300
851569 1,500,000.00 120 120 07/01/09 300
851577 3,425,000.00 120 120 07/01/09 300
851578 7,050,000.00 120 120 07/01/09 300
851579 5,525,000.00 120 120 07/01/09 300
851580 12,825,000.00 120 120 07/01/09 300
851581 2,875,000.00 120 120 07/01/09 300
851582 3,875,000.00 120 120 07/01/09 300
851586 3,100,000.00 120 120 07/01/09 360
851802 9,926,042.95 120 110 09/01/08 360
851806 2,451,004.84 120 110 09/01/08 240
851808 2,032,344.84 120 110 09/01/08 180
851809 1,990,373.63 120 112 11/01/08 360
<PAGE>
<CAPTION>
DEBT
SERVICE
LOAN INTEREST ONLY FIRST PAYMENT COVERAGE INTEREST
NUMBER MONTHS DATE MONTHLY P&I APPRAISED VALUE CUT-OFF LTV RATIO ACCRUAL METHOD
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C> <C>
850937 0 11/01/98 $64,335 $10,000,000 68.07% 1.04x Actual/360
850952 0 10/01/98 7,503 1,500,000 72.39% 1.53 Actual/360
850995 0 08/01/98 39,572 8,100,000 65.78% 1.43 Actual/360
851072 0 12/01/98 68,371 13,200,000 71.15% 1.41 Actual/360
851087 0 08/01/98 150,758 26,550,000 69.64% 1.30 Actual/360
851122 0 12/01/98 6,729 1,380,000 52.94% 1.87 30/360
851129 0 08/01/98 8,430 1,775,000 60.47% 1.68 30/360
851171 0 12/01/98 5,231 1,150,000 71.24% 1.67 Actual/360
851174 0 09/01/98 7,042 1,400,000 70.68% 1.46 Actual/360
851192 0 11/01/98 20,400 4,505,000 48.51% 1.69 30/360
851195 0 10/01/98 7,877 14,000,000 8.10% 16.27 30/360
851200 0 10/01/98 14,956 3,000,000 73.11% 1.24 Actual/360
851203 0 10/01/98 7,496 1,750,000 62.39% 1.29 Actual/360
851219 0 02/01/99 20,392 5,200,000 59.12% 1.62 Actual/360
851236 0 12/01/98 12,261 2,150,000 73.82% 1.45 Actual/360
851238 0 11/01/98 5,552 1,710,000 43.05% 2.77 Actual/360
851242 0 11/01/98 11,585 2,900,000 53.79% 1.21 Actual/360
851243 0 11/01/98 21,027 4,740,000 67.60% 1.74 Actual/360
851244 0 10/01/98 19,835 4,550,000 60.23% 1.50 30/360
851245 0 11/01/98 31,077 6,800,000 65.39% 1.57 30/360
851246 0 11/01/98 19,889 4,950,000 60.18% 1.69 Actual/360
851248 0 10/01/98 10,091 2,800,000 53.13% 1.47 30/360
851250 0 10/01/98 7,505 2,380,000 47.90% 2.17 30/360
851252 0 12/01/98 8,700 1,750,000 55.61% 1.41 30/360
851256 0 12/01/98 9,070 1,610,000 61.14% 1.49 Actual/360
851258 0 12/01/98 7,908 1,430,000 70.24% 1.26 Actual/360
851260 0 11/01/98 9,654 2,050,000 62.25% 1.36 Actual/360
851261 0 02/01/99 11,350 2,000,000 67.31% 1.60 Actual/360
851263 0 12/01/98 7,442 1,460,000 67.89% 1.29 Actual/360
851264 0 11/01/98 12,244 2,760,000 64.43% 1.66 30/360
851265 0 10/01/98 7,852 1,620,000 68.29% 1.38 Actual/360
851266 0 11/01/98 6,255 1,375,000 72.15% 1.51 Actual/360
851267 0 11/01/98 17,406 3,530,000 76.19% 1.61 Actual/360
851272 0 10/01/98 6,513 4,100,000 24.18% 4.01 30/360
851273 0 10/01/98 8,916 1,880,000 51.48% 1.43 Actual/360
851275 0 11/01/98 7,484 1,290,000 63.92% 1.29 30/360
851278 0 12/01/98 12,638 4,640,000 38.09% 2.56 30/360
851279 0 11/01/98 17,362 2,850,000 75.86% 1.21 30/360
851280 0 11/01/98 17,362 2,750,000 78.62% 1.21 30/360
851282 0 12/01/98 10,243 4,750,000 36.03% 3.37 Actual/360
851283 0 10/01/98 9,407 2,900,000 51.27% 2.19 Actual/360
851284 0 12/01/98 4,977 2,100,000 40.15% 3.10 Actual/360
851285 0 12/01/98 12,699 3,350,000 62.21% 2.56 Actual/360
851286 0 11/01/98 6,972 2,950,000 40.31% 3.45 Actual/360
851288 0 12/01/98 6,141 1,350,000 69.93% 1.74 Actual/360
851292 0 11/01/98 7,496 1,650,000 65.90% 1.59 Actual/360
851296 0 11/01/98 5,647 1,250,000 72.99% 1.44 Actual/360
851299 0 12/01/98 13,324 2,395,000 61.02% 1.39 Actual/360
851303 0 12/01/98 36,994 7,700,000 72.26% 1.40 Actual/360
851305 0 11/01/98 18,959 4,300,000 65.48% 1.59 Actual/360
851306 0 11/01/98 31,949 7,200,000 70.78% 1.60 30/360
851307 0 11/01/98 16,918 5,335,000 26.57% 2.38 30/360
851308 0 11/01/98 8,375 3,460,000 27.19% 2.90 Actual/360
851310 0 11/01/98 15,121 2,540,000 73.53% 1.64 30/360
851312 0 02/01/99 15,399 2,900,000 69.17% 1.46 Actual/360
851317 0 12/01/98 53,779 10,800,000 63.37% 1.62 Actual/360
851319 0 12/01/98 4,687 1,200,000 54.04% 1.86 Actual/360
851320 0 11/01/98 1,828 470,000 56.74% 1.44 30/360
851322 0 12/01/98 13,438 2,300,000 57.69% 1.72 Actual/360
851323 0 11/01/98 10,066 3,050,000 51.76% 2.43 Actual/360
851327 0 12/01/98 29,538 5,200,000 73.81% 1.27 Actual/360
851328 0 10/01/98 13,880 3,570,000 58.36% 1.78 Actual/360
851329 0 11/01/98 10,413 2,450,000 63.70% 1.61 Actual/360
851330 0 11/01/98 11,871 2,900,000 59.64% 1.96 Actual/360
851333 0 01/01/99 15,215 9,250,000 26.85% 3.96 Actual/360
851334 0 11/01/98 10,783 2,300,000 70.85% 1.75 Actual/360
851335 0 12/01/98 9,231 2,350,000 54.35% 1.86 Actual/360
851336 0 11/01/98 15,095 2,590,000 73.72% 1.23 Actual/360
851337 0 11/01/98 24,232 6,010,000 48.67% 1.79 30/360
851338 0 01/01/99 39,792 7,750,000 63.67% 1.25 30/360
851340 0 01/01/99 18,937 5,250,000 47.46% 1.82 30/360
851341 0 01/01/99 9,469 2,490,000 50.03% 1.91 30/360
851342 0 01/01/99 19,777 5,070,000 51.32% 1.66 30/360
851343 0 11/01/98 9,558 2,225,000 62.20% 1.48 Actual/360
851344 0 11/01/98 10,707 2,800,000 53.01% 1.88 Actual/360
851347 0 12/01/98 20,100 4,425,000 71.80% 1.65 Actual/360
851348 0 11/01/98 13,055 2,750,000 68.31% 1.46 Actual/360
851349 0 01/01/99 11,253 2,075,000 74.10% 1.43 Actual/360
851351 0 01/01/99 8,713 1,580,000 67.20% 1.30 Actual/360
851352 0 01/01/99 13,367 3,200,000 61.92% 2.01 Actual/360
851353 0 11/01/98 10,998 2,800,000 59.08% 1.73 Actual/360
851354 0 03/01/99 45,584 10,500,000 41.87% 1.66 30/360
851355 0 01/01/99 8,705 2,020,000 60.14% 1.48 Actual/360
851356 0 01/01/99 11,358 2,050,000 69.67% 1.29 Actual/360
851357 0 12/01/98 5,806 1,575,000 40.21% 2.15 Actual/360
851358 0 12/01/98 6,834 1,500,000 72.80% 1.78 Actual/360
851359 0 12/01/98 7,409 3,300,000 29.79% 3.06 30/360
851360 0 12/01/98 5,327 1,155,000 68.52% 1.57 Actual/360
851361 0 01/01/99 12,238 2,800,000 62.31% 1.62 Actual/360
851362 0 12/01/98 6,295 2,200,000 46.47% 2.10 Actual/360
851363 0 02/01/99 9,469 1,785,000 58.77% 1.88 30/360
851364 0 12/01/98 13,473 3,380,000 52.37% 1.62 30/360
851365 0 01/01/99 18,045 4,160,000 69.28% 1.79 Actual/360
851367 0 11/01/98 67,414 13,300,000 74.12% 1.41 Actual/360
851369 0 12/01/98 25,723 5,425,000 53.80% 1.49 Actual/360
851370 0 04/01/99 37,888 6,800,000 74.66% 1.38 30/360
851371 0 12/01/98 15,906 4,000,000 59.35% 1.47 Actual/360
851372 0 12/01/98 10,826 2,150,000 63.00% 1.58 Actual/360
851373 0 01/01/99 8,941 2,700,000 51.54% 2.09 Actual/360
851374 0 11/01/98 4,637 1,140,000 65.26% 1.83 Actual/360
851377 0 12/01/98 12,456 2,800,000 52.06% 1.64 Actual/360
851378 0 12/01/98 26,848 4,800,000 60.90% 1.19 Actual/360
851381 0 12/01/98 24,222 5,230,000 52.09% 1.56 30/360
851382 0 01/01/99 7,037 1,270,000 63.45% 1.32 Actual/360
851383 0 01/01/99 11,542 3,200,000 52.64% 1.61 Actual/360
851384 0 01/01/99 47,411 11,200,000 55.04% 1.77 Actual/360
851385 0 01/01/99 27,044 5,500,000 63.23% 1.47 Actual/360
851386 0 01/01/99 24,608 4,100,000 73.47% 1.43 Actual/360
851387 0 01/01/99 18,281 3,600,000 74.29% 1.70 30/360
851388 0 01/01/99 25,801 6,000,000 62.74% 1.37 30/360
851389 0 12/01/98 10,586 2,400,000 48.70% 1.76 Actual/360
851390 0 02/01/99 14,548 3,100,000 53.71% 1.51 30/360
851391 0 01/01/99 11,650 7,480,000 18.41% 3.42 Actual/360
851392 0 12/01/98 10,147 2,450,000 60.58% 1.85 Actual/360
851393 0 01/01/99 12,804 3,000,000 65.27% 1.85 30/360
851394 0 01/01/99 10,966 2,270,000 72.05% 1.53 30/360
851395 0 01/01/99 13,892 2,850,000 74.54% 1.72 30/360
851396 0 01/01/99 10,500 2,275,000 68.83% 1.53 30/360
851398 0 01/01/99 9,100 1,820,000 74.56% 1.34 30/360
851399 0 01/01/99 25,835 5,300,000 74.54% 1.63 30/360
851400 0 01/01/99 46,508 9,600,000 74.54% 1.46 30/360
851401 0 01/01/99 14,077 3,700,000 50.62% 1.69 Actual/360
851402 0 02/01/99 8,063 2,000,000 33.76% 2.06 Actual/360
851403 0 04/01/99 42,468 7,515,000 71.59% 1.35 Actual/360
851404 0 02/01/99 35,403 8,400,000 64.91% 1.68 Actual/360
851405 0 01/01/99 12,565 2,700,000 54.91% 1.67 Actual/360
851406 0 04/01/99 27,452 5,000,000 71.72% 1.39 Actual/360
851408 0 02/01/99 16,963 7,820,000 30.46% 2.98 30/360
851409 0 01/01/99 13,940 4,700,000 43.02% 2.61 Actual/360
851411 0 01/01/99 25,967 6,283,191 59.94% 2.36 Actual/360
851415 0 01/01/99 21,641 4,480,000 71.51% 1.54 30/360
851416 0 01/01/99 11,018 2,930,000 55.77% 1.83 30/360
851418 0 01/01/99 9,006 2,200,000 58.58% 1.67 Actual/360
851419 0 02/01/99 40,258 7,965,000 70.42% 1.43 Actual/360
851420 0 12/01/98 16,435 3,700,000 70.10% 1.63 Actual/360
851421 0 01/01/99 7,414 3,060,000 35.62% 2.75 Actual/360
851423 0 05/01/99 17,859 3,400,000 67.45% 1.28 Actual/360
851424 0 01/01/99 15,785 9,100,000 27.31% 6.14 Actual/360
851425 0 01/01/99 34,577 8,100,000 61.19% 1.86 Actual/360
851426 0 01/01/99 14,740 3,200,000 69.00% 1.66 Actual/360
851428 0 01/01/99 25,295 6,810,000 56.69% 2.15 30/360
851429 0 02/01/99 8,028 1,440,000 72.46% 1.53 Actual/360
851430 0 02/01/99 21,552 3,500,000 73.41% 1.16 Actual/360
851433 0 12/01/98 29,115 7,000,000 60.79% 1.54 Actual/360
851434 0 01/01/99 10,002 3,000,000 46.28% 1.83 Actual/360
851435 0 02/01/99 30,878 6,750,000 70.75% 1.57 Actual/360
851438 0 02/01/99 31,615 6,840,000 69.42% 1.59 Actual/360
851439 0 01/01/99 78,425 18,000,000 63.43% 1.54 Actual/360
851441 0 02/01/99 18,225 2,900,000 53.20% 1.34 Actual/360
851442 0 01/01/99 8,111 1,360,000 72.62% 1.35 Actual/360
851443 0 06/01/99 74,229 12,500,000 68.85% 1.40 30/360
851444 0 02/01/99 57,962 11,500,000 58.54% 1.40 30/360
851445 0 02/01/99 89,500 16,500,000 63.00% 1.40 30/360
851446 0 02/01/99 25,571 5,900,000 50.34% 1.40 30/360
851447 0 06/01/99 35,633 6,400,000 44.59% 1.40 30/360
851449 0 04/01/99 11,400 2,150,000 74.54% 1.48 Actual/360
851450 0 01/01/99 15,125 2,950,000 78.20% 1.53 Actual/360
851451 0 01/01/99 5,508 1,500,000 51.89% 1.70 Actual/360
851452 0 01/01/99 13,932 3,093,000 64.10% 1.45 Actual/360
851453 0 02/01/99 10,314 2,250,000 66.37% 1.46 Actual/360
851454 0 03/01/99 52,376 9,850,000 71.41% 1.41 Actual/360
851455 0 02/01/99 46,060 9,100,000 71.98% 1.35 Actual/360
851456 0 01/01/99 12,530 2,065,000 67.43% 1.15 Actual/360
851457 0 02/01/99 8,643 1,850,000 64.41% 1.81 Actual/360
851459 0 02/01/99 34,451 7,180,000 69.10% 1.67 Actual/360
851460 0 02/01/99 56,969 13,600,000 63.29% 1.77 Actual/360
851463 0 02/01/99 10,864 2,200,000 74.38% 1.62 Actual/360
851464 0 02/01/99 17,463 3,725,000 66.61% 1.73 Actual/360
851465 0 03/01/99 72,691 16,500,000 63.52% 1.76 Actual/360
851467 0 02/01/99 21,527 3,500,000 74.91% 1.28 Actual/360
851468 0 02/01/99 39,401 8,800,000 62.05% 1.53 Actual/360
851469 0 02/01/99 34,105 11,000,000 45.10% 2.09 Actual/360
851472 0 03/01/99 22,108 5,960,000 40.86% 1.35 Actual/360
851476 0 02/01/99 137,449 34,100,000 56.76% 1.89 Actual/360
851477 0 02/01/99 10,611 3,500,000 42.54% 1.99 Actual/360
851478 0 01/01/99 14,453 3,211,000 62.01% 1.37 Actual/360
851479 0 03/01/99 26,963 5,400,000 53.78% 1.23 Actual/360
851481 0 02/01/99 22,949 4,890,000 50.17% 1.81 30/360
851484 0 03/01/99 12,036 3,900,000 44.58% 1.84 Actual/360
851485 0 01/01/99 30,818 8,250,000 52.88% 1.66 Actual/360
851486 0 03/01/99 11,577 2,100,000 71.05% 1.32 Actual/360
851487 0 04/01/99 12,735 2,300,000 71.47% 1.34 Actual/360
851488 0 03/01/99 43,222 7,750,000 71.87% 1.34 Actual/360
851493 0 03/01/99 12,048 2,950,000 57.27% 1.63 30/360
851494 0 05/01/99 11,304 2,700,000 57.21% 2.13 30/360
851498 0 02/01/99 52,082 13,200,000 56.57% 1.60 Actual/360
851499 0 03/01/99 179,074 42,850,000 59.98% 1.37 Actual/360
851500 0 02/01/99 81,780 21,000,000 56.88% 1.59 Actual/360
851501 0 05/01/99 11,863 2,900,000 56.77% 1.85 Actual/360
851503 0 06/01/99 19,687 3,800,000 70.64% 1.33 Actual/360
851507 0 02/01/99 24,642 4,000,000 66.25% 1.44 Actual/360
851508 0 03/01/99 15,016 3,100,000 65.74% 1.33 Actual/360
851520 0 05/01/99 11,183 3,200,000 46.73% 1.75 Actual/360
851525 0 05/01/99 27,264 4,970,000 58.02% 1.25 Actual/360
851526 0 06/01/99 11,041 2,670,000 56.43% 1.33 Actual/360
851528 0 04/01/99 21,043 3,910,000 72.58% 1.37 Actual/360
851530 0 05/01/99 14,967 3,070,000 63.33% 1.43 Actual/360
851539 0 06/01/99 12,268 1,980,000 75.51% 1.45 Actual/360
851548 0 06/01/99 34,726 7,300,000 64.92% 1.46 Actual/360
851550 0 05/01/99 165,727 36,000,000 63.67% 1.55 Actual/360
851555 0 07/01/99 13,995 2,390,000 74.92% 1.37 Actual/360
851556 0 07/01/99 12,122 2,300,000 69.52% 1.37 Actual/360
851560 0 07/01/99 26,555 9,200,000 40.73% 2.13 Actual/360
851563 0 06/01/99 147,826 33,400,000 66.97% 1.43 Actual/360
851565 0 07/01/99 15,095 2,600,000 73.00% 1.19 Actual/360
851569 0 08/01/99 11,419 2,000,000 75.00% 1.53 Actual/360
851577 0 08/01/99 24,492 4,700,000 72.87% 1.53 Actual/360
851578 0 08/01/99 49,245 11,300,000 62.39% 1.86 Actual/360
851579 0 08/01/99 38,558 9,700,000 56.96% 1.87 Actual/360
851580 0 08/01/99 90,644 19,800,000 64.77% 1.61 Actual/360
851581 0 08/01/99 20,173 4,600,000 62.50% 1.73 Actual/360
851582 0 08/01/99 26,969 7,200,000 53.82% 1.98 Actual/360
851586 0 08/01/99 22,295 4,385,000 70.70% 1.36 Actual/360
851802 0 10/01/98 68,218 13,750,000 72.19% 1.30 Actual/360
851806 0 10/01/98 19,083 3,760,000 65.19% 1.30 Actual/360
851808 0 10/01/98 18,700 4,100,000 49.57% 1.51 Actual/360
851809 0 12/01/98 14,955 2,700,000 73.72% 1.21 Actual/360
<PAGE>
<CAPTION>
REAL EFFECTIVE FREE PREPAY
LOAN PROPERTY LOCKOUT PERIOD WINDOW
NUMBER INTEREST LIEN POSITION CALL PROTECTION (MOS.) (MOS.)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
850937 Fee First > 1% or YM 36 6
850952 Fee First Defeasance 114 6
850995 Fee First Defeasance 114 6
851072 Fee First Defeasance 109 6
851087 Fee First Defeasance 234 6
851122 Leasehold First > 1% or YM 84 6
851129 Fee First Defeasance 114 6
851171 Fee First Defeasance 114 6
851174 Fee First Defeasance 114 6
851192 Fee First > 1% or YM / Declining Penalty 60 6
851195 Fee First Defeasance 114 6
851200 Fee First Defeasance / > 1% or YM 36 6
851203 Fee First Defeasance / > 1% or YM 36 6
851219 Fee First Defeasance / > 1% or YM 36 6
851236 Fee First Defeasance 174 6
851238 Fee First Defeasance 114 6
851242 Fee First Defeasance 114 6
851243 Fee First Defeasance 114 6
851244 Fee First Declining Penalty 12
851245 Fee First Declining Penalty 36
851246 Fee First Defeasance 174 6
851248 Fee First Defeasance / > 1% or YM 36 6
851250 Fee First Defeasance / > 1% or YM 36 6
851252 Fee First Defeasance 174 6
851256 Fee First Defeasance 174 6
851258 Fee First Defeasance 115 6
851260 Fee First Defeasance 114 6
851261 Fee First Defeasance / > 1% or YM 60 6
851263 Fee First Defeasance 114 6
851264 Fee First Defeasance 114 6
851265 Fee First Defeasance / > 1% or YM 36 6
851266 Fee First Defeasance 114 6
851267 Fee First Defeasance 114 6
851272 Fee First Defeasance / > 1% or YM 36 6
851273 Fee First Defeasance / > 1% or YM 36 6
851275 Fee First Defeasance 174 6
851278 Fee First Defeasance 114 6
851279 Fee First Defeasance 234 6
851280 Fee First Defeasance 234 6
851282 Fee First Defeasance / > 1% or YM 24 6
851283 Fee First Defeasance / > 1% or YM 35 6
851284 Fee First Defeasance / > 1% or YM 33 6
851285 Fee First Defeasance / > 1% or YM 24 6
851286 Fee First Defeasance / > 1% or YM 34 6
851288 Fee First Defeasance 114 6
851292 Fee First Defeasance / > 1% or YM 36 6
851296 Fee First > 1% or YM 36 6
851299 Fee First Defeasance 174 6
851303 Fee First Defeasance 114 6
851305 Fee First Defeasance / > 1% or YM 36 6
851306 Fee First Defeasance 114 6
851307 Fee First Declining Penalty 36 6
851308 Fee First Defeasance / > 1% or YM 36 6
851310 Fee First Defeasance 234 6
851312 Fee First Defeasance 114 6
851317 Leasehold First Defeasance 174 6
851319 Fee First Defeasance / > 1% or YM 36 6
851320 Fee First Defeasance 114 6
851322 Fee First Defeasance / > 1% or YM 36 6
851323 Fee First Defeasance / > 1% or YM 37 6
851327 Fee First Defeasance 174 6
851328 Fee First Defeasance / > 1% or YM 36 6
851329 Fee First Defeasance 114 6
851330 Fee First Defeasance / > 1% or YM 36 6
851333 Fee First Declining Penalty 12
851334 Fee First Defeasance 114 6
851335 Fee First Defeasance / > 1% or YM 36 6
851336 Fee First Defeasance 234 6
851337 Fee First Defeasance 198 6
851338 Fee First Defeasance 234 6
851340 Fee First Defeasance 234 6
851341 Fee First Defeasance 234 6
851342 Fee First Defeasance 234 6
851343 Fee First Defeasance 114 6
851344 Fee First Defeasance / > 1% or YM 36 6
851347 Fee First Defeasance 114 6
851348 Fee First Defeasance 174 6
851349 Fee First Defeasance / > 1% or YM 59 6
851351 Fee First Defeasance 114 6
851352 Fee First Defeasance 114 6
851353 Fee First Defeasance / > 1% or YM 36 6
851354 Leasehold First Defeasance 138 6
851355 Fee First Defeasance / > 1% or YM 36 6
851356 Fee First Defeasance 234 6
851357 Fee First Defeasance 174 6
851358 Fee First Defeasance / > 1% or YM 36 6
851359 Fee First Defeasance / > 1% or YM 36 6
851360 Fee First Defeasance 114 6
851361 Fee First Defeasance 114 6
851362 Fee First Defeasance / > 1% or YM 36 6
851363 Fee First Defeasance 174 6
851364 Fee First Defeasance 235 6
851365 Fee First Defeasance 114 6
851367 Fee First Defeasance 174 6
851369 Fee First Defeasance 174 6
851370 Fee First Defeasance 114 6
851371 Fee First Defeasance / > 1% or YM 36 6
851372 Fee First Defeasance / > 1% or YM 48 6
851373 Fee First Defeasance / > 1% or YM 36 6
851374 Fee First Defeasance / > 1% or YM 36 6
851377 Fee First Defeasance / > 1% or YM 36 6
851378 Fee First Defeasance 174 6
851381 Fee First Defeasance 174 6
851382 Fee First Defeasance / > 1% or YM 60 6
851383 Fee First > 1% or YM 36 6
851384 Fee First Defeasance 234 6
851385 Fee First Defeasance 234 6
851386 Fee First Defeasance 234 6
851387 Fee First Defeasance 114 6
851388 Fee First Defeasance 114 6
851389 Fee First Defeasance / > 1% or YM 60 6
851390 Fee First Defeasance 174 6
851391 Fee First Defeasance / > 1% or YM 60 6
851392 Fee First Defeasance 174 6
851393 Fee First Defeasance 114 6
851394 Fee First Defeasance 114 6
851395 Fee First Defeasance 114 6
851396 Fee First Defeasance 114 6
851398 Fee First Defeasance 114 6
851399 Fee First Defeasance 114 6
851400 Fee First Defeasance 114 6
851401 Fee First Defeasance 115 6
851402 Fee First Defeasance 114 6
851403 Leasehold First Defeasance 114 6
851404 Fee First Defeasance 114 6
851405 Fee First Defeasance 234 6
851406 Leasehold First Defeasance 114 6
851408 Fee First Defeasance 114 6
851409 Fee First Defeasance 174 6
851411 Fee First Defeasance 174 6
851415 Fee First Defeasance 114 6
851416 Fee First Defeasance 114 6
851418 Fee First Defeasance / > 1% or YM 37 6
851419 Fee First Defeasance 234 6
851420 Fee First Defeasance / > 1% or YM 36 6
851421 Fee First Defeasance / > 1% or YM 36 6
851423 Fee First Defeasance 114 6
851424 Fee First Defeasance 114 6
851425 Fee First Declining Penalty 36 6
851426 Fee First Defeasance 174 6
851428 Fee First Defeasance 114 6
851429 Fee First Defeasance / > 1% or YM 36 6
851430 Fee First Defeasance 222 6
851433 Fee First Defeasance 114 6
851434 Fee First Defeasance 174 6
851435 Fee First Defeasance / > 1% or YM 36 6
851438 Fee First Defeasance 114 6
851439 Fee First Defeasance 114 6
851441 Fee First Defeasance / > 1% or YM 36 6
851442 Fee First Defeasance / > 1% or YM 84 6
851443 Fee First Defeasance 230 6
851444 Fee First Defeasance 234 6
851445 Fee First Defeasance 234 6
851446 Fee First Defeasance 234 6
851447 Fee First Defeasance 110 6
851449 Fee First Defeasance 114 6
851450 Fee First Defeasance 114 6
851451 Fee First Defeasance 114 6
851452 Fee First Defeasance 114 6
851453 Fee First Defeasance 114 6
851454 Fee First Defeasance 114 6
851455 Fee First Defeasance 78 6
851456 Fee First Defeasance / > 1% or YM 36 6
851457 Fee First Defeasance / > 1% or YM 36 6
851459 Fee First Defeasance / > 1% or YM 36 6
851460 Fee First Defeasance 114 6
851463 Fee First Defeasance 114 6
851464 Fee First Defeasance 114 6
851465 Fee First Defeasance 114 6
851467 Fee First Defeasance 234 6
851468 Fee First Defeasance 114 6
851469 Fee First Defeasance 114 6
851472 Fee First Defeasance 174 6
851476 Fee First Defeasance 114 6
851477 Fee First Defeasance / > 1% or YM 36 6
851478 Fee First Defeasance / > 1% or YM 36 6
851479 Fee First Defeasance / > 1% or YM 36 6
851481 Fee First Defeasance 174 6
851484 Fee First Defeasance / > 1% or YM 36 6
851485 Fee First Defeasance 116 4
851486 Fee First Defeasance 114 6
851487 Fee First Defeasance 114 6
851488 Fee First Defeasance 114 6
851493 Fee First Defeasance 114 6
851494 Fee First Defeasance 114 6
851498 Leasehold First Defeasance 78 6
851499 Fee First Defeasance 78 6
851500 Fee First Defeasance 78 6
851501 Fee First Defeasance 114 6
851503 Fee First Defeasance 114 6
851507 Fee First Defeasance 174 6
851508 Fee First > 1% or YM 61 7
851520 Fee First Defeasance / > 1% or YM 36 6
851525 Fee First Defeasance / > 1% or YM 60 6
851526 Fee First Defeasance 114 6
851528 Fee First Defeasance 114 6
851530 Fee First Defeasance / > 1% or YM 36 6
851539 Fee First Defeasance 234 6
851548 Fee First Defeasance 114 6
851550 Fee First Defeasance 114 6
851555 Fee First Defeasance / > 1% or YM 35 6
851556 Fee First Defeasance 114 6
851560 Fee First Defeasance 114 6
851563 Fee First Defeasance 114 6
851565 Fee First Defeasance 114 6
851569 Fee First Defeasance / YM 35 6
851577 Fee First Defeasance 117 3
851578 Fee First Defeasance 117 3
851579 Fee First Defeasance 117 3
851580 Fee First Defeasance 117 3
851581 Fee First Defeasance 117 3
851582 Fee First Defeasance 117 3
851586 Fee First Defeasance 117 3
851802 Fee First > 1% or YM 49 3
851806 Fee First Defeasance 117 3
851808 Fee First Defeasance 116 4
851809 Fee First Defeasance 116 4
</TABLE>
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
(BEAR STEARNS LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of July 1, 1999,
between Bear, Stearns Funding Inc. (the "Seller"), and Bear Stearns Commercial
Mortgage Securities Inc. (the "Purchaser").
The Seller agrees to sell and the Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. The Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of July 1, 1999 (the "Cut-Off Date"),
between the Purchaser, as depositor, Wells Fargo Bank, National Association, as
servicer (the "Servicer"), GMAC Commercial Mortgage Corporation, as special
servicer (the "Special Servicer"), Norwest Bank, Minnesota, National
Association, as paying agent, LaSalle National Bank, as trustee (the "Trustee")
and ABN Amro Bank, N.V., as fiscal agent (the "Fiscal Agent"). In exchange for
the Mortgage Loans and certain other mortgage loans (the "Bear Stearns Mortgage
Loans"), the Trust will issue to the Purchaser pass-through certificates to be
known as and Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-WF2 (the "Certificates"). The
Certificates will be issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F and
Class X Certificates (the "Public Certificates") will be sold by the Purchaser
to Bear Stearns & Co., Inc. ("Bear Stearns"), Morgan Stanley & Co. Incorporated
("Morgan") and Norwest Investment Services, Inc. ("Norwest") (collectively, the
"Initial Purchasers") pursuant to an Underwriting Agreement, between the
Purchaser and the Initial Purchasers, dated as of June 15, 1999 (the
"Underwriting Agreement") and the Class G, Class H, Class I, Class J, Class K,
Class L, Class M, Class R-I, Class R-II and Class R-III Certificates (the
"Private Certificates") will be sold by the Purchaser to Bear Stearns pursuant
to a Certificate Purchase Agreement, between the Purchaser and Bear Stearns,
dated as of June 15, 1999 (the "Certificate Purchase Agreement"). The Initial
Purchasers will offer the Public Certificates for sale publicly pursuant to a
Prospectus dated August 18, 1998 ("the "Prospectus"), as supplemented by a
preliminary Prospectus Supplement dated June 9, 1999 (such Prospectus,
preliminary Prospectus Supplement and the diskette delivered therewith,
collectively, the "Preliminary Prospectus Supplement") and as further
supplemented and amended by a final Prospectus Supplement dated June 15, 1999
(such Prospectus, final Prospectus Supplement and the diskette delivered
therewith, collectively, the "Final Prospectus Supplement"), and Bear Stearns
will offer the Private Certificates for sale in transactions exempt from the
registration requirements of the Securities Act of 1933 pursuant to a Private
Placement Memorandum to be dated June 15, 1999 (the "Memorandum").
In consideration of the mutual agreements contained herein, the Seller and
the Purchaser hereby agree as follows:
<PAGE>
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on a servicing released basis, the Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The sale of the Mortgage
Loans shall take place on June 29, 1999 or such other date as shall be mutually
acceptable to the parties hereto (the "Closing Date"). The purchase price to be
paid by the Purchaser for the Mortgage Loans shall equal the amount set forth as
such purchase price in the letter between the Seller and the Purchaser dated as
of the Closing Date. Such purchase price shall be paid to the Seller by wire
transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee pursuant to
the Pooling and Servicing Agreement all of its right, title and interest in and
to the Mortgage Loans and its rights under this Agreement (to the extent set
forth in Section 14), and the Trustee shall succeed to such right, title and
interest in and to the Mortgage Loans and the Purchaser's rights under this
Agreement (to the extent set forth in Section 14).
SECTION 2. Conveyance of Mortgage Loans. Effective as of the Closing Date,
subject only to receipt of the consideration referred to in Section 1 hereof and
the satisfaction of the conditions specified in Sections 6 and 7 hereof, the
Seller does hereby transfer, assign, set over and otherwise convey to the
Purchaser, without recourse, all the right, title and interest of the Seller in
and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from time to
time, on or prior to the Closing Date shall conform to the requirements of this
Agreement and the Pooling and Servicing Agreement. In connection with such
transfer and assignment, the Seller shall deliver to the Trustee, on behalf of
the Purchaser, on or prior to the Closing Date, the Mortgage Note (as described
in clause (i) below) for each Mortgage Loan. In addition, not later than the
30th day following the Closing Date, the Seller shall deliver to the Trustee
each of the remaining documents or instruments specified below (with such
exceptions as are permitted by this Section) with respect to each Mortgage Loan
(each, a "Mortgage File"). (The Seller acknowledges that the term "without
recourse" does not modify the duties of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the Closing
Date are to be held by the Trustee in escrow on behalf of the Seller at all
times prior to the Closing Date. The Mortgage Files shall be released from
escrow upon closing of the sale of the Mortgage Loans and payments of the
purchase price therefor as contemplated hereby. The Mortgage File for each
Mortgage Loan shall contain the following documents:
(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, on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the following
form: "Pay to the order of LaSalle Bank, National Association, as trustee
for the registered Holders of Bear Stearns Commercial Mortgage Securities
Inc. Commercial Mortgage Pass-Through Certificates, Series 1999-WF2,
without recourse, representation or warranty, express or implied" or if the
original Mortgage Note is not
2
<PAGE>
included therein, then a lost note affidavit containing a customary
indemnification provision with a copy of the Mortgage Note attached
thereto;
(ii) the original Mortgage (or a certified copy thereof from the
applicable recording office) and originals (or certified copies from the
applicable recording office) of any intervening assignments thereof showing
a complete chain of assignment from the originator of the Mortgage Loan to
the Seller, in each case with evidence of recording indicated thereon, or
certified by a title insurance company or escrow company to be a true copy
thereof; provided that if such original Mortgage cannot be delivered prior
to the Closing Date because of a delay caused by the public recording
office where such original Mortgage has been delivered for recordation or
because the original Mortgage has been lost, the Seller shall 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
shall deliver or cause to be delivered 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 Stearns Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates, Series 1999-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 shall 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,
executed by the Seller in favor of the Trustee (in such capacity);
(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,
executed by the Seller in favor of the Trustee (in such capacity);
(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, or if the policy has not yet been issued, an
original or copy of a written commitment, interim binder or the pro forma
title insurance policy, dated as of the date on which the related Mortgage
Loan was funded with the original title insurance policy to follow within
180 days of the Closing Date or a preliminary title report with an original
title insurance policy to follow within 180 days of the Closing Date;
(x) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan;
(xi) all UCC Financing Statements, assignments thereof and
continuation statements, or copies thereof, sufficient to perfect (and
maintain the perfection of) the security interest held by the originator of
the Mortgage Loan (and each assignee prior to the Trustee) in and to the
personalty of the Mortgagor at the Mortgaged Property (in each case with
evidence of filing thereon), and to transfer such security interest to the
Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the Mortgage,
any Mortgage Note or other document or instrument referred to above was not
signed by the Mortgagor;
(xiii) with respect to any Mortgage Loan with Additional Debt that
is subordinate to such Mortgage Loan, any subordination agreement, pursuant
to which such Additional Debt is subordinated to such Mortgage Loan;
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(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 survey of the related Mortgaged Property;
(xvi) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
(xvii) an original or copy of any lock-box agreements, intercreditor
agreements and management agreements related to any Mortgage Loan;
(xviii) an original or copy of any environmental reports and
environmental indemnification agreements related to any Mortgage Loan; and
(xix) an original of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan, together with the original
supporting documentation evidencing a beneficial transfer, in favor of
"LaSalle Bank, National Association, as trustee for Bear Stearns Commercial
Mortgage Securities Inc. Commercial Mortgage Pass-Through Certificates,
Series 1999-WF2.
"Officer's Certificate" shall mean a certificate signed by one or more of
the Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer, any
Assistant Treasurer or any Servicing Officer (as defined in the Pooling and
Servicing Agreement).
The assignment of Mortgage, assignment of Assignment of Leases and
assignment of UCC financing statement referred to in clauses (iv), (v), (vii)
and (xi) may be in the form of a single instrument assigning the Mortgage,
Assignment of Leases and UCC financing statement to the extent permitted by
applicable law. The Seller will deliver the original Mortgage Note to the
Trustee, on behalf of the Purchaser, endorsed in blank, to effect the transfer
to the Purchaser of the Mortgage Notes and all related deeds of trust, mortgages
and other loan documents specified above. Concurrently herewith, the Purchaser
has contracted to sell the Mortgage Loans to the Trustee on behalf of the
Certificateholders. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, the Seller shall
execute, in accordance with the third succeeding paragraph, assignments of
mortgages, the assignments of leases (to the extent separate from the mortgages)
and assignments of UCC financing statements relating to the Mortgage Loans
naming the Trustee on behalf of the Certificateholders as assignee.
Notwithstanding the fact that such assignments of mortgages, assignments of
leases (to the extent separate from the assignments of mortgages) and the
assignments of UCC financing statements shall name the Trustee on behalf of the
Certificateholders as the assignee, the parties hereto acknowledge and agree
that the Mortgage Loans shall for all purposes be deemed to have been
transferred from the Seller to the Purchaser and from the Purchaser to the
Trustee on behalf of the Certificateholders.
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If the Seller cannot deliver, or cause to be delivered, as to any Mortgage
Loan, the original Mortgage Note, the Seller shall deliver a copy or duplicate
original of such Mortgage Note, together with an affidavit certifying that the
original thereof has been lost or destroyed and indemnification of the Purchaser
and of the Trustee on behalf of the Trust Fund against any losses that the Trust
Fund may incur by reason of such lost or destroyed Mortgage Note. If the Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the
documents and/or instruments referred to in clauses (ii), (iv), (vi), (vii) and
(viii) above, with evidence of recording thereon, solely because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation, the delivery requirements of this Mortgage Loan
Purchase Agreement shall be deemed to have been satisfied as to such
non-delivered document or instrument provided that a photocopy of such
non-delivered document or instrument (certified by the Seller to be a true and
complete copy of the original thereof submitted for recording) is delivered to
the Purchaser, the Trustee or a Custodian appointed thereby on or before the
Closing Date, and either the original of such non-delivered document or
instrument, or a photocopy thereof (certified by the appropriate county
recorder's office, in the case of the documents and/or instruments referred to
in clause (ii) above to be a true and complete copy of the original thereof
submitted for recording), with evidence of recording thereon, is delivered to
the Purchaser, the Trustee or such Custodian within 180 days of the Closing Date
(or within such longer period after the Closing Date as the Purchaser may
consent to, which consent shall not be unreasonably withheld so long as the
Seller is, as certified in writing to the Purchaser and the Trustee no less
often than every 90 days, in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy). If the Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the
documents and/or instruments referred to in the definition of "Mortgage File",
with evidence of recording thereon, for any other reason, including, without
limitation, that such non-delivered document or instrument has been lost, the
delivery requirements of this paragraph shall be deemed to have been satisfied
as to such non-delivered document or instrument and such non-delivered document
or instrument shall be deemed to have been included in the Mortgage File,
provided that a photocopy of such non-delivered document or instrument (with
evidence of recording thereon and certified in the case of the documents and/or
instruments referred to in clause (ii) above by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Purchaser, the Trustee or a
Custodian appointed thereby on or before the Closing Date together with an
affidavit certifying that the original thereof has been lost or destroyed. With
respect to any Mortgage Loan, notwithstanding the foregoing, the Seller may
deliver a UCC-3 on or before the Closing Date that does not contain the filing
information for the related UCC-1 and/or UCC-2 if such UCC-1 and/or UCC-2 has
not been returned to the Seller by the applicable filing office, and the Seller
may deliver an assignment referred to in clauses (iii), (v) or (vii) above that
does not contain the recording information for the related Mortgage, Assignment
of Leases or Security Agreement, as applicable, if such Mortgage, Assignment of
Leases or Security Agreement has not been returned to the Seller by the
applicable recording office. The Seller hereby authorizes the Purchaser, acting
in its stead and on its behalf, to fill in any missing filing or recording
information or any instrument or document required to be delivered pursuant to
this paragraph.
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Except under the circumstances provided for in the last sentence of this
paragraph, the Seller shall as to each Mortgage Loan, promptly (and in any event
within 45 days of the later of the Closing Date and the Purchaser's and
Trustee's actual receipt of the related documents) cause to be submitted for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC Financing Statements, as appropriate, each
assignment referred to in clauses (iii), (v) and (vii) above and each UCC-3 to
the Trustee. Each such assignment shall reflect that it should be returned by
the public recording office to the Trustee or its designee following recording,
and each such UCC-3 shall reflect that the file copy thereof should be returned
to the Trustee or its designee following filing. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Purchaser, the Trustee or a Custodian or its
agent shall prepare or cause to be prepared a substitute therefor or cure such
defect, as the case may be, and thereafter the Trustee shall upon receipt
thereof cause the same to be duly recorded or filed, as appropriate. The
Purchaser shall execute, or cause the Seller to execute any replacement document
or instrument being filed in substitution for any such lost or returned
unrecorded or unfiled document or instrument and assist the Purchaser, the
Trustee or a Custodian or its agent in recording or filing such documents or
instruments. Notwithstanding the foregoing, there shall be no requirement to
record any assignment to the Trustee referred to in clause (iii), (v) or (vii)
above, or to file any UCC-3 referred to in clause (xi) above in those
jurisdictions where, in the written opinion of local counsel of Purchaser, the
Trustee or a Custodian acceptable to the Purchaser and the Trustee, such
recordation and/or filing is not required to protect the Purchaser's or the
Trustee's interest in the Mortgage Loans against sale, further assignment,
satisfaction or discharge by the Seller or the Purchaser.
The Trustee, as assignee or transferee of the Purchaser for the benefit of
the holders of the Certificates, shall be entitled to all scheduled payments of
principal due after the Cut-Off Date, all other payments of principal collected
after the Cut-Off Date (other than scheduled payments of principal due on or
before the Cut-Off Date), and all payments of interest on the Mortgage Loans
allocable to the period commencing on the Cut-Off Date. All scheduled payments
of principal and interest due on or before the Cut-Off Date and collected after
the Cut-Off Date shall belong to the Seller.
All documents relating to the Mortgage Loans that are not required to be
delivered to the Trustee, shall be shipped by the Seller to the Servicer, on
behalf of the Purchaser, on or prior to the Closing Date.
Upon the sale of the Mortgage Loans by the Seller to the Purchaser pursuant
to this Agreement, the ownership of each Mortgage Note, Mortgage and the other
contents of the related Mortgage File shall be vested in the Purchaser and its
assigns, and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Seller shall immediately vest in the Purchaser and its assigns, and shall be
delivered promptly by the Seller either to the Trustee or the Servicer as set
forth herein. The Seller's records shall reflect the transfer of each Mortgage
Loan to the Purchaser and its assigns as a sale.
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The Seller shall cause all funds on deposit in escrow accounts maintained
with respect to the Mortgage Loans in the name of the Seller or any other name
to be transferred to the Servicer promptly after the Closing Date, but in all
events within three (3) business days after the Closing Date.
It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans and related property to the Purchaser, by the Seller as provided
in this Section 2 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 Seller to the Purchaser to secure a debt or other obligation of
the Seller. 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 Seller, 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:
(i) this Agreement shall be deemed to be a security agreement; and
(ii) the conveyance provided for in this Section 2 shall be deemed
to be a grant by the Seller to the Purchaser, of a security interest in all
of the Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) 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 following property: the Mortgage Loans
identified on the Mortgage Loan Schedule, including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable on and
after the Cut-off Date, all substitute or replacement Mortgage Loans and
all distributions with respect thereto, and the Mortgage Files;
(B) 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
(C) All cash and non-cash proceeds of the collateral described in
clauses (A) and (B) above.
The possession by the Purchaser or its designee 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
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pursuant to the Uniform Commercial Code (including, without limitation,
Sections 9-305 and 9-115 thereof) as in force in the relevant jurisdiction.
Notwithstanding the foregoing, the Seller makes no representation or warranty
as to the perfection of any such security interest.
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
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. In such case, the Seller shall file 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 such security
interest in such property. In connection herewith, the Purchaser shall have all
of the rights and remedies of a secured party under the Uniform Commercial Code
as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, the Purchaser
shall not be required to purchase any Mortgage Loan as to which any Mortgage
Note (as described in clause (i) above) required to be delivered to the Trustee
or the Servicer pursuant to this Section 2 on or before the Closing Date is not
so delivered or deemed to be delivered, or is not properly executed or is
defective on its face, and the Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of the Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
SECTION 3. Examination of Mortgage Files and Due Diligence Review. The
Seller shall (i) deliver to the Purchaser on or before the Closing Date a
diskette acceptable to the Purchaser which contains such information about the
Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver to
the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow representatives of
any of the Purchaser, each Initial Purchaser, the Trustee, the Special Servicer
and each Rating Agency to examine and audit all books, records and files
pertaining to the Mortgage Loans, the Seller's underwriting procedures and the
Seller's ability to perform or observe all of the terms, covenants
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and conditions of this Agreement. Such examinations and audits shall take place
at one or more offices of the Seller during normal business hours and shall not
be conducted in a manner that is disruptive to the Seller's normal business
operations upon reasonable advance prior notice. In the course of such
examinations and audits, the Seller will make available to such representatives
of any of the Purchaser, each Initial Purchaser, the Trustee, the Special
Servicer and each Rating Agency reasonably adequate facilities, as well as the
assistance of a sufficient number of knowledgeable and responsible individuals
who are familiar with the Mortgage Loans and the terms of this Agreement, and
the Seller shall cooperate fully with any such examination and audit in all
material respects. On or prior to the Closing Date, the Seller shall provide the
Purchaser with all material information regarding the Seller's financial
condition and access to knowledgeable financial or accounting officers for the
purpose of answering questions with respect to the Seller's financial condition,
financial statements as provided to the Purchaser or other developments
affecting the Seller's ability to consummate the transactions contemplated
hereby or otherwise affecting the Seller in any material respect.
The Purchaser shall keep confidential any information regarding the Seller
that has been delivered into the Purchaser's possession and that is not
otherwise publicly available; provided, however, that such information shall not
be kept confidential (and the right to require confidentiality under any
confidentiality agreement is hereby waived) to the extent such information is
required to be included in the Memorandum, the Prospectus Supplement or the
Purchaser is required by law or court order to disclose such information.
SECTION 4. Representations and Warranties of the Seller and the Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the Seller hereby
makes for the benefit of the Purchaser and its assigns with respect to each
Mortgage Loan as of the date hereof (or as of such other date specifically set
forth in the particular representation and warranty) each of the representations
and warranties set forth on Exhibit 2 hereto, subject to any exceptions set
forth on Schedule 1 to Exhibit 2 hereto, and hereby further represents and
warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America. The Seller has the requisite power and authority and
legal right to own the Mortgage Loans and to transfer and convey the
Mortgage Loans to the Purchaser and has the requisite power and authority
to execute and deliver, engage in the transactions contemplated by, and
perform and observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller, and assuming the due authorization, execution
and delivery hereof by the Purchaser, this Agreement constitutes the valid,
legal and binding agreement of the Seller, enforceable in accordance with
its terms, except as such enforcement may be limited by (a) laws relating
to bankruptcy, insolvency, reorganization, receivership or moratorium, (b)
other laws relating to or affecting the rights of creditors generally, (c)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (d) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability
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of the provisions of this Agreement that purport to provide indemnification
from liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court, is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (a) such qualifications as may be required under state securities or
blue sky laws, (b) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the Purchaser,
(c) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (d) where the
lack of such consent, approval, authorization, qualification, registration,
filing or notice would not have a material adverse effect on the
performance by the Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the Seller,
conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (a) any term or provision of
the Seller's articles of association or by-laws, (b) any term or provision
of any material agreement, contract, instrument or indenture, to which the
Seller is a party or by which it or any of its assets is bound or result in
the creation or imposition of any lien, charge or encumbrance upon any of
its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, other than pursuant to this Agreement, or (c)
after giving effect to the consents or taking of the actions contemplated
in subsection (iii), any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (a), (b) or (c) above, any conflict,
breach or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the consummation of
the transactions contemplated hereby by the Seller or result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Seller, or in any material impairment of the
right or ability of the Seller to carry on its business substantially as
now conducted.
(v) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened in writing
against the Seller before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to materially
and adversely affect the transfer of the Mortgage Loans to the Purchaser or
the execution or delivery by, or enforceability against, the Seller of this
Agreement or have an effect on the financial condition of the Seller that
would materially and adversely affect the ability of the Seller to perform
its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant to
this Agreement will effect a transfer by the Seller of all of its right,
title and interest in and to the Mortgage Loans to the Purchaser.
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(vii) To the Seller's knowledge, the Mortgage Information (as
defined in that certain indemnification agreement, dated as of July 1,
1999, between the Seller, the Purchaser and the Initial Purchasers (the
"Indemnification Agreement")) does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
To induce the Purchaser to enter into this Agreement, the Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto will be true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by the Seller
pursuant to this Section 4(a) shall survive the sale of the Mortgage Loans and
shall continue in full force and effect notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes.
(b) To induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants to the Seller as of the date hereof:
(i) The Purchaser is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware with full
power and authority to carry on its business as presently conducted by it.
(ii) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into and
consummate all transactions contemplated by this Agreement. The Purchaser
has duly and validly authorized the execution, delivery and performance of
this Agreement and has duly and validly executed and delivered this
Agreement. This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes the valid and binding obligation of the
Purchaser, enforceable against it in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(iii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court, is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby which
has not been obtained or made by the Purchaser.
(iv) Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by the Purchaser will violate
the Purchaser's certificate of incorporation or by-laws or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, or result in a breach of, any material
agreement, contract, instrument or indenture to which the Purchaser is a
party or which may be applicable to the Purchaser or its assets.
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(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, rule,
writ, injunction, or any order or decree of any court, or any order or
regulation of any federal, state or municipal government agency having
jurisdiction over the Purchaser or its assets, which violation could
materially and adversely affect the condition (financial or otherwise) or
the operation of the Purchaser or its assets or could materially and
adversely affect its ability to perform its obligations and duties
hereunder.
(vi) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this Agreement
or have an effect on the financial condition of the Purchaser that would
materially and adversely affect the ability of the Purchaser to perform its
obligation under this Agreement.
To induce the Seller to enter into this Agreement, the Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser pursuant
to this Section 4(b) shall survive the purchase of the Mortgage Loans.
SECTION 5. Remedies Upon Breach of Representations and Warranties Made by
the Seller. (a) It is hereby acknowledged that the Purchaser shall make for the
benefit of the holders of the Certificates, whether directly or by way of
assignment of its rights hereunder to the Trustee, the representations and
warranties set forth on Exhibit 2 hereto.
(b) It is hereby further acknowledged that if any document required to be
delivered to the Trustee pursuant to Section 2 is not delivered as and when
required, not properly executed or is defective on its face, or if there is a
breach of any of the representations and warranties required to be made by the
Seller regarding the characteristics of the Mortgage Loans and/or the related
Mortgaged Properties as set forth in Exhibit 2 hereto, and in either case such
defect or breach materially and adversely affects the interests of the holders
of the Certificates (a "Material Document Defect" and a "Material Breach",
respectively), the party discovering such Material Document Defect or Material
Breach shall promptly notify the other parties and within 90 days of the earlier
of discovery by the Seller or receipt by the Seller of notice of such Material
Document Defect or such Material Breach, as the case may be, the Seller shall be
required to cure such Material Document Defect or Material Breach; provided,
however, the Purchaser or its assignee shall extend the cure period an
additional 90 days if the Seller certifies to the Purchaser or its assignee, as
applicable, that the Seller has been diligently attempting to cure such breach
within the 90 day period.
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<PAGE>
The Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured within the above cure
periods, the Seller shall, not later than 90 days after its discovery or the
Purchaser's or its assignee's notice to it respecting such Material Document
Defect or Material Breach, within the three-month period (or such longer period
as contemplated by the preceding paragraph) 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)),
either (i) repurchase the related Mortgage Loan from the Purchaser or its
assignee at the Purchase Price as defined in the Pooling and Servicing
Agreement, or (ii) at its option replace any Mortgage Loan to which such defect
relates with a Qualifying Substitute Mortgage Loan. If such defect would cause
the Mortgage Loan to be other than a "qualified mortgage" (as defined in the
Code), then notwithstanding the previous sentence, repurchase or substitution
must occur within the sooner of (i) 90 days from the date the Seller was
notified of the defect or (ii) two years from the Closing Date. The Seller
agrees that any such substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
The obligations of the Seller set forth in this Section 5(b) to cure a
Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach or
breach of the representations and warranties set forth in Exhibit 2 hereto;
provided, that this limitation shall not in any way limit the Purchaser's
rights or remedies upon breach of any other representation or warranty or
covenant by the Seller set forth in this Agreement (other than those set forth
in Exhibit 2).
(c) The Pooling and Servicing Agreement shall provide that the Trustee (or
the Servicer or the Special Servicer on its behalf) shall give prompt written
notice to the Seller of its discovery of any Material Document Defect or
Material Breach and prompt notice to the Seller in the event that any Mortgage
Loan becomes a Specially Serviced Mortgage Loan (as defined in the Pooling and
Servicing Agreement). The Pooling and Servicing Agreement shall provide that any
of the following Document Defects shall be conclusively presumed to be Material
Document Defects: (a) the absence from the Mortgage File of the original signed
Mortgage Note, unless the Mortgage File contains a signed lost note affidavit
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.
(d) If the Seller repurchases any Mortgage Loan pursuant to this Section 5,
the Purchaser or its assignee, following receipt by the Trustee of the Purchase
Price therefor, promptly shall deliver or cause to be delivered to the Seller,
all Mortgage Loan documents with respect to such Mortgage Loan, and each
document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner.
14
<PAGE>
SECTION 6. Closing. The closing of the sale of the Mortgage Loans shall be
held at the offices of O'Melveny & Myers LLP, New York, New York, at 10:00 a.m.
New York time, on the Closing Date.
The closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller and the
Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date.
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and acceptable to the Seller or the
Purchaser, as applicable, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser or its
designee all documents required to be delivered to the Purchaser as of the
Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory to the
Purchaser and its affiliates in their sole determination and the parties shall
have agreed to the form and contents of the Mortgage Information (as defined in
the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
the Seller and the Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date. (f) The Seller shall have paid all fees and
expenses payable by it to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned ratings by
each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
(h) Neither Initial Purchaser shall have terminated the Underwriting
Agreement and Bear Stearns shall not have terminated the Certificate Purchase
Agreement.
(i) The Seller shall have received the purchase price for the Mortgage
Loans pursuant to Section 1 hereof.
(j) The Pooling and Servicing Agreement shall have been executed and
delivered by the parties thereto.
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<PAGE>
(k) The Seller shall have executed and delivered the Indemnification
Agreement.
All parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of the
following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized officer of
the Seller and dated the Closing Date, and upon which the Purchaser and its
successors and assigns may rely, to the effect that: (a) the representations and
warranties of the Seller in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same force and effect as if made
on the Closing Date, provided that any representations and warranties made as of
a specified date shall be true and correct as of such specified date; and (b)
the Seller has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles of
association and by-laws.
(d) A certificate of existence for the Seller from the Comptroller of the
Currency, dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Assistant Secretary of the Seller, dated the
Closing Date, and upon which the Purchaser may rely, to the effect that each
individual who, as an officer or representative of the Seller, signed this
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of in-house senior counsel to the Seller, dated the Closing
Date, substantially to the effect of the following (with such changes and
modifications as the Purchaser may approve and subject to such counsel's
reasonable qualifications):
(i) The Seller continues to hold a valid certificate to do business
as a national banking association under the laws of the United States and
has full corporate power and authority to enter into and perform its
obligations under this Agreement and the Indemnification Agreement.
(ii) This Agreement and the Indemnification Agreement have been duly
authorized, executed and delivered by the Seller.
16
<PAGE>
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this Agreement
or the Indemnification Agreement except any approvals as have been
obtained.
(iv) The consummation by the Seller of any of the transactions
contemplated by the terms of this Agreement and the Indemnification
Agreement does not conflict with or result in a breach or violation of, or
constitute a default under, the charter documents of the Seller.
(v) To his knowledge, there are no legal or governmental actions,
investigations or proceedings pending to which the Seller is a party, or
threatened against the Seller, (a) asserting the invalidity of this
Agreement or the Indemnification Agreement or (b) which materially and
adversely affect the performance by the Seller of its obligations under, or
the validity or enforceability of, this Agreement.
Such opinion may express its reliance as to factual matters on, among other
things specified in such opinion, the representations and warranties made by,
and on certificates or other documents furnished by officers of, the parties to
this Agreement.
In rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the federal laws of the United States.
(g) An opinion of O'Melveny & Myers LLP, special counsel to the Seller,
dated the Closing Date, substantially to the effect (with such changes and
modifications as the Purchaser may approve and subject to such counsel's
reasonable qualifications) that this Agreement and the Indemnification Agreement
are valid, legal and binding agreements of the Seller, enforceable against the
Seller in accordance with their respective terms.
Such opinion may express its reliance as to factual matters on, among other
things specified in such opinion, the representations and warranties made by,
and on certificates or other documents furnished by officers of, the parties to
this Agreement and the opinion of in-house senior counsel to the Seller referred
to in clause (f) above.
In rendering the opinion expressed above, such counsel may limit such
opinions to matters governed by the laws of the State of New York and the
federal laws of the United States of America.
(h) Such other opinions of counsel as any Rating Agency may request in
connection with the sale of the Mortgage Loans by the Seller to the Purchaser or
the Seller's execution and delivery of, or performance under, this Agreement.
(i) A letter from Deloitte & Touche LLP, certified public accountants,
dated the date hereof, to the effect that they have performed certain specified
procedures as a result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the Memorandum and the
Prospectus Supplement agrees with the records of the Seller.
17
<PAGE>
(j) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
(k) An officer's certificate of the Purchaser, dated as of the Closing
Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(l) Such other certificates of the Purchaser's officers or others and such
other documents to evidence fulfillment of the conditions set forth in this
Agreement as the Seller or its counsel may reasonably request.
(m) An executed Bill of Sale in the form attached hereto as Exhibit 4.
SECTION 8. Costs. The Seller shall pay the Purchaser the costs and expenses
as previously agreed to by the Seller and the Purchaser.
SECTION 9. Notices. All communications provided for or permitted hereunder
shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to and Bear Stearns
Commercial Mortgage Securities Inc., 245 Park Avenue, New York, New York 10167,
Attention: James G. Reichek, with a copy to Joseph Jurkowski, Esq., telecopy
number: (212) 270-2619 (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
245 Park Avenue, New York, New York 10167, Attention: James G. Reichek, with a
copy to Joseph Jurkowski, Esq., telecopy number: (212) 270-2619.
SECTION 10. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 11. Further Assurances. The Seller and the Purchaser each agree to
execute and deliver such instruments and take such actions as the other may,
from time to time, reasonably request in order to effectuate the purpose and to
carry out the terms of this Agreement and the Pooling and Servicing Agreement.
18
<PAGE>
SECTION 12. Survival. Each party hereto agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by the
other party, notwithstanding any investigation heretofore or hereafter made by
the other party or on its behalf, and that the representations, warranties and
agreements made by such other party herein or in any such certificate or other
instrument shall survive the delivery of and payment for the Mortgage Loans and
shall continue in full force and effect, notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes and notwithstanding subsequent
termination of this Agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Benefits of Mortgage Loan Purchase Agreement. This Agreement
shall inure to the benefit of and shall be binding upon the Seller, the
Purchaser and their respective successors, legal representatives, and permitted
assigns and nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any other person any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that the rights and obligations of the
Purchaser pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12
hereof may be assigned to the Trustee as may be required to effect the purposes
of the Pooling and Servicing Agreement and, upon such assignment, the Trustee
shall succeed to the rights and obligations hereunder of the Purchaser. No owner
of a Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor because of such ownership.
SECTION 15. Modifications. (a) Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated except by a writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought. (b)
(b) The provisions of Sections 2, 4(a) (other than clause (vii), 5, 11, 12,
14 and 15 of this Agreement may not be changed in any manner which would have a
material adverse effect on Holders of Certificates without the prior written
consent of the Trustee. The Trustee shall be protected in consenting to any such
change to the same extent provided in the Pooling and Servicing Agreement.
SECTION 16. Miscellaneous. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in
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<PAGE>
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Seller is a party, or any person succeeding to the entire business of the
Seller shall be the successor to the Seller hereunder. This Agreement shall be
continuously maintained as an official record of the Seller from and after the
time of its execution.
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<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this Agreement
to be executed by their respective duly authorized officers as of the date
first above written.
BEAR, STEARNS FUNDING, INC.
By: /s/ J. Christopher Hoeffel
-----------------------------
Name: J. Christopher Hoeffel
Title: Vice President
BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ James G. Reichek
------------------------------
Name: James G. Reichek
Title: Executive Vice President
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<PAGE>
Schedule A
Releases of Mortgaged Property
None
<PAGE>
Schedule B
List of Junior Liens
------------------------- -------------------------------------------------
Loan No. Explanation
------------------------- -------------------------------------------------
17877 There is subordinate secured debt on the
Property that is held by a third party in the
approximate amount of $2,054,000.
25589 There is subordinate secured debt on the Property
that is held by the general partner of the
Borrower in the approximate amount of $2,435,318.
25118 The Borrower is permitted to encumber the
Property to secure subordinate debt in an amount
such that total debt (including the Mortgage
Loan) does not exceed 30% of the then-current
value of the Property.
------------------------- -------------------------------------------------
<PAGE>
Schedule C
List of Loans with Ground Leases
with terms less than 10 years
beyond the Stated Maturity Date
None
<PAGE>
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
1-1
<PAGE>
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(Representations and Warranties with respect to Bear Stearns Loans)
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the date of this
Agreement and as of the Cut-off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to the Purchaser of the Mortgage Loans, the Seller had good title
to, and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to transfer and assign each of the Mortgage Loans to or at
the direction of the Purchaser and has validly and effectively conveyed (or
caused to be conveyed) to the Purchaser or its designee all of the Seller's
legal and beneficial interest in and to the Mortgage Loans free and clear of any
and all pledges, liens, charges, security interests and/or other encumbrances.
The sale of the Mortgage Loans to the Purchaser or its designee does not require
the Seller to obtain any governmental or regulatory approval or consent that has
not been obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Cut-off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph (13) below, enforceable first priority lien
upon the related Mortgaged Property, which includes all buildings located
thereon and all fixtures thereto, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, and (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt (the foregoing items (a) through
(d) being herein referred to as the "Permitted Encumbrances"). The related
assignment of such Mortgage executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Mortgage. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and, subject to the exceptions set forth in
paragraph (13) below, enforceable security interest in favor
2-1
<PAGE>
of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, and such security interest is a first priority security interest,
subject to any prior purchase money security interest in such personal property
and any personal property leases applicable to such personal property.
Notwithstanding the foregoing, no representation is made as to the perfection of
any security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing of Uniform
Commercial Code financing statements are required in order to effect such
perfection.
5. Assignment of Leases and Rents. The Assignment of Leases set forth in
the Mortgage and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and, subject to the exceptions set
forth in paragraph (13) below, enforceable first priority lien and first
priority security interest in the related Mortgagor's interest in all leases,
sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same. The related assignment of any Assignment of Leases, not
included in a Mortgage, executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in material part,
and the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in material part, nor has any instrument been executed
that would effect any such satisfaction, cancellation, subordination, rescission
or release, except for any partial reconveyances of real property that do not
materially adversely affect the value of the property. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived,
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File.
7. Condition of Property; Condemnation. Except as set forth in an
engineering report prepared in connection with the origination of the related
Mortgage Loan, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage that would materially and adversely affect its value as
security for the related Mortgage Loan. The Seller has received no notice of the
commencement of any proceeding for the condemnation of all or any material
portion of any Mortgaged Property. To the Seller's knowledge (based on surveys
and/or title insurance obtained in connection with the origination of the
Mortgage Loans), as of the date of the origination of each Mortgage Loan, all of
the material improvements on the related Mortgaged Property which were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability of
such
2-2
<PAGE>
Mortgaged Property, except those encroachments that are insured against by
the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an American Land
Title Association (or an equivalent form of) lender's title insurance policy or
a mark-up title insurance commitment (on which the required premium has been
paid) which evidences such title insurance policy (the "Title Policy") in the
original principal amount of the related Mortgage Loan after all advances of
principal. Each Title Policy insures that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph (13) below) such as
to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. Each Mortgage Loan
contains a "due on sale" clause, which provides for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan if, without prior
written consent of the holder of the Mortgage, the property subject to the
Mortgage or any material portion thereof, is transferred, sold or encumbered
other than for the junior liens listed on Schedule B hereto; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
2-3
<PAGE>
12. Environmental Conditions. An environmental site assessment was
performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance, or (ii) the related Mortgagor was required either to provide
additional security which was deemed to be sufficient by the originator to
remediate the problem and/or to obtain an operations and maintenance plan.
13. Loan Document Status. Each Mortgage Note, Mortgage and other document
conveyed to the Depositor with respect to a Mortgage Loan that evidences or
secures such Mortgage Loan and was executed by or on behalf of the related
Mortgagor is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally, and
by general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other document.
14. Insurance. Each Mortgaged Property is, and is required pursuant to the
related Mortgage, to be insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of the principal balance of the
related Mortgage Loan and the replacement cost of the Mortgaged Property, with
no deduction for depreciation, and not less than the amount necessary to avoid
the operation of any co-insurance provisions with respect to the Mortgaged
Property; (b) a business interruption or rental loss insurance policy, in an
amount at least equal to six months of operations of the Mortgaged Property; (c)
a flood insurance policy (if any portion of buildings or other structures on the
Mortgaged Property are located in an area identified by the Federal Emergency
Management Agency as having special flood hazards); and (d) a comprehensive
general liability insurance policy in amounts as are generally required by
commercial mortgage lenders, and in any event not less than $1 million per
occurrence. Such insurance policy contains a standard mortgagee clause that
names the mortgagee (in its capacity as mortgagee or loss payee, as applicable)
as an additional insured and requires prior notice to the holder of the Mortgage
of termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes
2-4
<PAGE>
the holder of the Mortgage to maintain such insurance at the Mortgagor's cost
and expense and to seek reimbursement therefor from such Mortgagor. Each
Mortgage provides that casualty insurance proceeds will be applied either to the
restoration or repair of the related Mortgaged Property or to the reduction of
the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no delinquent
or unpaid taxes or assessments (including assessments payable in future
installments), or other outstanding charges affecting any Mortgaged Property
which are or may become a lien of priority equal to or higher than the lien of
the related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered unpaid until the date on
which interest and/or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), of the related
Mortgagor's interest in the Ground Lease but is not secured by the related fee
interest in such Mortgaged Property (the "Fee Interest"):
(a) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between the Seller and related lessor)
permits the current use of the Mortgaged Property and permits the
interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment terms of
such Ground Lease since the origination of the related Mortgage Loan,
with the exception of material changes reflected in written instruments
that are a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with,
the related Mortgage, other than Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and assigns upon notice
to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing Date)
and, in the event that it is so assigned, is further assignable by the
Purchaser and its successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor, or if such lessor's
consent is required it cannot be unreasonably withheld;
(d) Such Ground Lease is in full force and effect and no
material amendment to such Ground Lease is binding on mortgagee unless
the mortgagee has consented thereto, and the Seller has received no
notice that an event of default has occurred thereunder, and, to the
Seller's knowledge, there exists no condition that, but for the passage
of time or the giving of notice, or both, would result in an event of
default under the terms of such Ground Lease;
2-5
<PAGE>
(e) Such Ground Lease, or an estoppel letter or other
agreement, (A) requires the lessor under such Ground Lease to give
notice of any default by the lessee to the holder of the Mortgage; and
(B) provides that no notice of termination given under such Ground
Lease is effective against the holder of the Mortgage unless a copy of
such notice has been delivered to such holder and the lessor has
offered or is required to enter into a new lease with such holder on
terms that do not materially vary from the economic terms of the Ground
Lease.
(f) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice
of any such default, before the lessor thereunder may terminate such
Ground Lease;
(g) Except as set forth on Schedule C, such Ground Lease has
an original term (including any extension options set forth therein)
which extends not less than ten years beyond the Maturity Date of the
related Mortgage Loan;
(h) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease interest
will be applied either (A) to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and disburse
such proceeds as the repair or restoration progresses (except in such
cases where a provision entitling a third party to hold and disburse
such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or (B) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon; and
(i) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (ii) at the Closing Date at least equal to 80 percent of
the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described
2-6
<PAGE>
in clauses (a)(i) and (a)(ii) of this paragraph (13) shall be made on a pro rata
basis in accordance with the fair market values of the Mortgaged Properties
securing such cross-collateralized Mortgage Loans); or (b) substantially all the
proceeds of such Mortgage Loan were used to acquire, improve or protect the real
property which served as the only security for such Mortgage Loan (other than a
recourse feature or other third party credit enhancement within the meaning of
Treasury Regulations Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was "significantly
modified" prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (a) was modified as a result of the default or
reasonably foreseeable default of such Mortgage Loan or (b) satisfies the
provisions of either clause (a)(i) of paragraph (19) above (substituting the
date of the last such modification for the date the Mortgage Loan was
originated) or clause (a)(ii) of paragraph (19) above, including the proviso
thereto.
21. Advancement of Funds by the Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of any
and all mechanics' and materialmen's liens that are prior or equal to the lien
of the related Mortgage, and no rights are outstanding that under law could give
rise to any such lien that would be prior or equal to the lien of the related
Mortgage except, in each case, for liens insured against by the Title Policy
referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property from the lien of the
related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A require the mortgagee to grant releases of portions of
the related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements and (b) the payment of a release price set forth
therein and prepayment consideration in connection therewith.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
2-7
<PAGE>
27. No Material Default. To the Seller's best knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any of paragraphs (3), (7),
(12), (14), (15), (16) and (17) hereof.
28. Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
29. Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination.
30. Junior Liens. Only Mortgage Loans identified on Schedule B permit the
related Mortgaged Property to be encumbered by a lien junior to the lien of the
related Mortgage and describes any requirements relating to debt service
coverage or similar criteria needed to be satisfied to obtain such junior lien.
Except as otherwise set forth in Schedule B, the Seller has no knowledge that
any of the Mortgaged Properties is encumbered by any lien junior to or in parity
with the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgage Loan or the
validity or enforceability of the related Mortgage or that might materially and
adversely affect the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by the Seller
have been in all material respects legal, proper and prudent and have met
customary industry standards.
33. Licenses and Permits. To the Seller's knowledge, based on due diligence
that it customarily performs in the origination of comparable mortgage loans, as
of the date of origination of each Mortgage Loan, the related Mortgagor was in
possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgage Property
as it was then operated.
2-8
<PAGE>
34. Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by any collateral (including any mortgage) that is not included in the
Trust.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $20 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity, separate
and apart from any other person.
36. Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage
Loan provide that such Mortgage Loan constitutes the non-recourse obligations of
the related obligors thereon except that either (i) such provision does not
apply in the case of fraud by the Mortgagor or (ii) such documents provide that
the Mortgagor shall be liable to the holder of the Mortgage Loan for losses
incurred as a result of fraud by the Mortgagor.
37. Defeasance. Each Mortgage Loan which grants the related Mortgagor the
option to obtain the release of the lien of the Mortgage on the related
Mortgaged Property by substituting U.S. Treasury securities for such Mortgaged
Property, as collateral for the related Mortgage Notes (i) does not, as a
factual matter, permit defeasance prior to the date such defeasance would be
permitted under the applicable REMIC provisions and (ii) requires the delivery
of a Rating Agency Confirmation or requires that (A) the replacement collateral
consist of U.S. Treasury securities in an amount sufficient to make all
scheduled payments under the Mortgage Note when due, as certified by an
independent accounting firm, (B) the Mortgage Loan be assumed by a
single-purpose entity that is established for the purpose of holding Defeasance
Collateral with respect to one or more Mortgage Loans, and (C) counsel provide
an opinion that the holder of the Mortgage Loan has a perfected security
interest in such collateral prior to any other claim or interest and (iii)
requires the related Mortgagor pay all of the reasonable costs and expenses
incurred in connection with the exercise of such options; and
38. SMMEA Qualification. Each Mortgage Loan was originated by a savings and
loan association, savings bank, commercial bank, credit union, insurance
company, or similar institution which is supervised and examined by a Federal or
State authority, or by a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the National Housing Act.
2-9
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered on this _________ day
of _____, 1999.
SELLER: BEAR, STEARNS FUNDING, INC.
By:
---------------------------------
Name: J. Christopher Hoeffel
Title: Vice President
PURCHASER: BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES INC.
By:
----------------------------------
Name: James G. Reichek
Title: Executive Vice President
<PAGE>
EXHIBIT 3
PRICING FORMULATION
3-1
<PAGE>
EXHIBIT 4
BILL OF SALE
1. PARTIES. The parties to this Bill of Sale are the following:
Seller: Bear, Stearns Funding, Inc.
Purchaser: Bear Stearns Commercial Mortgage Securities Inc.
2. SALE. For value received, the Seller hereby conveys to the Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of July 1, 1999 (the "Mortgage Loan Purchase
Agreement"), between the Seller and the Purchaser and all of the following
property:
(a) 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
following property: the Mortgage Loans identified on the Mortgage Loan
Schedule, including the related Mortgage Notes, Mortgages, security
agreements, and title, hazard and other insurance policies, all
distributions with respect thereto payable on and after the Cut-off
Date, and the Mortgage Files;
(b) 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 property described in clause (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the property described
in clauses (a) and (b) above (but excluding the Purchase Price paid by
the Purchaser to the Seller).
3. PURCHASE PRICE. The amount set forth in the letter between the Seller
and the Purchaser dated the Closing Date.
4. DEFINITIONS. Terms used but not defined herein shall have the meanings
assigned to them in the Mortgage Loan Purchase Agreement.
4-1
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this
Bill of Sale to be duly executed and delivered on this _________ day of _____,
1999.
SELLER: BEAR, STEARNS FUNDING, INC.
By:
------------------------------
Name: J. Christopher Hoeffel
Title: Vice President
PURCHASER: BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES INC.
By:
-------------------------------
Name: James G. Reichek
Title: Executive Vice President
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
LOAN
NUMBER LOAN NAME ADDRESS CITY STATE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
5502 205 Place Shopping Center 9710-9740 S.E. Washington Street Portland OR
5504 Talbert Center 12230-12400 Southeast Sunnyside Road Clackamas OR
8643 2607 Rhawn St. & 8040 Roosevelt Blvd. 2607 Rhawn St. & 8040 Roosevelt Blvd. Philadelphia PA
9122 Torrey Reserve North Court 11622-11682 El Camino Real San Diego CA
9419 Southland Plaza 3200 West Park Avenue Houma LA
9675 211 63rd Street 211 63rd Street Brooklyn NY
11101 310 West C Street 300-310 West C Street San Diego CA
11134 Hilltop Medical Center 2970 Hilltop Mall Road Richmond CA
11505 Waverly Elementary School 1150 East New York Ave. Brooklyn NY
12052 Crondall Corner 3710 Crondall Lane Owings Mill MD
12099 Forest Plaza 195 Forest Ave, 645 & 695 High Street Palo Alto CA
12101 Keyser Oaks Center Keyser Avenue & Oak Avenue Scranton PA
12130 38 East 30th Street 38 East 30th Street New York NY
16398 Gary's Plaza Shopping Center 553 South Broad Street Lansdale PA
16416 Woodlane Square Shopping Center 798 Woodlane Road Burlington County NJ
16465 3720 Arroyo Sorrento Road 3720 Arroyo Sorrento Road San Diego CA
16953 Glencoe Building 4061-4063 Glencoe Avenue Marina Del Rey CA
16958 Redwood Studios 4077-81 Redwood Drive Marina Del Rey CA
17154 521-527 & 529-535 West 20th Street 521-527 & 529-535 West 20th Street New York NY
17553 Gaithersburg Storehouse 1 Metropolitan Grove Road Gaithersburg MD
17583 State Tower Building 201-19 East Genesee Street Syracuse NY
17660 Plymouth Square Shopping Center Ridge Pike/Butler Pike Plymouth Meeting PA
17718 Homewood Suites 2250 Center Street Chattanooga TN
17875 St. Jude's Health Complex 433 & 459 W. Bastanchury Rd. Fullerton CA
17877 Ruxton Tower 50 West 72nd Street New York NY
17923 All American Mini Storage 711 South Mills Avenue Claremont CA
17927 Barnegat Mini-Storage 85 South Main Street Barnegat NJ
17961 Hidden Valley Apartments 531-561 Westview Drive Hastings MN
17962 Willow Park Apartments 6200-6651 67th Avenue North Brooklyn Park MN
18041 225 Broadway 225 Broadway New York NY
18066 Vagabond Inn Hayward 20455 Hesperian Boulevard Hayward CA
18113 Best Western - Lake Norman 19608 Liverpool Parkway Cornelius NC
18137 Glenn Dale Business Center 7100 Holladay Tyler Road Glenn Dale MD
18173 Miracle Mile Mobile Home Park 3642 Boulder Highway Las Vegas NV
18332 Albertson's Marketplace 6411-6511 E. Spring Street, 3022-3028 Palo Verde Ave. Long Beach CA
18346 Piney Orchard Market Place 8671-8779 Piney Orchard Parkway Odenton MD
25024 417-423 West Broadway 417-423 West Broadway Boston MA
25069 Lochwood Portfolio 5880 Ridgewood Road Jackson MS
25078 Sunrise Shopping Center 100-265 Sunrise Center Road Zanesville OH
25117 Village Walk Shopping Center 770 Boston Post Road Guilford CT
25118 Quebec House Apartments 2800-2801 Quebec Street, N.W. Washington DC
25144 Pecan Park Place 1241 FM 359 Richmond TX
25165 Trumbull Medical Arts Center 15 Corporate Drive Trumbull CT
25195 598 Broadway 598 Broadway New York NY
25271 Crystal Tree Apartments 1050 E. Henderson Ave Fresno CA
25312 Parkland Green Apartments 15000, 15100 West Cleveland Ave New Berlin WI
25352 Shakespeare & Sherwood Apartments 490-500 Sherwood Place Stratford CT
25387 Vagabond Portfolio
25423 Holiday Inn Express 2080 West North Temple Salt Lake City UT
25445 Southgate Mini Storage 1025 Golden Gate Drive Napa CA
25451 Diho Plaza 9250 Bellaire Boulevard Houston TX
25479 7 East 47th Street 7 East 47th Street New York NY
25485 Regent Square Apartments 1 North Randall Avenue Madison WI
25489 Inland Portfolio
25508 Eckerd's 25 Seminary Street Auburn NY
25557 Sun Suites
25559 Harborwood West Apartments 6100 Soudview Drive Gig Harbor WA
25577 270 St. Paul Building 270 St. Paul Denver CO
25589 The Craft House Apartments 51-55 N. Third Street Philadelphia PA
25609 The Growth Companies Portfolio
25675 Snowden's Ridge Apartments 2105-A Harlequin Terrace Silver Spring MD
25714 Interpointe Shopping Center 2100 South & 300 West Salt Lake City UT
25742 Northfield Estates 710-740 North State Highway 3 Northfield MN
25764 Brinkley House Apartments 3051 Brinkley Rd Temple Hills MD
25959 Mayfair House Apartments 2930 Cherry Street Falls Church VA
26031 San Jacinto Court Shopping Center 5003 Garth Road Baytown TX
26032 Ashford Court Shopping Center 12701 Westheimer Road Houston TX
26174 Parkvale Medical Office 4616 N. 51st Avenue Phoenix AZ
<PAGE>
<CAPTION>
STATED
ORIGINAL
TERM TO
LOAN GROSS MORTGAGE ADMINISTRATIVE NET MORTGAGE MATURITY
NUMBER ZIP CODE RATE COST RATE RATE ORIGINAL BALANCE CUT-OFF BALANCE (MOS.)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
5502 97216 7.4600% 0.053% 7.4070% $7,850,000.00 $7,839,854.99 120
5504 97015 7.4600% 0.053% 7.4070% 4,950,000.00 4,943,602.83 120
8643 19152 9.0000% 0.053% 8.9470% 3,000,000.00 2,997,324.11 120
9122 92130 7.5550% 0.053% 7.5020% 18,300,000.00 18,286,567.59 120
9419 70364 7.3850% 0.053% 7.3320% 2,850,000.00 2,811,961.60 120
9675 11220 8.6550% 0.053% 8.6020% 2,725,000.00 2,720,493.82 120
11101 92101 8.0500% 0.053% 7.9970% 900,000.00 892,961.41 180
11134 94806 8.0400% 0.053% 7.9870% 4,100,000.00 4,092,679.96 120
11505 11212 8.0600% 0.053% 8.0070% 2,500,000.00 2,471,050.70 120
12052 21117 7.7300% 0.053% 7.6770% 3,750,000.00 3,745,478.48 120
12099 94301 8.2250% 0.053% 8.1720% 2,925,000.00 2,923,125.28 120
12101 18504 8.0850% 0.053% 8.0320% 3,200,000.00 3,190,821.90 180
12130 10016 6.7100% 0.053% 6.6570% 6,400,000.00 6,352,555.92 120
16398 19446 8.1550% 0.053% 8.1020% 3,140,000.00 3,136,619.30 120
16416 80606 8.7050% 0.053% 8.6520% 3,450,000.00 3,444,785.64 120
16465 92130 7.5550% 0.053% 7.5020% 950,000.00 949,302.69 120
16953 90292 7.4000% 0.053% 7.3470% 1,700,000.00 1,695,510.77 120
16958 90292 7.4950% 0.053% 7.4420% 2,500,000.00 2,493,554.59 120
17154 10011 7.1600% 0.053% 7.1070% 6,500,000.00 6,490,945.63 120
17553 20878 7.4000% 0.053% 7.3470% 2,350,000.00 2,336,206.16 120
17583 13202 8.9900% 0.053% 8.9370% 4,950,000.00 4,947,290.54 120
17660 19428 7.4500% 0.053% 7.3970% 15,300,000.00 15,280,176.76 120
17718 37421 8.7300% 0.053% 8.6770% 4,250,000.00 4,236,423.75 120
17875 92835 7.4500% 0.053% 7.3970% 4,875,000.00 4,855,796.63 120
17877 10023 6.8250% 0.053% 6.7720% 7,650,000.00 7,650,000.00 120
17923 91711 8.1700% 0.053% 8.1170% 1,675,000.00 1,671,944.74 120
17927 08005 8.2650% 0.053% 8.2120% 1,400,000.00 1,396,064.59 120
17961 55033 7.2500% 0.053% 7.1970% 1,500,000.00 1,498,829.86 120
17962 55429 7.2500% 0.053% 7.1970% 2,100,000.00 2,098,361.80 120
18041 10007 7.3900% 0.053% 7.3370% 25,500,000.00 25,466,456.83 120
18066 94541 8.4600% 0.053% 8.4070% 2,300,000.00 2,281,285.13 120
18113 28031 8.9200% 0.053% 8.8670% 3,700,000.00 3,690,814.53 120
18137 20769 7.8300% 0.053% 7.7770% 9,000,000.00 8,989,428.78 120
18173 89121 7.1300% 0.053% 7.0770% 6,500,000.00 6,485,527.78 120
18332 90808 7.4000% 0.053% 7.3470% 8,700,000.00 8,677,025.73 120
18346 21113 7.7400% 0.053% 7.6870% 2,800,000.00 2,798,019.80 120
25024 02127 8.5000% 0.053% 8.4470% 1,255,000.00 1,253,783.98 120
25069 39211 8.1200% 0.053% 8.0670% 7,470,000.00 7,461,880.42 120
25078 43701 8.1600% 0.053% 8.1070% 1,750,000.00 1,748,207.21 120
25117 06437 7.6400% 0.053% 7.5870% 2,500,000.00 2,498,196.02 120
25118 20008 7.0200% 0.053% 6.9670% 6,000,000.00 6,000,000.00 60
25144 77469 8.1000% 0.053% 8.0470% 2,300,000.00 2,297,620.60 180
25165 06611 7.5800% 0.053% 7.5270% 3,800,000.00 3,795,723.63 120
25195 10012-3351 7.8000% 0.053% 7.7470% 3,000,000.00 3,000,000.00 180
25271 93706 7.4600% 0.053% 7.4070% 5,000,000.00 5,000,000.00 120
25312 53151 7.8000% 0.053% 7.7470% 4,800,000.00 4,796,646.22 120
25352 06615 7.3350% 0.053% 7.2820% 2,500,000.00 2,498,082.47 120
25387 8.9450% 0.053% 8.8920% 9,340,000.00 9,331,592.45 120
25423 84116 8.7200% 0.053% 8.6670% 4,100,000.00 4,100,000.00 120
25445 94558 7.9700% 0.053% 7.9170% 2,150,000.00 2,150,000.00 120
25451 77036 7.9500% 0.053% 7.8970% 3,125,000.00 3,121,687.28 120
25479 10017 7.8900% 0.053% 7.8370% 1,550,000.00 1,548,936.53 120
25485 53715 7.4050% 0.053% 7.3520% 2,200,000.00 2,197,453.73 120
25489 6.8650% 0.053% 6.8120% 57,450,000.00 57,450,000.00 60
25508 13021 7.9700% 0.053% 7.9170% 2,200,000.00 2,197,675.41 120
25557 8.8600% 0.053% 8.8070% 15,640,000.00 15,640,000.00 120
25559 98335 7.5300% 0.053% 7.4770% 3,000,000.00 3,000,000.00 120
25577 80206 8.2400% 0.053% 8.1870% 3,500,000.00 3,500,000.00 120
25589 19106-4517 7.7750% 0.053% 7.7220% 3,435,000.00 3,432,587.81 120
25609 7.4500% 0.053% 7.3970% 4,775,000.00 4,775,000.00 120
25675 20904 7.4150% 0.053% 7.3620% 4,000,000.00 3,996,980.53 120
25714 84115-2513 7.6600% 0.053% 7.6070% 5,200,000.00 5,196,262.78 120
25742 55057 7.7000% 0.053% 7.6470% 1,300,000.00 1,298,565.03 120
25764 20748 6.9550% 0.053% 6.9020% 16,000,000.00 15,986,768.04 120
25959 22042 6.9550% 0.053% 6.9020% 6,000,000.00 5,995,038.02 120
26031 77521 8.6150% 0.053% 8.5620% 5,550,000.00 5,550,000.00 120
26032 77077 8.5200% 0.053% 8.4670% 2,390,000.00 2,388,558.08 120
26174 85031 7.5600% 0.053% 7.5070% 3,300,000.00 3,296,274.35 120
<PAGE>
<CAPTION>
REMAINING
TERM TO ORIGINAL
LOAN MATURITY AMORTIZATION INTEREST ONLY FIRST PAYMENT
NUMBER (MOS.) MATURITY DATE ARD DATE ARD RATE STEP (BPS) (MOS.) MONTHS DATE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
5502 118 05/01/09 360 0 06/01/99
5504 118 05/01/09 360 0 06/01/99
8643 119 06/01/09 300 0 07/01/99
9122 119 06/01/09 360 0 07/01/99
9419 108 07/01/08 300 0 08/01/98
9675 118 05/01/09 300 0 06/01/99
11101 167 06/01/13 360 0 07/01/98
11134 117 04/01/09 360 0 05/01/99
11505 113 12/01/08 240 0 01/01/99
12052 118 05/01/09 360 0 06/01/99
12099 119 06/01/09 360 0 07/01/99
12101 179 06/01/14 180 0 07/01/99
12130 111 10/01/08 360 0 11/01/98
16398 118 05/01/09 360 0 06/01/99
16416 117 04/01/09 360 0 05/01/99
16465 119 06/01/09 360 0 07/01/99
16953 116 03/01/09 360 0 04/01/99
16958 116 03/01/09 360 0 04/01/99
17154 118 05/01/09 360 0 06/01/99
17553 115 02/01/09 300 0 03/01/99
17583 119 06/01/09 200 360 0 07/01/99
17660 118 05/01/09 360 0 06/01/99
17718 117 04/01/09 276 0 05/01/99
17875 117 04/01/09 276 0 05/01/99
17877 116 03/01/09 0 120 04/01/99
17923 118 05/01/09 300 0 06/01/99
17927 117 04/01/09 300 0 05/01/99
17961 119 06/01/09 360 0 07/01/99
17962 119 06/01/09 360 0 07/01/99
18041 118 05/01/09 360 0 06/01/99
18066 115 02/01/09 240 0 03/01/99
18113 117 04/01/09 300 0 05/01/99
18137 118 05/01/09 360 0 06/01/99
18173 118 05/01/09 300 0 06/01/99
18332 116 03/01/09 360 0 04/01/99
18346 119 06/01/09 360 0 07/01/99
25024 119 06/01/09 300 0 07/01/99
25069 118 05/01/09 360 0 06/01/99
25078 119 06/01/09 300 0 07/01/99
25117 119 06/01/09 360 0 07/01/99
25118 59 06/01/04 0 60 07/01/99
25144 179 06/01/14 300 0 07/01/99
25165 119 06/01/09 300 0 07/01/99
25195 180 07/01/14 300 0 08/01/99
25271 120 07/01/09 300 0 08/01/99
25312 119 06/01/09 360 0 07/01/99
25352 119 06/01/09 360 0 07/01/99
25387 119 06/01/09 300 0 07/01/99
25423 120 07/01/09 300 0 08/01/99
25445 120 07/01/09 300 0 08/01/99
25451 119 06/01/09 300 0 07/01/99
25479 119 06/01/09 360 0 07/01/99
25485 119 06/01/09 300 0 07/01/99
25489 59 06/01/04 0 60 07/01/99
25508 119 06/01/09 300 0 07/01/99
25557 120 07/01/09 300 0 08/01/99
25559 120 07/01/09 360 0 08/01/99
25577 120 07/01/09 360 0 08/01/99
25589 119 06/01/09 360 0 07/01/99
25609 120 07/01/09 360 0 08/01/99
25675 119 06/01/09 360 0 07/01/99
25714 119 06/01/09 360 0 07/01/99
25742 119 06/01/09 300 0 07/01/99
25764 119 06/01/09 360 0 07/01/99
25959 119 06/01/09 360 0 07/01/99
26031 120 07/01/09 360 0 08/01/99
26032 119 06/01/09 360 0 07/01/99
26174 119 06/01/09 300 0 07/01/99
<PAGE>
<CAPTION>
DEBT
SERVICE INTEREST REAL
LOAN COVERAGE ACCRUAL PROPERTY LIEN
NUMBER MONTHLY P&I APPRAISED VALUE CUT-OFF LTV RATIO METHOD INTEREST POSITION CALL PROTECTION
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
5502 $54,673 $13,200,000 59.39% 1.60x Actual/360 Fee First Defeasance
5504 34,475.64 8,200,000 60.29% 1.59 Actual/360 Fee First Defeasance
8643 25,175.89 4,700,000 63.77% 1.34 Actual/360 Fee First Defeasance
9122 128,646.16 28,400,000 64.39% 1.49 Actual/360 Fee First Defeasance
9419 20,848.52 3,800,000 74.00% 1.42 Actual/360 Fee First Defeasance
9675 22,227.80 4,100,000 66.35% 1.34 Actual/360 Fee First Defeasance
11101 6,635.28 1,700,000 52.53% 1.71 Actual/360 Fee First Defeasance
11134 30,198.75 6,000,000 68.21% 1.38 Actual/360 Fee First Defeasance
11505 21,004.45 4,750,000 52.02% 1.39 Actual/360 Fee First Defeasance
12052 26,813.65 5,300,000 70.67% 1.43 Actual/360 Fee First Defeasance
12099 21,923.16 4,400,000 66.43% 1.26 Actual/360 Fee First Defeasance
12101 30,738.10 9,100,000 35.06% 1.78 Actual/360 Fee First Defeasance
12130 41,340.25 12,000,000 52.94% 1.70 Actual/360 Fee First Defeasance
16398 23,380.39 4,900,000 64.01% 1.45 Actual/360 Fee First Defeasance
16416 27,030.36 4,900,000 70.30% 1.34 Actual/360 Fee First Defeasance
16465 6,678.35 1,375,000 69.04% 1.49 Actual/360 Fee First Defeasance
16953 11,770.46 2,650,000 63.98% 1.83 Actual/360 Fee First Defeasance
16958 17,471.80 4,250,000 58.67% 1.57 Actual/360 Fee First Defeasance
17154 43,945.36 13,300,000 48.80% 1.83 Actual/360 Fee First Defeasance
17553 17,213.72 4,100,000 56.98% 1.84 Actual/360 Fee First Defeasance
17583 39,793.21 8,000,000 61.84% 1.36 Actual/360 Fee First Defeasance
17660 106,456.47 22,500,000 67.91% 1.48 Actual/360 Fee First Defeasance
17718 35,754.55 6,700,000 63.23% 1.56 Actual/360 Fee First Defeasance
17875 36,962.99 8,200,000 59.22% 1.48 Actual/360 Fee First Defeasance
17877 44,113.67 20,500,000 37.32% 2.15 Actual/360 Fee First Defeasance
17923 13,117.12 2,700,000 61.92% 1.38 Actual/360 Fee First Defeasance
17927 11,052.34 3,230,000 43.22% 1.86 Actual/360 Fee First Defeasance
17961 10,232.64 4,550,000 32.94% 3.18 Actual/360 Fee First Defeasance
17962 14,325.70 10,100,000 20.78% 4.45 Actual/360 Fee First Defeasance
18041 176,382.93 50,000,000 50.93% 1.65 Actual/360 Fee First Defeasance
18066 19,901.74 4,100,000 55.64% 1.55 Actual/360 Leasehold First Defeasance
18113 30,847.82 5,700,000 64.75% 1.59 Actual/360 Fee First Defeasance
18137 64,975.36 12,600,000 71.34% 1.41 Actual/360 Fee First Defeasance
18173 46,481.10 11,700,000 55.43% 1.94 Actual/360 Fee First Defeasance
18332 60,237.04 11,600,000 74.80% 1.38 Actual/360 Fee First Defeasance
18346 20,040.20 4,000,000 69.95% 1.51 Actual/360 Fee First Defeasance
25024 10,105.60 2,300,000 54.51% 1.54 Actual/360 Fee First Defeasance
25069 55,438.39 11,700,000 63.78% 1.28 Actual/360 Fee First Defeasance
25078 13,692.79 2,590,000 67.50% 1.41 Actual/360 Fee First Defeasance
25117 17,720.65 4,100,000 60.93% 1.57 Actual/360 Fee First Defeasance
25118 35,100.00 34,000,000 17.65% 7.37 30/360 Leasehold First Defeasance
25144 17,904.41 3,550,000 64.72% 1.39 Actual/360 Fee First Defeasance
25165 28,279.70 7,175,000 52.90% 1.77 Actual/360 Fee First Defeasance
25195 22,758.43 6,800,000 44.12% 1.65 Actual/360 Fee First Defeasance
25271 36,819.57 9,600,000 52.08% 1.52 Actual/360 Fee First Defeasance
25312 34,553.78 6,000,000 79.94% 1.31 Actual/360 Fee First Defeasance
25352 17,198.78 5,800,000 43.07% 1.93 Actual/360 Fee First Defeasance
25387 78,029.47 13,850,000 67.38% 1.55 Actual/360 Fee First Defeasance
25423 33,624.36 5,900,000 69.49% 1.50 Actual/360 Fee First Defeasance
25445 16,551.34 4,200,000 51.19% 1.68 Actual/360 Fee First Defeasance
25451 24,015.84 4,300,000 72.60% 1.35 Actual/360 Fee First Defeasance
25479 11,254.72 2,400,000 64.54% 1.39 Actual/360 Fee First Defeasance
25485 16,122.10 3,350,000 65.60% 1.48 Actual/360 Fee First Defeasance
25489 328,661.88 122,570,000 46.87% 2.48 30/360 Fee First Defeasance
25508 16,936.26 3,690,000 59.56% 1.41 Actual/360 Fee First Defeasance
25557 129,754.17 24,428,000 64.02% 1.56 Actual/360 Fee First Defeasance
25559 21,038.10 4,850,000 61.86% 1.45 Actual/360 Fee First Defeasance
25577 26,269.73 5,300,000 66.04% 1.35 Actual/360 Fee First Defeasance
25589 24,668.13 4,300,000 79.83% 1.29 Actual/360 Fee First Defeasance
25609 33,224.16 6,925,000 68.95% 1.53 Actual/360 Fee First Defeasance
25675 27,736.14 5,350,000 74.71% 1.35 Actual/360 Fee First Defeasance
25714 36,930.56 6,546,000 79.38% 1.39 Actual/360 Fee First Defeasance
25742 9,776.64 1,800,000 72.14% 1.48 Actual/360 Fee First Defeasance
25764 105,965.29 27,000,000 59.21% 1.76 Actual/360 Fee First Defeasance
25959 39,736.98 11,600,000 51.68% 1.98 Actual/360 Fee First Defeasance
26031 43,127.85 7,750,000 71.61% 1.26 Actual/360 Fee First Defeasance
26032 18,410.92 3,275,000 72.93% 1.26 Actual/360 Fee First Defeasance
26174 24,515.65 4,850,000 67.96% 1.52 Actual/360 Fee First Defeasance
</TABLE>
<PAGE>
EFFECTIVE FREE PREPAY
LOAN LOCKOUT PERIOD WINDOW
NUMBER (MOS.) (MOS.)
- ------------------------------------------------
5502 120 0
5504 120 0
8643 120 0
9122 120 0
9419 120 0
9675 120 0
11101 177 3
11134 120 0
11505 119 1
12052 120 0
12099 120 0
12101 180 0
12130 120 0
16398 120 0
16416 120 0
16465 120 0
16953 120 0
16958 120 0
17154 120 0
17553 119 1
17583 117 3
17660 117 3
17718 120 0
17875 120 0
17877 120 0
17923 117 3
17927 120 0
17961 120 0
17962 120 0
18041 117 3
18066 120 0
18113 120 0
18137 120 0
18173 120 0
18332 120 0
18346 120 0
25024 120 0
25069 120 0
25078 120 0
25117 120 0
25118 57 3
25144 180 0
25165 120 0
25195 180 0
25271 120 0
25312 120 0
25352 120 0
25387 120 0
25423 120 0
25445 120 0
25451 120 0
25479 120 0
25485 120 0
25489 59 1
25508 120 0
25557 120 0
25559 114 6
25577 120 0
25589 120 0
25609 120 0
25675 120 0
25714 120 0
25742 120 0
25764 119 1
25959 119 1
26031 120 0
26032 120 0
26174 120 0
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
(WELLS FARGO LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of
July 1, 1999, between Wells Fargo Bank, National Association (the "Seller"), and
Bear Stearns Commercial Mortgage Securities Inc. (the "Purchaser").
The Seller agrees to sell and the Purchaser agrees to purchase
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of July 1, 1999 (the "Cut-Off Date"),
between the Purchaser, as depositor, Wells Fargo Bank, National Association, as
servicer (the "Servicer"), GMAC Commercial Mortgage Corporation, as special
servicer (the "Special Servicer"), Norwest Bank, Minnesota, National
Association, as paying agent, LaSalle National Bank, as trustee (the "Trustee")
and ABN Amro Bank, N.V., as fiscal agent (the "Fiscal Agent"). In exchange for
the Mortgage Loans and certain other mortgage loans (the "Bear Stearns Mortgage
Loans"), the Trust will issue to the Purchaser pass-through certificates to be
known as and Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-WF2 (the "Certificates"). The
Certificates will be issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall
have the meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class B, Class C, Class D, Class E,
Class F and Class X Certificates (the "Public Certificates") will be sold by the
Purchaser to Bear Stearns & Co., Inc. ("Bear Stearns"), Morgan Stanley & Co.
Incorporated ("Morgan") and Norwest Investment Services, Inc. ("Norwest")
(collectively, the "Initial Purchasers") pursuant to an Underwriting Agreement,
between the Purchaser and the Initial Purchasers, dated as of June __, 1999 (the
"Underwriting Agreement") and the Class G, Class H, Class I, Class J, Class K,
Class L, Class M, Class R-I, Class R-II and Class R-III Certificates (the
"Private Certificates") will be sold by the Purchaser to Bear Stearns pursuant
to a Certificate Purchase Agreement, between the Purchaser and Bear Stearns,
dated as of June 15, 1999 (the "Certificate Purchase Agreement"). The Initial
Purchasers will offer the Public Certificates for sale publicly pursuant to a
Prospectus dated August 18, 1998 ("the "Prospectus"), as supplemented by a
preliminary Prospectus Supplement dated June 9, 1999 (such Prospectus,
preliminary Prospectus Supplement and the diskette delivered therewith,
collectively, the "Preliminary Prospectus Supplement") and as further
supplemented and amended by a final Prospectus Supplement dated June 15, 1999
(such Prospectus, final Prospectus Supplement and the diskette delivered
therewith, collectively, the "Final Prospectus Supplement"), and Bear Stearns
will offer the Private Certificates for sale in transactions exempt from the
registration requirements of the Securities Act of 1933 pursuant to a Private
Placement Memorandum to be dated June 15, 1999 (the "Memorandum").
In consideration of the mutual agreements contained herein,
the Seller and the Purchaser hereby agree as follows:
<PAGE>
SECTION 1. Agreement to Purchase. The Seller agrees to sell,
and the Purchaser agrees to purchase, on a servicing released basis, the
Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit 1, as such schedule may be amended to reflect the actual
Mortgage Loans accepted by the Purchaser pursuant to the terms hereof. The sale
of the Mortgage Loans shall take place on June 29, 1999 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date"). The
purchase price to be paid by the Purchaser for the Mortgage Loans shall equal
the amount set forth as such purchase price in the letter between the Seller and
the Purchaser dated as of the Closing Date. Such purchase price shall be paid to
the Seller by wire transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 14), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 14).
SECTION 2. Conveyance of Mortgage Loans. Effective as of the
Closing Date, subject only to receipt of the consideration referred to in
Section 1 hereof and the satisfaction of the conditions specified in Sections 6
and 7 hereof, the Seller does hereby transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule
as of the Closing Date. The Mortgage Loan Schedule, as it may be amended from
time to time, on or prior to the Closing Date shall conform to the requirements
of this Agreement and the Pooling and Servicing Agreement. In connection with
such transfer and assignment, the Seller shall deliver to the Trustee, on behalf
of the Purchaser, on or prior to the Closing Date, the Mortgage Note (as
described in clause (i) below) for each Mortgage Loan. In addition, not later
than the 30th day following the Closing Date, the Seller shall deliver to the
Trustee each of the remaining documents or instruments specified below (with
such exceptions as are permitted by this Section) with respect to each Mortgage
Loan (each, a "Mortgage File"). (The Seller acknowledges that the term "without
recourse" does not modify the duties of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to
the Closing Date are to be held by the Trustee in escrow on behalf of the Seller
at all times prior to the Closing Date. The Mortgage Files shall be released
from escrow upon closing of the sale of the Mortgage Loans and payments of the
purchase price therefor as contemplated hereby. The Mortgage File for each
Mortgage Loan shall contain the following documents:
(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, on its face or by
allonge attached thereto, without recourse, to the order of the Trustee
in the following form: "Pay to the order of LaSalle Bank, National
Association, as trustee for the registered Holders of Bear Stearns
Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through
Certificates, Series 1999-WF2, without recourse, representation or
warranty, express or implied" or if the original Mortgage Note is not
2
<PAGE>
included therein, then a lost note affidavit containing a customary
indemnification provision with a copy of the Mortgage Note attached
thereto;
(ii) the original Mortgage (or a certified copy thereof
from the applicable recording office) and originals (or certified
copies from the applicable recording office) of any intervening
assignments thereof showing a complete chain of assignment from the
originator of the Mortgage Loan to the Seller, in each case with
evidence of recording indicated thereon, or certified by a title
insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered prior to the Closing
Date because of a delay caused by the public recording office where
such original Mortgage has been delivered for recordation or because
the original Mortgage has been lost, the Seller shall 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 shall deliver or cause to
be delivered 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 Stearns Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 1999-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 shall
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;
3
<PAGE>
(v) an original assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage), in
recordable form, executed by the Seller in favor of the Trustee (in
such capacity);
(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, executed by the Seller in favor of the Trustee (in
such capacity);
(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, or if the policy has not yet
been issued, an original or copy of a written commitment, interim
binder or the pro forma title insurance policy, dated as of the date on
which the related Mortgage Loan was funded with the original title
insurance policy to follow within 180 days of the Closing Date or a
preliminary title report with an original title insurance policy to
follow within 180 days of the Closing Date;
(x) the original or a copy of any guaranty of the
obligations of the Mortgagor under the Mortgage Loan;
(xi) all UCC Financing Statements, assignments thereof and
continuation statements, or copies thereof, sufficient to perfect (and
maintain the perfection of) the security interest held by the
originator of the Mortgage Loan (and each assignee prior to the
Trustee) in and to the personalty of the Mortgagor at the Mortgaged
Property (in each case with evidence of filing thereon), and to
transfer such security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, any Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loan with Additional Debt
that is subordinate to such Mortgage Loan, any subordination agreement,
pursuant to which such Additional Debt is subordinated to such Mortgage
Loan;
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(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 survey of the related Mortgaged Property;
(xvi) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xvii) an original or copy of any lock-box agreements,
intercreditor agreements and management agreements related to any
Mortgage Loan;
(xviii) an original or copy of any environmental reports and
environmental indemnification agreements related to any Mortgage Loan;
and
(xix) an original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, together
with the original supporting documentation evidencing a beneficial
transfer, in favor of "LaSalle Bank, National Association, as trustee
for Bear Stearns Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 1999-WF2.
"Officer's Certificate" shall mean a certificate signed by one
or more of the Chairman of the Board, any Vice Chairman, the President, any
Senior Vice President, any Vice President, any Assistant Vice President, any
Treasurer, any Assistant Treasurer or any Servicing Officer (as defined in the
Pooling and Servicing Agreement).
The assignment of Mortgage, assignment of Assignment of Leases
and assignment of UCC financing statement referred to in clauses (iv), (v),
(vii) and (xi) may be in the form of a single instrument assigning the Mortgage,
Assignment of Leases and UCC financing statement to the extent permitted by
applicable law. The Seller will deliver the original Mortgage Note to the
Trustee, on behalf of the Purchaser, endorsed in blank, to effect the transfer
to the Purchaser of the Mortgage Notes and all related deeds of trust, mortgages
and other loan documents specified above. Concurrently herewith, the Purchaser
has contracted to sell the Mortgage Loans to the Trustee on behalf of the
Certificateholders. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, the Seller shall
execute, in accordance with the third succeeding paragraph, assignments of
mortgages, the assignments of leases (to the extent separate from the mortgages)
and assignments of UCC financing statements relating to the Mortgage Loans
naming the Trustee on behalf of the Certificateholders as assignee.
Notwithstanding the fact that such assignments of mortgages, assignments of
leases (to the extent separate from the assignments of mortgages) and the
assignments of UCC financing statements shall name the Trustee on behalf of the
Certificateholders as the assignee, the parties hereto acknowledge and agree
that the Mortgage Loans shall for all purposes be deemed to have been
transferred from the Seller to the Purchaser and from the Purchaser to the
Trustee on behalf of the Certificateholders.
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If the Seller cannot deliver, or cause to be delivered, as to
any Mortgage Loan, the original Mortgage Note, the Seller shall deliver a copy
or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed and
indemnification of the Purchaser and of the Trustee on behalf of the Trust Fund
against any losses that the Trust Fund may incur by reason of such lost or
destroyed Mortgage Note. If the Seller cannot deliver, or cause to be delivered,
as to any Mortgage Loan, any of the documents and/or instruments referred to in
clauses (ii), (iv), (vi), (vii) and (viii) above, with evidence of recording
thereon, solely because of a delay caused by the public recording office where
such document or instrument has been delivered for recordation, the delivery
requirements of this Mortgage Loan Purchase Agreement shall be deemed to have
been satisfied as to such non-delivered document or instrument provided that a
photocopy of such non-delivered document or instrument (certified by the Seller
to be a true and complete copy of the original thereof submitted for recording)
is delivered to the Purchaser, the Trustee or a Custodian appointed thereby on
or before the Closing Date, and either the original of such non-delivered
document or instrument, or a photocopy thereof (certified by the appropriate
county recorder's office, in the case of the documents and/or instruments
referred to in clause (ii) above to be a true and complete copy of the original
thereof submitted for recording), with evidence of recording thereon, is
delivered to the Purchaser, the Trustee or such Custodian within 180 days of the
Closing Date (or within such longer period after the Closing Date as the
Purchaser may consent to, which consent shall not be unreasonably withheld so
long as the Seller is, as certified in writing to the Purchaser and the Trustee
no less often than every 90 days, in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy). If the Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the
documents and/or instruments referred to in the definition of "Mortgage File",
with evidence of recording thereon, for any other reason, including, without
limitation, that such non-delivered document or instrument has been lost, the
delivery requirements of this paragraph shall be deemed to have been satisfied
as to such non-delivered document or instrument and such non-delivered document
or instrument shall be deemed to have been included in the Mortgage File,
provided that a photocopy of such non-delivered document or instrument (with
evidence of recording thereon and certified in the case of the documents and/or
instruments referred to in clause (ii) above by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Purchaser, the Trustee or a
Custodian appointed thereby on or before the Closing Date together with an
affidavit certifying that the original thereof has been lost or destroyed. With
respect to any Mortgage Loan, notwithstanding the foregoing, the Seller may
deliver a UCC-3 on or before the Closing Date that does not contain the filing
information for the related UCC-1 and/or UCC-2 if such UCC-1 and/or UCC-2 has
not been returned to the Seller by the applicable filing office, and the Seller
may deliver an assignment referred to in clauses (iii), (v) or (vii) above that
does not contain the recording information for the related Mortgage, Assignment
of Leases or Security Agreement, as applicable, if such Mortgage, Assignment of
Leases or Security Agreement has not been returned to the Seller by the
applicable recording office. The Seller hereby authorizes the Purchaser, acting
in its stead and on its behalf, to fill in any missing filing or recording
information or any instrument or document required to be delivered pursuant to
this paragraph.
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Except under the circumstances provided for in the last
sentence of this paragraph, the Seller shall as to each Mortgage Loan, promptly
(and in any event within 45 days of the later of the Closing Date and the
Purchaser's and Trustee's actual receipt of the related documents) cause to be
submitted for recording or filing, as the case may be, in the appropriate public
office for real property records or UCC Financing Statements, as appropriate,
each assignment referred to in clauses (iii), (v) and (vii) above and each UCC-3
to the Trustee. Each such assignment shall reflect that it should be returned by
the public recording office to the Trustee or its designee following recording,
and each such UCC-3 shall reflect that the file copy thereof should be returned
to the Trustee or its designee following filing. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Purchaser, the Trustee or a Custodian or its
agent shall prepare or cause to be prepared a substitute therefor or cure such
defect, as the case may be, and thereafter the Trustee shall upon receipt
thereof cause the same to be duly recorded or filed, as appropriate. The
Purchaser shall execute, or cause the Seller to execute any replacement document
or instrument being filed in substitution for any such lost or returned
unrecorded or unfiled document or instrument and assist the Purchaser, the
Trustee or a Custodian or its agent in recording or filing such documents or
instruments. Notwithstanding the foregoing, there shall be no requirement to
record any assignment to the Trustee referred to in clause (iii), (v) or (vii)
above, or to file any UCC-3 referred to in clause (xi) above in those
jurisdictions where, in the written opinion of local counsel of Purchaser, the
Trustee or a Custodian acceptable to the Purchaser and the Trustee, such
recordation and/or filing is not required to protect the Purchaser's or the
Trustee's interest in the Mortgage Loans against sale, further assignment,
satisfaction or discharge by the Seller or the Purchaser.
The Trustee, as assignee or transferee of the Purchaser for
the benefit of the holders of the Certificates, shall be entitled to all
scheduled payments of principal due after the Cut-Off Date, all other payments
of principal collected after the Cut-Off Date (other than scheduled payments of
principal due on or before the Cut-Off Date), and all payments of interest on
the Mortgage Loans allocable to the period commencing on the Cut-Off Date. All
scheduled payments of principal and interest due on or before the Cut-Off Date
and collected after the Cut-Off Date shall belong to the Seller.
All documents relating to the Mortgage Loans that are not
required to be delivered to the Trustee, shall be shipped by the Seller to the
Servicer, on behalf of the Purchaser, on or prior to the Closing Date.
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and the other contents of the related Mortgage File shall be vested in
the Purchaser and its assigns, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller shall immediately vest in the Purchaser and its
assigns, and shall be delivered promptly by the Seller either to the Trustee or
the Servicer as set forth herein. The Seller's records shall reflect the
transfer of each Mortgage Loan to the Purchaser and its assigns as a sale.
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The Seller shall cause all funds on deposit in escrow accounts
maintained with respect to the Mortgage Loans in the name of the Seller or any
other name to be transferred to the Servicer promptly after the Closing Date,
but in all events within three (3) business days after the Closing Date.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Purchaser, by the
Seller as provided in this Section 2 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 Seller to the Purchaser to secure a debt or other
obligation of the Seller. 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 Seller, 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:
(i) this Agreement shall be deemed to be a security
agreement; and
(ii) the conveyance provided for in this Section 2 shall be
deemed to be a grant by the Seller to the Purchaser, of a security
interest in all of the Seller's right, title, and interest, whether now
owned or hereafter acquired, in and to:
(A) 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 following property: the Mortgage Loans identified
on the Mortgage Loan Schedule, including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and
other insurance policies, all distributions with respect
thereto payable on and after the Cut-off Date, all substitute
or replacement Mortgage Loans and all distributions with
respect thereto, and the Mortgage Files;
(B) 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
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
The possession by the Purchaser or its designee 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
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pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-305 and 9-115 thereof) as in force in the relevant jurisdiction.
Notwithstanding the foregoing, the Seller makes no representation or warranty as
to the perfection of any such security interest.
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 Purchaser or its designee, as applicable, for the purpose of
perfecting such security interest under applicable law.
The Seller shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the property
described above, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. In such case, the Seller shall
file 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 such security interest in such property. In connection herewith, the
Purchaser shall have all of the rights and remedies of a secured party under the
Uniform Commercial Code as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, the
Purchaser shall not be required to purchase any Mortgage Loan as to which any
Mortgage Note (as described in clause (i) above) required to be delivered to the
Trustee or the Servicer pursuant to this Section 2 on or before the Closing Date
is not so delivered or deemed to be delivered, or is not properly executed or is
defective on its face, and the Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of the Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
SECTION 3. Examination of Mortgage Files and Due Diligence
Review. The Seller shall (i) deliver to the Purchaser on or before the Closing
Date a diskette acceptable to the Purchaser which contains such information
about the Mortgage Loans as may be reasonably requested by the Purchaser, (ii)
deliver to the Purchaser investor files (collectively the "Collateral
Information") with respect to the assets proposed to be included in the Mortgage
Pool and made available at the Purchaser's headquarters in New York, and (iii)
otherwise cooperate fully with the Purchaser in its examination of the credit
files, underwriting documentation and Mortgage Files for the Mortgage Loans and
its due diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Initial Purchaser, the Trustee,
the Special Servicer and each Rating Agency to examine and audit all books,
records and files pertaining to the Mortgage Loans, the Seller's underwriting
procedures and the Seller's ability to perform or observe all of the terms,
covenants
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and conditions of this Agreement. Such examinations and audits shall take place
at one or more offices of the Seller during normal business hours and shall not
be conducted in a manner that is disruptive to the Seller's normal business
operations upon reasonable advance prior notice. In the course of such
examinations and audits, the Seller will make available to such representatives
of any of the Purchaser, each Initial Purchaser, the Trustee, the Special
Servicer and each Rating Agency reasonably adequate facilities, as well as the
assistance of a sufficient number of knowledgeable and responsible individuals
who are familiar with the Mortgage Loans and the terms of this Agreement, and
the Seller shall cooperate fully with any such examination and audit in all
material respects. On or prior to the Closing Date, the Seller shall provide the
Purchaser with all material information regarding the Seller's financial
condition and access to knowledgeable financial or accounting officers for the
purpose of answering questions with respect to the Seller's financial condition,
financial statements as provided to the Purchaser or other developments
affecting the Seller's ability to consummate the transactions contemplated
hereby or otherwise affecting the Seller in any material respect.
The Purchaser shall keep confidential any information
regarding the Seller that has been delivered into the Purchaser's possession and
that is not otherwise publicly available; provided, however, that such
information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum, the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information.
SECTION 4. Representations and Warranties of the Seller and
the Purchaser. (a) To induce the Purchaser to enter into this Agreement, the
Seller hereby makes for the benefit of the Purchaser and its assigns with
respect to each Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty) each of
the representations and warranties set forth on Exhibit 2 hereto, subject to any
exceptions set forth on Schedule 1 to Exhibit 2 hereto, and hereby further
represents and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing
as a national banking association in good standing under the laws of
the United States of America. The Seller has the requisite power and
authority and legal right to own the Mortgage Loans and to transfer and
convey the Mortgage Loans to the Purchaser and has the requisite power
and authority to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of,
this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, and assuming the due
authorization, execution and delivery hereof by the Purchaser, this
Agreement constitutes the valid, legal and binding agreement of the
Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (a) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (b) other laws
relating to or affecting the rights of creditors generally, (c) general
equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law) or (d) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability
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of the provisions of this Agreement that purport to provide
indemnification from liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court, is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (a) such qualifications as may be
required under state securities or blue sky laws, (b) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (c) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained and (d) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the
Purchaser, nor the execution, delivery or performance of this Agreement
by the Seller, conflicts or will conflict with, results or will result
in a breach of, or constitutes or will constitute a default under (a)
any term or provision of the Seller's articles of association or
by-laws, (b) any term or provision of any material agreement, contract,
instrument or indenture, to which the Seller is a party or by which it
or any of its assets is bound or result in the creation or imposition
of any lien, charge or encumbrance upon any of its property pursuant to
the terms of any such indenture, mortgage, contract or other
instrument, other than pursuant to this Agreement, or (c) after giving
effect to the consents or taking of the actions contemplated in
subsection (iii), any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (a), (b) or (c) above, any conflict,
breach or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the
consummation of the transactions contemplated hereby by the Seller or
result in any material adverse change in the business, operations,
financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer
of the Mortgage Loans to the Purchaser or the execution or delivery by,
or enforceability against, the Seller of this Agreement or have an
effect on the financial condition of the Seller that would materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans
pursuant to this Agreement will effect a transfer by the Seller of all
of its right, title and interest in and to the Mortgage Loans to the
Purchaser.
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(vii) To the Seller's knowledge, the Mortgage Information
(as defined in that certain indemnification agreement, dated as of July
1, 1999, between the Seller, the Purchaser and the Initial Purchasers
(the "Indemnification Agreement")) does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
To induce the Purchaser to enter into this Agreement, the
Seller hereby covenants that the foregoing representations and warranties and
those set forth on Exhibit 2 hereto will be true and correct in all material
respects on and as of the Closing Date with the same effect as if made on the
Closing Date.
Each of the representations, warranties and covenants made by
the Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(b) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date hereof:
(i) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(ii) The Purchaser has full power and authority to acquire
the Mortgage Loans, to execute and deliver this Agreement and to enter
into and consummate all transactions contemplated by this Agreement.
The Purchaser has duly and validly authorized the execution, delivery
and performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court, is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby which has not been obtained or made by the
Purchaser.
(iv) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the Purchaser
will violate the Purchaser's certificate of incorporation or by-laws or
constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which the
Purchaser is a party or which may be applicable to the Purchaser or its
assets.
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(v) The Purchaser is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, rule, writ, injunction, or any order or decree
of any court, or any order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or
its assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
(vi) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
condition of the Purchaser that would materially and adversely affect
the ability of the Purchaser to perform its obligation under this
Agreement.
To induce the Seller to enter into this Agreement, the
Purchaser hereby covenants that the foregoing representations and warranties
will be true and correct in all material respects on and as of the Closing Date
with the same effect as if made on the Closing Date.
Each of the representations and warranties made by the
Purchaser pursuant to this Section 4(b) shall survive the purchase of the
Mortgage Loans.
SECTION 5. Remedies Upon Breach of Representations and
Warranties Made by the Seller. (a) It is hereby acknowledged that the Purchaser
shall make for the benefit of the holders of the Certificates, whether directly
or by way of assignment of its rights hereunder to the Trustee, the
representations and warranties set forth on Exhibit 2 hereto.
(b) It is hereby further acknowledged that if any document
required to be delivered to the Trustee pursuant to Section 2 is not delivered
as and when required, not properly executed or is defective on its face, or if
there is a breach of any of the representations and warranties required to be
made by the Seller regarding the characteristics of the Mortgage Loans and/or
the related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either
case such defect or breach materially and adversely affects the interests of the
holders of the Certificates (a "Material Document Defect" and a "Material
Breach", respectively), the party discovering such Material Document Defect or
Material Breach shall promptly notify the other parties and within 90 days of
the earlier of discovery by the Seller or receipt by the Seller of notice of
such Material Document Defect or such Material Breach, as the case may be, the
Seller shall be required to cure such Material Document Defect or Material
Breach; provided, however, the Purchaser or its assignee shall extend the cure
period an additional 90 days if the Seller certifies to the Purchaser or its
assignee, as applicable, that the Seller has been diligently attempting to cure
such breach within the 90 day period.
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The Seller hereby covenants and agrees that, if any such
Material Document Defect or Material Breach cannot be corrected or cured within
the above cure periods, the Seller shall, not later than 90 days after its
discovery or the Purchaser's or its assignee's notice to it respecting such
Material Document Defect or Material Breach, within the three-month period (or
such longer period as contemplated by the preceding paragraph) 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)), either (i) repurchase the related Mortgage Loan from the Purchaser
or its assignee at the Purchase Price as defined in the Pooling and Servicing
Agreement, or (ii) at its option replace any Mortgage Loan to which such defect
relates with a Qualifying Substitute Mortgage Loan. If such defect would cause
the Mortgage Loan to be other than a "qualified mortgage" (as defined in the
Code), then notwithstanding the previous sentence, repurchase or substitution
must occur within the sooner of (i) 90 days from the date the Seller was
notified of the defect or (ii) two years from the Closing Date. The Seller
agrees that any such substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
The obligations of the Seller set forth in this Section 5(b)
to cure a Material Document Defect or a Material Breach or repurchase or replace
a defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach or
breach of the representations and warranties set forth in Exhibit 2 hereto;
provided, that this limitation shall not in any way limit the Purchaser's rights
or remedies upon breach of any other representation or warranty or covenant by
the Seller set forth in this Agreement (other than those set forth in Exhibit
2).
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the Servicer or the Special Servicer on its behalf) shall give
prompt written notice to the Seller of its discovery of any Material Document
Defect or Material Breach and prompt notice to the Seller in the event that any
Mortgage Loan becomes a Specially Serviced Mortgage Loan (as defined in the
Pooling and Servicing Agreement). The Pooling and Servicing Agreement shall
provide that any of the following Document Defects shall be conclusively
presumed to be Material Document Defects: (a) the absence from the Mortgage File
of the original signed Mortgage Note, unless the Mortgage File contains a signed
lost note affidavit 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.
(d) If the Seller repurchases any Mortgage Loan pursuant to
this Section 5, the Purchaser or its assignee, following receipt by the Trustee
of the Purchase Price therefor, promptly shall deliver or cause to be delivered
to the Seller, all Mortgage Loan documents with respect to such Mortgage Loan,
and each document that constitutes a part of the Mortgage File
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that was endorsed or assigned to the Trustee shall be endorsed and assigned to
the Seller in the same manner.
SECTION 6. Closing. The closing of the sale of the Mortgage
Loans shall be held at the offices of O'Melveny & Myers LLP, New York, New York,
at 10:00 a.m. New York time, on the Closing Date.
The closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller
and the Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date.
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and acceptable to the Seller or the
Purchaser, as applicable, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the
Purchaser or its designee all documents required to be delivered to the
Purchaser as of the Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Mortgage Information (as
defined in the Indemnification Agreement) to be disclosed in the Memorandum and
the Prospectus Supplement.
(e) All other terms and conditions of this Agreement
required to be complied with on or before the Closing Date shall have been
complied with, and the Seller and the Purchaser shall have the ability to comply
with all terms and conditions and perform all duties and obligations required to
be complied with or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable
by it to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned
ratings by each Rating Agency no lower than the ratings specified for each such
Class in the Memorandum and the Prospectus Supplement.
(h) Neither Initial Purchaser shall have terminated the
Underwriting Agreement and Bear Stearns shall not have terminated the
Certificate Purchase Agreement.
(i) The Seller shall have received the purchase price for
the Mortgage Loans pursuant to Section 1 hereof.
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(j) The Pooling and Servicing Agreement shall have been
executed and delivered by the parties thereto.
(k) The Seller shall have executed and delivered the
Indemnification Agreement.
All parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall
consist of the following:
(a) This Agreement duly executed by the Purchaser and the
Seller.
(b) A certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser and its successors and assigns may rely, to the effect that: (a) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (b) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's
articles of association and by-laws.
(d) A certificate of existence for the Seller from the
Comptroller of the Currency, dated not earlier than 30 days prior to the Closing
Date.
(e) A certificate of the Assistant Secretary of the Seller,
dated the Closing Date, and upon which the Purchaser may rely, to the effect
that each individual who, as an officer or representative of the Seller, signed
this Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of in-house senior counsel to the Seller,
dated the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller continues to hold a valid certificate to do
business as a national banking association under the laws of the United
States and has full corporate power and authority to enter into and
perform its obligations under this Agreement and the Indemnification
Agreement.
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(ii) This Agreement and the Indemnification Agreement have
been duly authorized, executed and delivered by the Seller.
(iii) No consent, approval, authorization or order of any
federal court or governmental agency or body is required for the
consummation by the Seller of the transactions contemplated by the
terms of this Agreement or the Indemnification Agreement except any
approvals as have been obtained.
(iv) The consummation by the Seller of any of the
transactions contemplated by the terms of this Agreement and the
Indemnification Agreement does not conflict with or result in a breach
or violation of, or constitute a default under, the charter documents
of the Seller.
(v) To his knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity
of this Agreement or the Indemnification Agreement or (b) which
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement.
Such opinion may express its reliance as to factual matters
on, among other things specified in such opinion, the representations and
warranties made by, and on certificates or other documents furnished by officers
of, the parties to this Agreement.
In rendering the opinions expressed above, such counsel may
limit such opinions to matters governed by the federal laws of the United
States.
(g) An opinion of Orrick, Herrington & Sutcliffe LLP,
special counsel to the Seller, dated the Closing Date, substantially to the
effect (with such changes and modifications as the Purchaser may approve and
subject to such counsel's reasonable qualifications) that this Agreement and the
Indemnification Agreement are valid, legal and binding agreements of the Seller,
enforceable against the Seller in accordance with their respective terms.
Such opinion may express its reliance as to factual matters
on, among other things specified in such opinion, the representations and
warranties made by, and on certificates or other documents furnished by officers
of, the parties to this Agreement and the opinion of in-house senior counsel to
the Seller referred to in clause (f) above.
In rendering the opinion expressed above, such counsel may
limit such opinions to matters governed by the laws of the State of New York and
the federal laws of the United States of America.
(h) Such other opinions of counsel as any Rating Agency may
request in connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller's execution and delivery of, or performance under, this
Agreement.
(i) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of
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which they determined that certain information of an accounting, financial or
statistical nature set forth in the Memorandum and the Prospectus Supplement
agrees with the records of the Seller.
(j) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(k) An officer's certificate of the Purchaser, dated as of
the Closing Date, with the resolutions of the Purchaser authorizing the
transactions described herein attached thereto, together with certified copies
of the charter, by-laws and certificate of good standing of the Purchaser dated
not earlier than 30 days prior to the Closing Date.
(l) Such other certificates of the Purchaser's officers or
others and such other documents to evidence fulfillment of the conditions set
forth in this Agreement as the Seller or its counsel may reasonably request.
(m) An executed Bill of Sale in the form attached hereto as
Exhibit 4.
SECTION 8. Costs. The Seller shall pay the Purchaser the
costs and expenses as previously agreed to by the Seller and the Purchaser.
SECTION 9. Notices. All communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if (a) personally delivered, (b) mailed by registered or certified mail,
postage prepaid and received by the addressee, (c) sent by express courier
delivery service and received by the addressee, or (d) transmitted by telex or
facsimile transmission (or any other type of electronic transmission agreed upon
by the parties) and confirmed by a writing delivered by any of the means
described in (a), (b) or (c), if (i) to the Purchaser, addressed to and Bear
Stearns Commercial Mortgage Securities Inc., 245 Park Avenue, New York, New York
10167, Attention: James G. Reichek, with a copy to Joseph Jurkowski, Esq.,
telecopy number: (212) 270-2619 (or such other address as may hereafter be
furnished in writing by the Purchaser), or (ii) if to the Seller, addressed to
the Seller at 555 Montgomery Street, 10th Floor, San Francisco, California,
Attention: Jon Salmon (or to such other address as the Seller may designate in
writing) with copies to the attention of Robert Darling, Esq., Wells Fargo Bank,
National Association, 633 Folsom Street, 7th Floor, San Francisco, California
94107-3600.
SECTION 10. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
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SECTION 11. Further Assurances. The Seller and the Purchaser
each agree to execute and deliver such instruments and take such actions as the
other may, from time to time, reasonably request in order to effectuate the
purpose and to carry out the terms of this Agreement and the Pooling and
Servicing Agreement.
SECTION 12. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS,
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE
OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that the rights and obligations of the
Purchaser pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12
hereof may be assigned to the Trustee as may be required to effect the purposes
of the Pooling and Servicing Agreement and, upon such assignment, the Trustee
shall succeed to the rights and obligations hereunder of the Purchaser. No owner
of a Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor because of such ownership.
SECTION 15. Modifications. (a) Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought. (b)
(b) The provisions of Sections 2, 4(a) (other than clause
(vii), 5, 11, 12, 14 and 15 of this Agreement may not be changed in any manner
which would have a material adverse effect on Holders of Certificates without
the prior written consent of the Trustee. The Trustee shall be protected in
consenting to any such change to the same extent provided in the Pooling and
Servicing Agreement.
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SECTION 16. Miscellaneous. This Agreement may be executed in
two or more counterparts, each of which when so executed and delivered shall be
an original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder. This Agreement shall be
continuously maintained as an official record of the Seller from and after the
time of its execution.
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IN WITNESS WHEREOF, the Purchaser and the Seller have caused
this Agreement to be executed by their respective duly authorized officers as of
the date first above written.
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ Jon W. Salmon
--------------------------------
Name: Jon W. Salmon
Title: Senior Vice President
BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ Michael A. Forastiere
--------------------------------
Name: Michael A. Forastiere
Title: Vice President
<PAGE>
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(Representations and Warranties with respect to Wells Fargo Loans)
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is true and correct in all material respects as of the date of
this Agreement and as of the Cut-off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph (13) below, enforceable first priority lien
upon the related Mortgaged Property, which includes all buildings located
thereon and all fixtures thereto, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, and (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt (the foregoing items (a) through
(d) being herein referred to as the "Permitted Encumbrances"). The related
assignment of such Mortgage executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Mortgage. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and, subject to the exceptions set forth in
paragraph (13) below, enforceable security interest in favor
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of the holder thereof in all of the related Mortgagor's personal property used
in, and reasonably necessary to operate, the related Mortgaged Property. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, and such security interest is a first priority security interest,
subject to any prior purchase money security interest in such personal property
and any personal property leases applicable to such personal property.
Notwithstanding the foregoing, no representation is made as to the perfection of
any security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing of Uniform
Commercial Code financing statements are required in order to effect such
perfection.
5. Assignment of Leases and Rents. The Assignment of Leases set forth
in the Mortgage and related to and delivered in connection with each Mortgage
Loan establishes and creates a valid, subsisting and, subject to the exceptions
set forth in paragraph (13) below, enforceable first priority lien and first
priority security interest in the related Mortgagor's interest in all leases,
sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same. The related assignment of any Assignment of Leases, not
included in a Mortgage, executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in material part,
and the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in material part, nor has any instrument been executed
that would effect any such satisfaction, cancellation, subordination, rescission
or release, except for any partial reconveyances of real property that do not
materially adversely affect the value of the property. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived,
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File.
7. Condition of Property; Condemnation. Except as set forth in an
engineering report prepared in connection with the origination of the related
Mortgage Loan, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage that would materially and adversely affect its value as
security for the related Mortgage Loan. The Seller has received no notice of the
commencement of any proceeding for the condemnation of all or any material
portion of any Mortgaged Property. To the Seller's knowledge (based on surveys
and/or title insurance obtained in connection with the origination of the
Mortgage Loans), as of the date of the origination of each Mortgage Loan, all of
the material improvements on the related Mortgaged Property which were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and adversely
affect the value or marketability of such
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Mortgaged Property, and no improvements on adjoining properties materially
encroached upon such Mortgaged Property so as to materially and adversely affect
the value or marketability of such Mortgaged Property, except those
encroachments that are insured against by the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a mark-up title insurance commitment (on which the required premium
has been paid) which evidences such title insurance policy (the "Title Policy")
in the original principal amount of the related Mortgage Loan after all advances
of principal. Each Title Policy insures that the related Mortgage is a valid
first priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph (13)
below) such as to render the rights and remedies of the holder thereof adequate
for the practical realization against the related Mortgaged Property of the
principal benefits of the security intended to be provided thereby. Each
Mortgage Loan contains a "due on sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of the Mortgage Loan
if, without prior written consent of the holder of the Mortgage, the property
subject to the Mortgage or any material portion thereof, is transferred, sold or
encumbered other than for the junior liens listed on Schedule B hereto;
provided, however, that certain Mortgage Loans provide a mechanism for the
assumption of the loan by a third party upon the Mortgagor's satisfaction of
certain conditions precedent, and upon payment of a transfer fee, if any.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
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12. Environmental Conditions. An environmental site assessment was
performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance, or (ii) the related Mortgagor was required either to provide
additional security which was deemed to be sufficient by the originator to
remediate the problem and/or to obtain an operations and maintenance plan where
such operations and maintenance plan was recommended in the related
Environmental Report.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
document conveyed to the Depositor with respect to a Mortgage Loan that
evidences or secures such Mortgage Loan and was executed by or on behalf of the
related Mortgagor is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally, and
by general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other document.
14. Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage, to be insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of the principal balance of the
related Mortgage Loan and the replacement cost of the Mortgaged Property, with
no deduction for depreciation, and not less than the amount necessary to avoid
the operation of any co-insurance provisions with respect to the Mortgaged
Property; (b) a business interruption or rental loss insurance policy, in an
amount at least equal to six months of operations of the Mortgaged Property; (c)
a flood insurance policy (if any portion of buildings or other structures on the
Mortgaged Property are located in an area identified by the Federal Emergency
Management Agency as having special flood hazards); and (d) a comprehensive
general liability insurance policy in amounts as are generally required by
commercial mortgage lenders, and in any event not less than $1 million per
occurrence. Such insurance policy contains a standard mortgagee clause that
names the mortgagee (in its capacity as mortgagee or loss payee, as applicable)
as an additional insured and requires prior notice to the holder of the Mortgage
of termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related
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Mortgagor to maintain all such insurance and, upon such Mortgagor's failure to
do so, authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from such
Mortgagor. Each Mortgage provides that casualty insurance proceeds will be
applied either to the restoration or repair of the related Mortgaged Property or
to the reduction of the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property which are or may become a lien of priority equal to or higher than
the lien of the related Mortgage. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered unpaid
until the date on which interest and/or penalties would be first payable
thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), of the related
Mortgagor's interest in the Ground Lease but is not secured by the related fee
interest in such Mortgaged Property (the "Fee Interest"):
(a) Such Ground Lease or a memorandum thereof has been or
will be duly recorded; such Ground Lease (or the related estoppel
letter or lender protection agreement between the Seller and related
lessor) permits the current use of the Mortgaged Property and permits
the interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment terms of
such Ground Lease since the origination of the related Mortgage Loan,
with the exception of material changes reflected in written instruments
that are a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not
subject to any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and assigns upon notice
to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing Date)
and, in the event that it is so assigned, is further assignable by the
Purchaser and its successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor, or if such lessor's
consent is required it cannot be unreasonably withheld;
(d) Such Ground Lease is in full force and effect and no
material amendment to such Ground Lease is binding on mortgagee unless
the mortgagee has consented thereto, and the Seller has received no
notice that an event of default has occurred thereunder, and, to the
Seller's knowledge, there exists no condition that, but for the
2-5
<PAGE>
passage of time or the giving of notice, or both, would result in an
event of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other
agreement, (A) requires the lessor under such Ground Lease to give
notice of any default by the lessee to the holder of the Mortgage; and
(B) provides that no notice of termination given under such Ground
Lease is effective against the holder of the Mortgage unless a copy of
such notice has been delivered to such holder and the lessor has
offered or is required to enter into a new lease with such holder on
terms that do not materially vary from the economic terms of the Ground
Lease.
(f) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice
of any such default, before the lessor thereunder may terminate such
Ground Lease;
(g) Except as set forth on Schedule C, such Ground Lease has
an original term (including any extension options set forth therein)
which extends not less than ten years beyond the Maturity Date of the
related Mortgage Loan;
(h) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease interest
will be applied either (A) to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and disburse
such proceeds as the repair or restoration progresses (except in such
cases where a provision entitling a third party to hold and disburse
such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or (B) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon; and
(i) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (ii) at the Closing Date at least equal to 80 percent of
the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien
2-6
<PAGE>
on the real property interest that is senior to the Mortgage Loan and (y) a
proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation described in clauses
(a)(i) and (a)(ii) of this paragraph (13) shall be made on a pro rata basis in
accordance with the fair market values of the Mortgaged Properties securing such
cross-collateralized Mortgage Loans); or (b) substantially all the proceeds of
such Mortgage Loan were used to acquire, improve or protect the real property
which served as the only security for such Mortgage Loan (other than a recourse
feature or other third party credit enhancement within the meaning of Treasury
Regulations Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default or reasonably foreseeable default of such Mortgage Loan or (b)
satisfies the provisions of either clause (a)(i) of paragraph (19) above
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (a)(ii) of paragraph (19) above, including the
proviso thereto.
21. Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, and no rights are outstanding that under law could
give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized
or cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property from the lien of the
related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A require the mortgagee to grant releases of portions of
the related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements and (b) the payment of a release price set forth
therein and prepayment consideration in connection therewith.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD
2-7
<PAGE>
Loan may provide for the accrual of interest at an increased rate after the
Anticipated Repayment Date) or for any contingent or additional interest in the
form of participation in the cash flow of the related Mortgaged Property.
27. No Material Default. To the Seller's best knowledge, there exists
no material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any of paragraphs (3), (7),
(12), (14), (15), (16) and (17) hereof.
28. Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be inspected
each Mortgaged Property in connection with the origination of the related
Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination.
30. Junior Liens. Only Mortgage Loans identified on Schedule B permit
the related Mortgaged Property to be encumbered by a lien junior to the lien of
the related Mortgage and describes any requirements relating to debt service
coverage or similar criteria needed to be satisfied to obtain such junior lien.
Except as otherwise set forth in Schedule B, the Seller has no knowledge that
any of the Mortgaged Properties is encumbered by any lien junior to or in parity
with the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgage Loan or the
validity or enforceability of the related Mortgage or that might materially and
adversely affect the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by the
Seller have been in all material respects legal, proper and prudent and have met
customary industry standards.
33. Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan, the related
Mortgagor was in possession of all material
2-8
<PAGE>
licenses, permits and franchises required by applicable law for the ownership
and operation of the related Mortgage Property as it was then operated.
34. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by any collateral (including any mortgage) that is not included in
the Trust.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $20 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity, separate
and apart from any other person.
36. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes the non-recourse
obligations of the related obligors thereon except that either (i) such
provision does not apply in the case of fraud by the Mortgagor or (ii) such
documents provide that the Mortgagor shall be liable to the holder of the
Mortgage Loan for losses incurred as a result of fraud by the Mortgagor.
37. Defeasance. Each Mortgage Loan which grants the related Mortgagor
the option to obtain the release of the lien of the Mortgage on the related
Mortgaged Property by substituting U.S. Treasury securities for such Mortgaged
Property, as collateral for the related Mortgage Notes (i) does not, as a
factual matter, permit defeasance prior to the date such defeasance would be
permitted under the applicable REMIC provisions and (ii) requires the delivery
of a Rating Agency Confirmation or requires that (A) the replacement collateral
consist of U.S. Treasury securities in an amount sufficient to make all
scheduled payments under the Mortgage Note when due, as certified by an
independent accounting firm, (B) the Mortgage Loan be assumed by a
single-purpose entity that is established for the purpose of holding Defeasance
Collateral with respect to one or more Mortgage Loans, and (C) counsel provide
an opinion that the holder of the Mortgage Loan has a perfected security
interest in such collateral prior to any other claim or interest and (iii)
requires the related Mortgagor pay all of the reasonable costs and expenses
incurred in connection with the exercise of such options; and
38. SMMEA Qualification. Each Mortgage Loan was originated by a savings
and loan association, savings bank, commercial bank, credit union, insurance
company, or similar institution which is supervised and examined by a Federal or
State authority, or by a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the National Housing Act.
2-9
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered on this _________ day
of _____, 1999.
SELLER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
By:
-------------------------------------
Name: Jon W. Salmon
Title: Senior Vice President
PURCHASER: BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES INC.
By:
-------------------------------------
Name: James G. Reichek
Title: Executive Vice President
<PAGE>
Schedule A
Loans Requiring the Mortgagee to Grant Releases of Mortgaged Property
The Mortgage Loan identified as on the Mortgage Loan Schedule as Loan
Number 851192 (including 851192A and 851192B)
<PAGE>
Schedule B
List of Junior Liens
None
<PAGE>
Schedule C
List of Loans with Ground Leases
with terms less than 10 years
beyond the Stated Maturity Date
[None]
<PAGE>
EXHIBIT 3
PRICING FORMULATION
3-1
<PAGE>
EXHIBIT 4
BILL OF SALE
1. PARTIES. The parties to this Bill of Sale are the
following:
Seller: Wells Fargo Bank, National Association
Purchaser: Bear Stearns Commercial Mortgage Securities Inc.
2. SALE. For value received, the Seller hereby conveys to the
Purchaser, without recourse, all right, title and interest in and to the
Mortgage Loans identified on Exhibit 1 (the "Mortgage Loan Schedule") to the
Mortgage Loan Purchase Agreement, dated as of July 1, 1999 (the "Mortgage Loan
Purchase Agreement"), between the Seller and the Purchaser and all of the
following property:
(a) 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
following property: the Mortgage Loans identified on the Mortgage Loan
Schedule, including the related Mortgage Notes, Mortgages, security
agreements, and title, hazard and other insurance policies, all
distributions with respect thereto payable on and after the Cut-off
Date, and the Mortgage Files;
(b) 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 property described in clause (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the property
described in clauses (a) and (b) above (but excluding the Purchase Price paid by
the Purchaser to the Seller).
3. PURCHASE PRICE. The amount set forth in the letter between
the Seller and the Purchaser dated the Closing Date.
4. DEFINITIONS. Terms used but not defined herein shall have
the meanings assigned to them in the Mortgage Loan Purchase Agreement.
4-1
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Bill of
Sale to be duly executed and delivered on this _________ day of _____, 1999.
SELLER: WELLS FARGO BANK, NATIONAL
ASSOCIATION
By:
-----------------------------------
Name: Jon W. Salmon
Title: Senior Vice President
PURCHASER: BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES INC.
By:
-----------------------------------
Name: James G. Reichek
Title: Executive Vice President
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
LOAN
NUMBER LOAN NAME ADDRESS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
850937 PADI Building 30151 Tomas Street
850952 Los Angeles Times Building 6710 Variel Avenue
850995 The Cypress Building 19200 Stevens Creek Boulevard
851072 The Pavilion Center 1900-1996 Hacienda Drive
851087 AMC Theatres 10655 Westminster Blvd.
851122 305 Forest Ave 305 Forest Avenue
851129 Milano North 23022 Samuel Street
851171 Milestone Too Shopping Center 4833 South Front Street
851174 Century Park Plaza Office Building 287 Century Circle
851192 Friendswood/Postwood Portfolio
851195 Alta Vista Country Club 777 E. Alta Vista Street
851200 21601 Devonshire Street 21601 Devonshire Street
851203 Rancho Dominquez Industrial Building 3064 East Maria Street
851219 The Village Apartments 11474 Central Ave
851236 Arbor Plaza 23784 West Road
851238 Mountain View Plaza 9812-9832 N. 7th St.
851242 12701 Van Nuys Blvd. 12701 Van Nuys Blvd.
851243 12685 Van Nuys Boulevard 12685 Van Nuys Blvd.
851244 49-51 Strathearn & 50 Moreland 49-51 Strathearn Pl. & 50 Moreland Rd.
851245 27712 Avenue Mentry 27712 Avenue Mentry
851246 Los Alamitos Professional Medical Building 10861 Cherry Street
851248 1371 Beverly Glen Apartments 1371 S. Beverly Glen Blvd
851250 Redlands Apartments 8110 Redlands Street
851252 Rogers Business Center 20401 County Road 81
851256 Johnson Warehouse - Colorado Springs 4225 North Sinton Road
851258 The Design Center at Colorado Springs 5045 List Drive
851260 Technology Park 18450 Technology Drive
851261 Fountains Shopping Center 6218 66th Street
851263 Mountain View Plaza 1121 Valley Boulevard, Ste. A-I
851264 View Point Apartments 10334 Oasis
851265 31240 La Baya Drive 31240 La Baya Drive
851266 Lamar Plaza Apartments 500 W. Lamar
851267 Mckinney Portfolio
851272 Camino Palmero Apartments 1725 Camino Palmero
851273 12959 Oxnard Street 12959 Oxnard Street
851275 United West Group Building 14980 North 78th Way
851278 Arroyo Square Apartments 2431 College Hills Boulevard
851279 Morrison Park Apartments 10932 Morrison Street
851280 Huston Park Apartments 10933 Huston Street
851282 Melrose Place 6511-B Melrose Trail
851283 Tradewinds Apartments 8802 Tradewind Drive
851284 The Tuscany Apartments 1301 West Lynn
851285 Willow Glen Apartments 1301 Sycamore School Road
851286 The Springs 4716 Duval Road
851288 Northdale Commons Apartments 2803-2828 and 11718-11734 Crooked Lake Blvd.
851292 1685 Plymouth 1685 Plymouth
851296 Silver Springs Apartments 7077-7107 North Antioch Ave.
851299 Grand & McFadden Business Park 1101 S. Grand Ave. / 1415 E. McFadden Ave.
851303 West Covina Apartments 1513 West San Bernardino
851305 Marilla Sundance Apartments 9648 Marilla Drive
851306 Spring Woods Apartments 4600 W. Vegas Drive
851307 Irvine-FedEx Building 18651 Von Karman Drive
851308 GI Joe's at Poplar Square SC 2370 Poplar Drive
851310 Part of Liberty Village 13738, 13782, 13790 Bear Valley Rd.
851312 Dolphin & Crane Buildings 2929-2935 East Apache
851317 The Bay Club Hotel & Marina 2131 Shelter Island Drive
851319 Bahia Vista Apartments 674 W. 27th Street
851320 Grant Place Apartments 3518 Grant Avenue
851322 1150 W. Avenue J 1150 W. Avenue J
851323 Scherzinger Lane Apartments 17740 Scherzinger Lane
851327 TCI Call Center 1323 - 34th Avenue East
851328 Maralisa Apartments 6112-6175 Water Lily Commons
851329 Saturn Industrial Center 2751 - 2791 Saturn Street
851330 Town & Country Plaza 1535-1609 Vassar Street
851333 Anchor Business Park 2088-2193 Anchor Court
851334 Security Building/White Building 203 & 209 East Fourth Avenue
851335 4034 S. Pacific Avenue 4034 S. Pacific Avenue
851336 400 University Avenue 400 University Avenue
851337 Rollingwood Duplex Homes 9300 Ridgeside Lane
851338 Acorn Paper Products 3686 East Olympic Boulevard
851340 Ramona Senior Center 9843 Ramona Street
851341 Bellflower Senior Center 9919 Ramona Street
851342 Artesia Senior Center 10427 Artesia Boulevard
851343 Halltree Apartments 22921 30th Avenue South
851344 Carpenter's Village Shopping Center 2814 Sepulveda Blvd.
851347 Sunrise Village Apartments 3993 Iowa Avenue
851348 Patricia Place Apartments 4750-4754 16th Avenue NE
851349 Eastwood Oaks Apartments 25-289 Tom Polk Circle
851351 Universal Reprographics 16781 Milliken Avenue
851352 The 400 Center 400 Lake Cook Road
851353 25-75 N. Santa Anita Avenue 25-75 N. Santa Anita Avenue
851354 Equitable Center 530 Center Street NE
851355 3301 & 3333 Sunrise Blvd. 3301 & 3333 Sunrise Blvd.
851356 Woodward Business Park 7580 North Ingram Avenue
851357 Davidson Warehouse 1613 Capital Circle NE
851358 Country Club Village MHP 400 Mona Lane
851359 Stockton-Walgreens 5114, 5210, 5228 N. El Dorado Street
851360 Marshall Avenue Industrial 1027, 1035 North Marshall Avenue
851361 Stratford Square 1438 Camino del Mar
851362 1275-81 8th Street 1275-81 8th Street
851363 West Loop at 18th St. Shopping Center 1692 thru 1724 West Loop North
851364 Covington Pointe Apartments 5125 Fairmont
851365 2228 Oakland Road 2228 Old Oakland Road
851367 Ocean Bluffs Mobilehome Park 3340 Del Sol Blvd.
851369 Central Computer Building 3777 Stevens Creek Boulevard
851370 2302 Trade Zone Boulevard 2302 Trade Zone Boulevard
851371 400 Emerson Street 400 Emerson Street
851372 Arctic Business Park I 4101 Arctic Boulevard, 600 & 700 West 41st Ave
851373 10 South Knoll & 36 Tiburon 10 South Knoll Lane & 36 Tiburon Blvd.
851374 Sumner Estates Mobile Home Park 5200 N.E. 92nd Avenue
851377 Davidson Industrial Park 6325, 6335, 6345, 6355, 6365 Marindustry Drive
851378 Hermco Center, I, II 3400, 3340-3360, 3446-3464 Arden Road
851381 Mountain View Apartments 1201 & 1301 Scott Avenue
851382 Hydra Re-load 1497 Tanforan Ave
851383 1211 Newell Avenue 1211 Newell Avenue
851384 Crossroads Office Center 700 E. El Camino Real
851385 Valley Office Center 828 South Bascom Avenue
851386 Sobol Apartments 222 Melwood Street, 229 N. Craig, 135-137 N. Craig
851387 Luke Avenue Business Park 5214 West Luke Avenue, 5205-5237 West Montebello Ave.,
5622 North 52nd Ave.
851388 Metro Business Center 10801 North 24th Avenue
851389 510 & 550 Parrott Street 510 & 550 Parrott Street
851390 Taylor Plaza Shopping Center 3102-3214 North Main
851391 Lamplighters Senior Citizens Inns 2055 Range Avenue
851392 411 North Marshall Ave. 411, 425, 435 North Marshall Avenue
851393 Windfaire Apartments 11055 Otsego Street
851394 Crenshaw Townhouse 1327 & 1329 Crenshaw Boulevard
851395 Chadron Apartments 13622 Chadron Avenue
851396 Vassar Terrace Apartments 7000 Vassar Avenue
851398 Lemoli Terrace 14030 Lemoli Avenue
851399 Saticoy Gardens 14955 Saticoy Street
851400 Regency Premier Apartments 8525 Tobias Avenue
851401 Kingswood Apartments 1720, 1754, 1768 West 1300 North
851402 Grandview School 2870 South Connor Street
851403 Santa Barbara Plaza 2589, 2665, 2719 Air Fresno Dr. & 2590, 2666, 2720
851404 Waterford Center 9003-9113 Research Boulevard
851405 City Center Shopping Center 444 East Williams Street
851406 Ashley Plaza Shopping Center 201 North Berkeley Boulevard
851408 The Clarion - Del Mar Inn 720 Camino Del Mar
851409 Hayward Allsafe Mini Storage 15 Cannery Court
851411 Dublin Allsafe 6250 Sierra Lane
851415 Hannum Industrial Park 5750, 5760, 5770 Hannum Avenue
851416 La Cienega/Jefferson Industrial Park 3341-3363 S. La Cienega Place and 5801-05 West Jef
851418 622 Contra Costa Boulevard 622 Contra Costa Blvd.
851419 Lawrence Properties
851420 1405 San Fernando Blvd. 1405 San Fernando Blvd.
851421 East Hill Apartments 1710 Harrison Avenue SE
851423 Handicraft Building 337-341 E. Liberty Street
851424 Santa Clara Self Storage 1700 De la Cruz
851425 Culver Plaza 9901-19 Washington Boulevard, 3855-67 Hughes Ave.
851426 Riviera Center 1815 Via El Prado
851428 Feit Electric Building 4901 Gregg Road
851429 El Malke Apartments 11301 53rd Street
851430 Apache Junction - Bashas 1477 W. Apache Trail
851433 Pacific Sunrise Apartments 4612 22nd Avenue N.E.
851434 Emerald Coast Shopping Center 15003 Emerald Coast Parkway
851435 710 Sansome Street 710 Sansome Street
851438 17112 Armstrong Avenue 17112 Armstrong Ave.
851439 South Tech Business Park 4305, 4315, 4325, 4335, 4345 S. Industrial and 432 Adelbaron Street
851441 1600 Dell Avenue 1600 Dell Avenue
851442 570 East La Cadena 570 East La Cadena
851443 Des Peres 14 Cine 12701 Manchester Road
851444 O'Fallon 15 Cine 1320 Central Park Drive
851445 St. Charles 18 Cine 1830 First Capitol Drive-South
851446 St. Clair 10 Cine 50 Ludwig Drive
851447 Halls Ferry 14 Cine 2845 Target Drive
851449 C&C MHC 9555 Struthers Road
851450 Oxnard Plaza Apartments 11313 Oxnard Street
851451 1001 Shannon Court 1001 Shannon Court
851452 6052 Industrial Way 6052 Industrial Way
851453 Oakmont Medical Building 6575 Oakmont Drive
851454 Rock Avenue Business Park 920 Rock Ave.
851455 Schlumberger Building 85 West Moreland Road
851456 Port St. Johns Apartments 9249-9259 N. Fortune Ct.
851457 Manteca Self Store-It 1735 E. Yosemite Avenue
851459 LifeCare Specialty Hospital 6161 Harry Hines Blvd.
851460 Piatti's Restaurant & Shelter Bay Office Complex 625-655 Redwood Hwy
851463 Lockridge Street Industrial 3959 & 3979 Lockridge Street
851464 900 & 916 Western Avenue 900 & 916 Western Avenue
851465 Summit North Shopping Center 2214, 2220, 2230 Mall Dr. East
851467 Factual Data Office Building 5200 Hahns Peak Drive
851468 470 Spear Street 444 & 470 Spear Street
851469 Willows Apartments 1959 Lake Boulevard
851472 Temescal Plaza Shopping Center 5055-5095 Telegraph Avenue
851476 800 West El Camino Real 800 El Camino Real West
851477 Financial Center 1615 Bonanza Street
851478 Meadowbrook Mobile Home Community 1220 Bennett Way
851479 8800 Promenade Professional Bldg. 8800 S.E. Sunnyside Road
851481 8914-8918 Santa Monica Blvd. 8914-8918 Santa Monica Blvd.
851484 Lazy Pet Products 540 W. Lambert Avenue
851485 Spanish Oaks Apts 2301 Valley View Blvd.
851486 North Mollison 1294 N. Mollison Avenue
851487 Ballantyne Apartments 542/548 Ballantyne
851488 Corinthian Apartments 4981 Catoctin Drive
851493 Pepper Grove Business Center 1609 S. Grove Avenue/1240-60 East Locust
851494 Valley View Business Park 3021 South Valley View
851498 First & Stewart Building 101 Stewart Street
851499 Pleasanton Office Portfolio 5758, 5794, 5850, 5925, 5956-5964 W. Las Positas
851500 The Landmark Business & Financial Center 1750 Howe Avenue
851501 America's Budget Storage, Canton MI 40671 Joy Road
851503 Kelsey Apartments 4233 - 9th Avenue NE
851507 Southwood Terrace 504, 520, 612 James Avenue
851508 Quail Meadows Apartments 6415 Longley Lane
851520 Superstition Springs Mini Storage 5510 East Southern Avenue
851525 Redi Packaging Warehouse 6002 Donoho
851526 Fountain Garden Apartments 3165, 3175 E. Fountain Blvd.
851528 Rancho Las Palmas Apartments 202-208 W. San Ysidro Blvd.
851530 Piedmont Pointe Office Park 1874 Piedmont Road
851539 Bromley Apartments 1525 E. 2nd Street
851548 Corporate Express 1133 Popular Creek Road
851550 CompuCom Systems Headquarters 7171 Forest Lane
851555 Mikohn Gaming Warehouse 3665 W. Diablo Drive
851556 Smoky Hill Village Phase II 5616 South Gibralter Way
851560 Gateway Center 45 Village Square
851563 King Street Metro Place - Phase I 1737 King St.
851565 Office Depot Dell Range Pavilion 1225 Dell Range Boulevard
851569 Wakefield Hall 2101 New Hampshire Ave NW
851577 Royal Oaks Apartments 540-541 Bryan Street
851578 Royal Village Apartments - Gainesville 710 SW Depot Avenue
851579 Royal Lexington Apartments 217 Virginia Avenue
851580 Northgate Lakes Apartments 1310-1389 Northgate Circle
851581 Royal Pavilion Apartments 1700-1702 W. Call Street
851582 Royal Village Apartments - Tallahassee 1835 West Call Street
851586 Santan Fiesta 265-285 North Federal Street
851802 Plaza De Campana 3205-3329 East Bell Road
851806 Treehouse Apartments 800 North LBJ
851808 Pioneer Village Apartments 1913, 1935 & 2005 Perlich Avenue
851809 University Square 7006 University Avenue
<PAGE>
<CAPTION>
LOAN GROSS MORTGAGE ADMINISTRATIVE NET MORTGAGE
NUMBER CITY STATE ZIP CODE RATE COST RATE RATE ORIGINAL BALANCE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
850937 Rancho Santa Margarita CA 92688 7.3600% 0.053% 7.3070% $7,000,000.00
850952 Canoga Park CA 91303 6.6100% 0.053% 6.5570% 1,100,000.00
850995 Cupertino CA 95014 7.4050% 0.053% 7.3520% 5,400,000.00
851072 Vista CA 92083 7.5240% 0.053% 7.4710% 9,500,000.00
851087 Westminster CO 80030 7.3700% 0.053% 7.3170% 18,900,000.00
851122 Laguna Beach CA 92651 6.9700% 0.053% 6.9170% 750,000.00
851129 Torrance CA 90505 6.8500% 0.053% 6.7970% 1,100,000.00
851171 Castle Rock CO 80104 6.5300% 0.053% 6.4770% 825,000.00
851174 Louisville CO 80027 7.2500% 0.053% 7.1970% 1,000,000.00
851192 7.1400% 0.053% 7.0870% 2,250,000.00
851195 Placentia CA 92870 6.6550% 0.053% 6.6020% 1,150,000.00
851200 Chatsworth CA 91311 7.1700% 0.053% 7.1170% 2,210,000.00
851203 Rancho Dominguez CA 90220 7.2400% 0.053% 7.1870% 1,100,000.00
851219 Chino CA 91710 6.2200% 0.053% 6.1670% 3,100,000.00
851236 Brownstown Township MI 48183 6.7500% 0.053% 6.6970% 1,612,500.00
851238 Phoenix AZ 85020 6.4100% 0.053% 6.3570% 750,000.00
851242 Pacoima CA 91331 6.2100% 0.053% 6.1570% 1,590,000.00
851243 Pacoima CA 91331 6.0600% 0.053% 6.0070% 3,245,000.00
851244 Simi Valley CA 93065 7.1250% 0.053% 7.0720% 2,775,000.00
851245 Valencia CA 91355 6.7450% 0.053% 6.6920% 4,500,000.00
851246 Los Alamitos CA 90720 6.9650% 0.053% 6.9120% 3,000,000.00
851248 Los Angeles CA 90024 7.1100% 0.053% 7.0570% 1,500,000.00
851250 Playa del Rey CA 90293 6.8100% 0.053% 6.7570% 1,150,000.00
851252 Rogers MN 55374 6.4800% 0.053% 6.4270% 1,000,000.00
851256 Colorado Springs CO 80907 6.9850% 0.053% 6.9320% 1,010,000.00
851258 Colorado Springs CO 80919 7.0000% 0.053% 6.9470% 1,020,000.00
851260 Morgan Hill CA 95037 6.4500% 0.053% 6.3970% 1,300,000.00
851261 Pinellas Park FL 34665 7.9700% 0.053% 7.9170% 1,360,000.00
851263 Tehachapi CA 93561 7.5800% 0.053% 7.5270% 1,000,000.00
851264 San Antonio TX 78216 6.5800% 0.053% 6.5270% 1,800,000.00
851265 Westlake Village CA 91362 6.9100% 0.053% 6.8570% 1,120,000.00
851266 McKinney TX 75069 6.4000% 0.053% 6.3470% 1,000,000.00
851267 6.6550% 0.053% 6.6020% 2,710,000.00
851272 Los Angeles CA 90046 6.7900% 0.053% 6.7370% 1,000,000.00
851273 Van Nuys CA 91606 6.8700% 0.053% 6.8170% 1,000,000.00
851275 Scottsdale AZ 85260 6.6700% 0.053% 6.6170% 850,000.00
851278 San Angelo TX 76904 5.7500% 0.053% 5.6970% 1,800,000.00
851279 North Hollywood CA 91601 7.2300% 0.053% 7.1770% 2,200,000.00
851280 North Hollywood CA 91601 7.2300% 0.053% 7.1770% 2,200,000.00
851282 Austin TX 78727 5.9100% 0.053% 5.8570% 1,725,000.00
851283 Windcrest TX 78239 6.4250% 0.053% 6.3720% 1,500,000.00
851284 Austin TX 78703 5.7800% 0.053% 5.7270% 850,000.00
851285 Fort Worth TX 76134 6.0800% 0.053% 6.0270% 2,100,000.00
851286 Austin TX 78727 5.7100% 0.053% 5.6570% 1,200,000.00
851288 Coon Rapids MN 55433 5.9800% 0.053% 5.9270% 955,000.00
851292 Mountain View CA 94043 6.6000% 0.053% 6.5470% 1,100,000.00
851296 Fresno CA 93722 6.2200% 0.053% 6.1670% 920,000.00
851299 Santa Ana CA 92075 6.8100% 0.053% 6.7570% 1,500,000.00
851303 West Covina CA 91790 6.9300% 0.053% 6.8770% 5,600,000.00
851305 Lakeside CA 92040 6.3400% 0.053% 6.2870% 2,850,000.00
851306 Las Vegas NV 89108 6.3400% 0.053% 6.2870% 5,140,000.00
851307 Irvine CA 92612 6.3500% 0.053% 6.2970% 1,500,000.00
851308 Medford OR 97504 6.3600% 0.053% 6.3070% 970,000.00
851310 Victorville CA 92392 7.3400% 0.053% 7.2870% 1,900,000.00
851312 Tulsa OK 74110 6.7200% 0.053% 6.6670% 2,030,000.00
851317 San Diego CA 92106 6.9750% 0.053% 6.9220% 6,950,000.00
851319 San Pedro CA 90731 5.8900% 0.053% 5.8370% 660,000.00
851320 San Antonio TX 78218 6.5300% 0.053% 6.4770% 270,000.00
851322 Lancaster CA 93534 5.9600% 0.053% 5.9070% 1,380,000.00
851323 Canyon Country CA 91351 5.7500% 0.053% 5.6970% 1,600,000.00
851327 Fife WA 98424 6.7000% 0.053% 6.6470% 3,900,000.00
851328 Livermore CA 94550 6.9350% 0.053% 6.8820% 2,100,000.00
851329 Brea CA 92821 6.2400% 0.053% 6.1870% 1,580,000.00
851330 Reno NV 89502 6.5500% 0.053% 6.4970% 1,750,000.00
851333 Thousand Oaks (Newbury Park) CA 91320 6.1400% 0.053% 6.0870% 2,500,000.00
851334 Olympia WA 98501 6.1500% 0.053% 6.0970% 1,650,000.00
851335 San Pedro CA 90731 5.8900% 0.053% 5.8370% 1,300,000.00
851336 Sacramento CA 95825 7.0300% 0.053% 6.9770% 1,942,500.00
851337 Orangevale CA 95662 6.4400% 0.053% 6.3870% 3,000,000.00
851338 Los Angeles CA 90023 7.3400% 0.053% 7.2870% 5,000,000.00
851340 Bellflower CA 90706 6.5600% 0.053% 6.5070% 2,528,000.00
851341 Bellflower CA 90706 6.5600% 0.053% 6.5070% 1,264,000.00
851342 Bellflower CA 90706 6.5600% 0.053% 6.5070% 2,640,000.00
851343 Des Moines WA 98198 6.6200% 0.053% 6.5670% 1,400,000.00
851344 Torrance CA 90505 7.1100% 0.053% 7.0570% 1,500,000.00
851347 Riverside CA 92507 6.4400% 0.053% 6.3870% 3,200,000.00
851348 Seattle WA 98052 6.6900% 0.053% 6.6370% 1,900,000.00
851349 Chico CA 95973 7.3000% 0.053% 7.2470% 1,550,000.00
851351 Irvine CA 92606 7.5800% 0.053% 7.5270% 1,075,000.00
851352 Deerfield IL 60015 6.3900% 0.053% 6.3370% 2,000,000.00
851353 Arcadia CA 91006 6.2000% 0.053% 6.1470% 1,675,000.00
851354 Salem OR 97301 6.7100% 0.053% 6.6570% 4,500,000.00
851355 Rancho Cordova CA 95742 7.0600% 0.053% 7.0070% 1,225,000.00
851356 Fresno CA 93711 7.1600% 0.053% 7.1070% 1,447,000.00
851357 Tallahassee FL 32308 6.9000% 0.053% 6.8470% 650,000.00
851358 Henderson NV 89015 6.3350% 0.053% 6.2820% 1,100,000.00
851359 Stockton CA 95207 6.4200% 0.053% 6.3670% 1,000,000.00
851360 El Cajon CA 92020 6.3500% 0.053% 6.2970% 800,000.00
851361 Del Mar CA 92014 6.8200% 0.053% 6.7670% 1,760,000.00
851362 San Francisco CA 94122 6.1800% 0.053% 6.1270% 1,030,000.00
851363 Houston TX 77008 6.7500% 0.053% 6.6970% 1,070,000.00
851364 Abilene TX 79605 6.5500% 0.053% 6.4970% 1,800,000.00
851365 San Jose CA 95131 6.3500% 0.053% 6.2970% 2,900,000.00
851367 San Diego CA 92154 6.5100% 0.053% 6.4570% 9,975,000.00
851369 Santa Clara CA 95051 6.2500% 0.053% 6.1970% 3,000,000.00
851370 San Jose CA 95131 7.5600% 0.053% 7.5070% 5,100,000.00
851371 Palo Alto CA 94301 6.3000% 0.053% 6.2470% 2,400,000.00
851372 Anchorage AK 99503 7.2000% 0.053% 7.1470% 1,375,000.00
851373 Mill Valley CA 94941 6.6000% 0.053% 6.5470% 1,400,000.00
851374 Portland OR 97220 6.2900% 0.053% 6.2370% 750,000.00
851377 San Diego CA 92121 5.7500% 0.053% 5.6970% 1,500,000.00
851378 Hayward CA 94545 6.9300% 0.053% 6.8770% 3,000,000.00
851381 Clovis CA 93612 6.3900% 0.053% 6.3370% 2,800,000.00
851382 Woodland CA 95776 7.3200% 0.053% 7.2670% 820,000.00
851383 Walnut Creek CA 94596 6.5600% 0.053% 6.5070% 1,700,000.00
851384 Mountain View CA 94022 6.7200% 0.053% 6.6670% 6,250,000.00
851385 San Jose CA 95128 6.8650% 0.053% 6.8120% 3,525,000.00
851386 Pittsburgh PA 15213 7.5200% 0.053% 7.4670% 3,050,000.00
851387 Glendale AZ 85301 6.5300% 0.053% 6.4770% 2,700,000.00
851388 Phoenix AZ 85029 6.5600% 0.053% 6.5070% 3,800,000.00
851389 San Jose CA 95112 6.7000% 0.053% 6.6470% 1,200,000.00
851390 Taylor TX 76574 6.2200% 0.053% 6.1670% 1,700,000.00
851391 Santa Rosa CA 95401 5.6500% 0.053% 5.5970% 1,412,000.00
851392 El Cajon CA 92020 6.5200% 0.053% 6.4670% 1,500,000.00
851393 North Hollywood CA 91601 6.7700% 0.053% 6.7170% 1,970,000.00
851394 Los Angeles CA 90019 7.0200% 0.053% 6.9670% 1,645,000.00
851395 Hawthorne CA 90250 6.7700% 0.053% 6.7170% 2,137,500.00
851396 Canoga Park CA 91303 7.0200% 0.053% 6.9670% 1,575,000.00
851398 Hawthorne CA 90250 7.0200% 0.053% 6.9670% 1,365,000.00
851399 Van Nuys CA 91405 6.7700% 0.053% 6.7170% 3,975,000.00
851400 Panorama City CA 91402 6.7100% 0.053% 6.6570% 7,200,000.00
851401 Salt Lake City UT 28205 6.4200% 0.053% 6.3670% 1,900,000.00
851402 Salt Lake City UT 84109 6.8200% 0.053% 6.7670% 700,000.00
851403 Fresno CA 93727 8.2200% 0.053% 8.1670% 5,400,000.00
851404 Austin TX 78755 5.9900% 0.053% 5.9370% 5,500,000.00
851405 Carson City NV 89701 8.0200% 0.053% 7.9670% 1,500,000.00
851406 Goldsboro NC 27534 7.8600% 0.053% 7.8070% 3,600,000.00
851408 Del Mar CA 92014 7.0000% 0.053% 6.9470% 2,400,000.00
851409 Hayward CA 94544 6.6300% 0.053% 6.5770% 2,040,000.00
851411 Dublin CA 94568 6.6300% 0.053% 6.5770% 3,800,000.00
851415 Culver City CA 90230 6.4000% 0.053% 6.3470% 3,235,000.00
851416 Los Angeles CA 90016 6.3800% 0.053% 6.3270% 1,650,000.00
851418 Pleasant Hill CA 94523 6.7800% 0.053% 6.7270% 1,300,000.00
851419 7.0900% 0.053% 7.0370% 5,650,000.00
851420 Burbank CA 91504 5.7000% 0.053% 5.6470% 2,625,000.00
851421 Port Orchard WA 98366 6.4800% 0.053% 6.4270% 1,100,000.00
851423 Ann Arbor MI 48104 8.0700% 0.053% 8.0170% 2,300,000.00
851424 Santa Clara CA 95032 6.4900% 0.053% 6.4370% 2,500,000.00
851425 Culver City CA 90232 6.7600% 0.053% 6.7070% 5,000,000.00
851426 Redondo Beach CA 90277 6.9800% 0.053% 6.9270% 2,220,000.00
851428 Pico Rivera CA 90660 6.0700% 0.053% 6.0170% 3,900,000.00
851429 Temple Terrace FL 33617 7.8900% 0.053% 7.8370% 1,050,000.00
851430 Apache Junction AZ 95219 7.5800% 0.053% 7.5270% 2,600,000.00
851433 Seattle WA 98105 6.5300% 0.053% 6.4770% 4,300,000.00
851434 Destin FL 32541 7.1200% 0.053% 7.0670% 1,400,000.00
851435 San Francisco CA 94111 6.6700% 0.053% 6.6170% 4,800,000.00
851438 Irvine CA 92614 6.2600% 0.053% 6.2070% 4,788,000.00
851439 Las Vegas NV 89103 6.9100% 0.053% 6.8570% 11,500,000.00
851441 Campbell CA 95008 6.5700% 0.053% 6.5170% 1,600,000.00
851442 Riverside CA 92501 7.5900% 0.053% 7.5370% 1,000,000.00
851443 Des Peres MO 63131 8.2550% 0.053% 8.2020% 8,700,000.00
851444 O'Fallon IL 62269 8.2550% 0.053% 8.2020% 6,800,000.00
851445 St. Charles MO 63303 8.2550% 0.053% 8.2020% 10,500,000.00
851446 Fairview Heights IL 62208 8.2550% 0.053% 8.2020% 3,000,000.00
851447 St. Louis MO 63136 7.7350% 0.053% 7.6820% 3,000,000.00
851449 New Middletown OH 44442 7.0200% 0.053% 6.9670% 1,610,000.00
851450 North Hollywood CA 91606 6.8000% 0.053% 6.7470% 2,320,000.00
851451 Livermore CA 94550 6.9200% 0.053% 6.8670% 785,000.00
851452 Livermore CA 94550 6.8400% 0.053% 6.7870% 2,000,000.00
851453 Santa Rosa CA 95409 7.3300% 0.053% 7.2770% 1,500,000.00
851454 San Jose CA 95131 7.5200% 0.053% 7.4670% 7,075,000.00
851455 Simi Valley CA 93065 6.8600% 0.053% 6.8070% 6,600,000.00
851456 Portland OR 97203 6.6500% 0.053% 6.5970% 1,424,850.00
851457 Manteca CA 95336 7.2100% 0.053% 7.1570% 1,200,000.00
851459 Dallas TX 75235 6.7200% 0.053% 6.6670% 5,000,000.00
851460 Mill Valley CA 94941 6.9000% 0.053% 6.8470% 8,650,000.00
851463 San Diego CA 92101 6.2300% 0.053% 6.1770% 1,650,000.00
851464 Glendale CA 91201 6.8700% 0.053% 6.8170% 2,500,000.00
851465 Waterford Township MI 48328 6.7200% 0.053% 6.6670% 10,550,000.00
851467 Loveland CO 80538 7.6100% 0.053% 7.5570% 2,650,000.00
851468 San Francisco CA 94105 7.1500% 0.053% 7.0970% 5,500,000.00
851469 Davis CA 95616 6.6100% 0.053% 6.5570% 5,000,000.00
851472 Oakland CA 94609 6.9000% 0.053% 6.8470% 2,475,000.00
851476 Mountain View CA 94040 6.9700% 0.053% 6.9170% 19,500,000.00
851477 Walnut Creek CA 94596 7.0100% 0.053% 6.9570% 1,500,000.00
851478 Templeton CA 93465 7.8400% 0.053% 7.7870% 2,000,000.00
851479 Clackamas OR 97015 7.2700% 0.053% 7.2170% 2,950,000.00
851481 West Hollywood CA 90069 7.3400% 0.053% 7.2870% 2,500,000.00
851484 Brea CA 92821 6.7000% 0.053% 6.6470% 1,750,000.00
851485 Las Vegas NV 89102 6.9000% 0.053% 6.8470% 4,400,000.00
851486 El Cajon CA 92021 8.0000% 0.053% 7.9470% 1,500,000.00
851487 El Cajon CA 92020 8.0000% 0.053% 7.9470% 1,650,000.00
851488 San Diego CA 92115 8.0000% 0.053% 7.9470% 5,600,000.00
851493 Ontario CA 91761 7.0300% 0.053% 6.9770% 1,700,000.00
851494 Las Vegas NV 89102 7.3500% 0.053% 7.2970% 1,550,000.00
851498 Seattle WA 98101 7.4300% 0.053% 7.3770% 7,500,000.00
851499 Pleasanton CA 94588 7.4250% 0.053% 7.3720% 25,800,000.00
851500 Sacramento CA 95825 7.2400% 0.053% 7.1870% 12,000,000.00
851501 Canton MI 48187 7.1900% 0.053% 7.1370% 1,650,000.00
851503 Seattle WA 98105 7.3900% 0.053% 7.3370% 2,690,000.00
851507 Mankato MN 56001 7.2500% 0.053% 7.1970% 2,700,000.00
851508 Reno NV 89511 7.4000% 0.053% 7.3470% 2,050,000.00
851520 Mesa AZ 85206 7.6000% 0.053% 7.5470% 1,500,000.00
851525 Houston TX 77033 7.7300% 0.053% 7.6770% 2,900,000.00
851526 Colorado Springs CO 80910 7.3800% 0.053% 7.3270% 1,510,000.00
851528 San Ysidro CA 92173 7.4900% 0.053% 7.4370% 2,850,000.00
851530 Atlanta GA 30324 7.9350% 0.053% 7.8820% 1,950,000.00
851539 Granbury TX 76048 7.7000% 0.053% 7.6470% 1,500,000.00
851548 Henderson NC 27536 7.3900% 0.053% 7.3370% 4,745,000.00
851550 Dallas TX 75230 7.2150% 0.053% 7.1620% 23,000,000.00
851555 Las Vegas NV 85118 8.1350% 0.053% 8.0820% 1,792,500.00
851556 Aurora CO 80015 8.3400% 0.053% 8.2870% 1,600,000.00
851560 Snowmass Village CO 81615 7.6300% 0.053% 7.5770% 3,750,000.00
851563 Alexandria VA 22314 6.9200% 0.053% 6.8670% 22,400,000.00
851565 Cheyenne WY 82009 8.3400% 0.053% 8.2870% 1,900,000.00
851569 Washington DC 20009 7.8400% 0.053% 7.7870% 1,500,000.00
851577 Tallahassee FL 32304 7.1300% 0.053% 7.0770% 3,425,000.00
851578 Gainesville FL 32601 6.8700% 0.053% 6.8170% 7,050,000.00
851579 Lexington KY 40508 6.8600% 0.053% 6.8070% 5,525,000.00
851580 Oviedo FL 32765 7.0000% 0.053% 6.9470% 12,825,000.00
851581 Tallahassee FL 32304 6.9200% 0.053% 6.8670% 2,875,000.00
851582 Tallahassee FL 32304 6.8300% 0.053% 6.7770% 3,875,000.00
851586 Chandler AZ 85225 7.7900% 0.053% 7.7370% 3,100,000.00
851802 Phoenix AZ 85032 7.2500% 0.053% 7.1970% 10,000,000.00
851806 San Marcos TX 78666 6.8000% 0.053% 6.7470% 2,500,000.00
851808 Redwing MN 55066 6.8500% 0.053% 6.7970% 2,100,000.00
851809 Lubbock TX 79413 8.2000% 0.053% 8.1470% 2,000,000.00
<PAGE>
<CAPTION>
STATED
ORIGINAL REMAINING
TERM TO TERM TO ORIGINAL
LOAN MATURITY MATURITY AMORTIZATION
NUMBER CUT-OFF BALANCE (MOS.) (MOS.) MATURITY DATE ARD DATE ARD RATE STEP (BPS) (MOS.)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
850937 $6,806,976.18 180 171 10/01/13 180
850952 1,085,817.46 120 110 09/01/08 300
850995 5,328,185.10 120 108 07/01/08 300
851072 9,395,534.37 115 107 06/01/08 324
851087 18,489,569.26 240 228 07/01/18 240
851122 730,630.54 180 172 11/01/13 180
851129 1,073,369.88 120 108 07/01/08 240
851171 819,258.03 120 112 11/01/08 360
851174 989,492.15 120 109 08/01/08 324
851192 2,185,363.00 180 171 10/01/13 180
851195 1,134,631.12 120 110 09/01/08 300
851200 2,193,361.66 180 170 09/01/13 360
851203 1,091,846.54 180 170 09/01/13 360
851219 3,074,252.78 120 114 01/01/09 300
851236 1,587,079.69 180 172 11/01/13 240
851238 736,195.03 120 111 10/01/08 240
851242 1,559,997.96 120 111 10/01/08 240
851243 3,204,064.47 120 111 10/01/08 300
851244 2,740,504.35 120 110 09/01/08 300
851245 4,446,766.78 144 135 10/01/10 300
851246 2,978,978.79 180 171 10/01/13 360
851248 1,487,643.10 180 170 09/01/13 360
851250 1,139,960.78 180 170 09/01/13 360
851252 973,094.96 180 172 11/01/13 180
851256 984,344.13 180 172 11/01/13 180
851258 1,004,414.10 121 113 12/01/08 240
851260 1,276,190.41 120 111 10/01/08 240
851261 1,346,162.62 240 234 01/01/19 240
851263 991,224.29 120 112 11/01/08 300
851264 1,778,160.62 120 111 10/01/08 300
851265 1,106,267.39 120 110 09/01/08 300
851266 992,071.54 120 111 10/01/08 360
851267 2,689,667.36 120 111 10/01/08 360
851272 991,236.60 180 170 09/01/13 360
851273 967,839.34 120 110 09/01/08 180
851275 824,605.13 180 171 10/01/13 180
851278 1,767,356.47 120 112 11/01/08 240
851279 2,162,137.06 240 231 10/01/18 240
851280 2,162,137.06 240 231 10/01/18 240
851282 1,711,354.61 120 112 11/01/08 360
851283 1,486,726.55 120 110 09/01/08 360
851284 843,097.07 120 112 11/01/08 360
851285 2,083,954.25 120 112 11/01/08 360
851286 1,189,002.58 120 111 10/01/08 360
851288 944,067.75 120 112 11/01/08 300
851292 1,087,313.98 120 111 10/01/08 300
851296 912,420.25 120 111 10/01/08 360
851299 1,461,310.36 180 172 11/01/13 180
851303 5,564,199.62 120 112 11/01/08 360
851305 2,815,670.99 120 111 10/01/08 300
851306 5,095,939.98 120 111 10/01/08 360
851307 1,417,443.97 120 111 10/01/08 120
851308 940,789.45 180 171 10/01/13 180
851310 1,867,725.09 240 231 10/01/18 240
851312 2,005,849.44 120 114 01/01/09 240
851317 6,843,468.89 180 172 11/01/13 240
851319 648,439.86 120 112 11/01/08 240
851320 266,698.97 120 111 10/01/08 300
851322 1,326,858.89 120 112 11/01/08 144
851323 1,578,771.98 120 111 10/01/08 300
851327 3,838,135.44 180 172 11/01/13 240
851328 2,083,349.15 120 110 09/01/08 360
851329 1,560,650.39 120 111 10/01/08 300
851330 1,729,647.33 120 111 10/01/08 300
851333 2,483,643.45 120 113 12/01/08 360
851334 1,629,490.78 120 111 10/01/08 300
851335 1,277,230.11 120 112 11/01/08 240
851336 1,909,432.51 240 231 10/01/18 240
851337 2,925,221.71 204 195 10/01/15 204
851338 4,934,344.99 240 233 12/01/18 240
851340 2,491,582.80 240 233 12/01/18 240
851341 1,245,791.37 240 233 12/01/18 240
851342 2,601,969.33 240 233 12/01/18 240
851343 1,383,908.40 120 111 10/01/08 300
851344 1,484,141.55 120 111 10/01/08 300
851347 3,177,304.28 120 112 11/01/08 360
851348 1,878,417.97 180 171 10/01/13 300
851349 1,537,634.47 180 173 12/01/13 300
851351 1,061,746.37 120 113 12/01/08 240
851352 1,981,395.28 120 113 12/01/08 300
851353 1,654,350.95 120 111 10/01/08 300
851354 4,396,742.07 144 139 02/01/11 144
851355 1,214,816.67 120 113 12/01/08 300
851356 1,428,170.72 240 233 12/01/18 240
851357 633,365.66 180 172 11/01/13 180
851358 1,092,025.75 120 112 11/01/08 360
851359 983,218.60 240 232 11/01/18 240
851360 791,373.71 120 112 11/01/08 300
851361 1,744,761.70 120 113 12/01/08 300
851362 1,022,289.93 120 112 11/01/08 360
851363 1,049,008.05 180 174 01/01/14 180
851364 1,770,249.48 241 233 12/01/18 240
851365 2,881,844.00 120 113 12/01/08 360
851367 9,858,208.85 180 171 10/01/13 300
851369 2,918,778.65 180 172 11/01/13 180
851370 5,076,750.20 120 116 03/01/09 300
851371 2,373,909.62 120 112 11/01/08 300
851372 1,354,511.50 240 232 11/01/18 240
851373 1,391,688.87 120 113 12/01/08 360
851374 743,912.12 120 111 10/01/08 360
851377 1,457,618.33 180 172 11/01/13 180
851378 2,923,426.97 180 172 11/01/13 180
851381 2,724,100.70 180 172 11/01/13 180
851382 805,828.81 204 197 12/01/15 204
851383 1,684,625.77 120 113 12/01/08 300
851384 6,164,014.80 240 233 12/01/18 240
851385 3,477,381.44 240 233 12/01/18 240
851386 3,012,103.74 240 233 12/01/18 240
851387 2,674,464.98 120 113 12/01/08 300
851388 3,764,227.21 120 113 12/01/08 300
851389 1,168,750.52 180 172 11/01/13 180
851390 1,665,130.41 180 174 01/01/14 180
851391 1,376,935.83 180 173 12/01/13 180
851392 1,484,269.12 180 172 11/01/13 300
851393 1,957,971.47 120 113 12/01/08 360
851394 1,635,431.82 120 113 12/01/08 360
851395 2,124,448.73 120 113 12/01/08 360
851396 1,565,838.96 120 113 12/01/08 360
851398 1,357,060.46 120 113 12/01/08 360
851399 3,950,729.19 120 113 12/01/08 360
851400 7,155,524.95 120 113 12/01/08 360
851401 1,872,862.60 121 114 01/01/09 240
851402 675,272.51 120 114 01/01/09 120
851403 5,380,359.10 120 116 03/01/09 300
851404 5,452,621.95 120 114 01/01/09 300
851405 1,482,538.69 240 233 12/01/18 240
851406 3,585,948.95 120 116 03/01/09 300
851408 2,381,962.54 120 114 01/01/09 300
851409 2,021,765.09 180 173 12/01/13 300
851411 3,766,033.03 180 173 12/01/13 300
851415 3,203,788.82 120 113 12/01/08 300
851416 1,634,032.04 120 113 12/01/08 300
851418 1,288,668.36 84 77 12/01/05 300
851419 5,609,243.55 240 234 01/01/19 300
851420 2,593,579.53 120 112 11/01/08 300
851421 1,089,918.77 120 113 12/01/08 300
851423 2,293,296.98 120 117 04/01/09 300
851424 2,484,805.93 120 113 12/01/08 360
851425 4,956,269.84 120 113 12/01/08 300
851426 2,207,862.96 180 173 12/01/13 360
851428 3,860,431.79 120 113 12/01/08 300
851429 1,043,374.91 120 114 01/01/09 300
851430 2,569,286.09 228 222 01/01/18 228
851433 4,254,978.73 120 112 11/01/08 300
851434 1,388,480.52 180 173 12/01/13 300
851435 4,775,350.77 120 114 01/01/09 360
851438 4,748,485.77 120 114 01/01/09 300
851439 11,417,571.21 120 113 12/01/08 324
851441 1,542,715.20 120 114 01/01/09 120
851442 987,687.03 240 233 12/01/18 240
851443 8,606,059.60 236 234 01/01/19 235
851444 6,731,734.51 240 234 01/01/19 240
851445 10,394,590.07 240 234 01/01/19 240
851446 2,969,882.91 240 234 01/01/19 240
851447 2,853,464.12 116 114 01/01/09 116
851449 1,602,639.95 120 116 03/01/09 300
851450 2,306,808.42 120 113 12/01/08 360
851451 778,317.24 120 113 12/01/08 300
851452 1,982,742.08 120 113 12/01/08 300
851453 1,493,289.81 120 114 01/01/09 360
851454 7,034,252.56 120 115 02/01/09 300
851455 6,550,560.16 84 78 01/01/06 300
851456 1,392,401.96 180 173 12/01/13 180
851457 1,191,513.63 120 114 01/01/09 300
851459 4,961,681.72 120 114 01/01/09 300
851460 8,607,643.95 120 114 01/01/09 360
851463 1,636,317.62 120 114 01/01/09 300
851464 2,481,303.32 120 114 01/01/09 300
851465 10,481,120.24 120 115 02/01/09 300
851467 2,621,777.99 240 234 01/01/19 240
851468 5,460,716.31 120 114 01/01/09 300
851469 4,960,992.42 120 114 01/01/09 300
851472 2,435,143.99 180 175 02/01/14 180
851476 19,356,533.81 120 114 01/01/09 300
851477 1,489,036.34 120 114 01/01/09 300
851478 1,990,994.19 120 113 12/01/08 360
851479 2,903,970.28 180 175 02/01/14 180
851481 2,453,350.18 180 174 01/01/14 180
851484 1,738,538.94 120 115 02/01/09 300
851485 4,362,415.50 120 113 12/01/08 300
851486 1,491,997.27 120 115 02/01/09 300
851487 1,643,732.88 120 116 03/01/09 300
851488 5,570,123.09 120 115 02/01/09 300
851493 1,689,433.76 120 115 02/01/09 300
851494 1,544,537.25 120 117 04/01/09 300
851498 7,467,155.91 84 78 01/01/06 360
851499 25,701,453.22 84 79 02/01/06 360
851500 11,945,284.50 84 78 01/01/06 360
851501 1,644,366.44 120 117 04/01/09 300
851503 2,684,294.63 120 118 05/01/09 300
851507 2,649,800.12 180 174 01/01/14 180
851508 2,037,967.06 120 115 02/01/09 300
851520 1,495,238.42 120 117 04/01/09 300
851525 2,874,709.76 180 177 04/01/14 180
851526 1,506,791.32 120 118 05/01/09 300
851528 2,838,061.30 120 116 03/01/09 300
851530 1,944,174.47 120 117 04/01/09 300
851539 1,495,019.93 240 238 05/01/19 240
851548 4,734,936.06 120 118 05/01/09 300
851550 22,921,816.40 120 117 04/01/09 300
851555 1,790,656.17 120 119 06/01/09 300
851556 1,598,998.35 120 119 06/01/09 360
851560 3,747,288.59 120 119 06/01/09 360
851563 22,366,917.31 120 118 05/01/09 360
851565 1,898,110.00 120 119 06/01/09 300
851569 1,500,000.00 120 120 07/01/09 300
851577 3,425,000.00 120 120 07/01/09 300
851578 7,050,000.00 120 120 07/01/09 300
851579 5,525,000.00 120 120 07/01/09 300
851580 12,825,000.00 120 120 07/01/09 300
851581 2,875,000.00 120 120 07/01/09 300
851582 3,875,000.00 120 120 07/01/09 300
851586 3,100,000.00 120 120 07/01/09 360
851802 9,926,042.95 120 110 09/01/08 360
851806 2,451,004.84 120 110 09/01/08 240
851808 2,032,344.84 120 110 09/01/08 180
851809 1,990,373.63 120 112 11/01/08 360
<PAGE>
<CAPTION>
DEBT
SERVICE
LOAN INTEREST ONLY FIRST PAYMENT COVERAGE INTEREST
NUMBER MONTHS DATE MONTHLY P&I APPRAISED VALUE CUT-OFF LTV RATIO ACCRUAL METHOD
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C> <C>
850937 0 11/01/98 $64,335 $10,000,000 68.07% 1.04x Actual/360
850952 0 10/01/98 7,503 1,500,000 72.39% 1.53 Actual/360
850995 0 08/01/98 39,572 8,100,000 65.78% 1.43 Actual/360
851072 0 12/01/98 68,371 13,200,000 71.15% 1.41 Actual/360
851087 0 08/01/98 150,758 26,550,000 69.64% 1.30 Actual/360
851122 0 12/01/98 6,729 1,380,000 52.94% 1.87 30/360
851129 0 08/01/98 8,430 1,775,000 60.47% 1.68 30/360
851171 0 12/01/98 5,231 1,150,000 71.24% 1.67 Actual/360
851174 0 09/01/98 7,042 1,400,000 70.68% 1.46 Actual/360
851192 0 11/01/98 20,400 4,505,000 48.51% 1.69 30/360
851195 0 10/01/98 7,877 14,000,000 8.10% 16.27 30/360
851200 0 10/01/98 14,956 3,000,000 73.11% 1.24 Actual/360
851203 0 10/01/98 7,496 1,750,000 62.39% 1.29 Actual/360
851219 0 02/01/99 20,392 5,200,000 59.12% 1.62 Actual/360
851236 0 12/01/98 12,261 2,150,000 73.82% 1.45 Actual/360
851238 0 11/01/98 5,552 1,710,000 43.05% 2.77 Actual/360
851242 0 11/01/98 11,585 2,900,000 53.79% 1.21 Actual/360
851243 0 11/01/98 21,027 4,740,000 67.60% 1.74 Actual/360
851244 0 10/01/98 19,835 4,550,000 60.23% 1.50 30/360
851245 0 11/01/98 31,077 6,800,000 65.39% 1.57 30/360
851246 0 11/01/98 19,889 4,950,000 60.18% 1.69 Actual/360
851248 0 10/01/98 10,091 2,800,000 53.13% 1.47 30/360
851250 0 10/01/98 7,505 2,380,000 47.90% 2.17 30/360
851252 0 12/01/98 8,700 1,750,000 55.61% 1.41 30/360
851256 0 12/01/98 9,070 1,610,000 61.14% 1.49 Actual/360
851258 0 12/01/98 7,908 1,430,000 70.24% 1.26 Actual/360
851260 0 11/01/98 9,654 2,050,000 62.25% 1.36 Actual/360
851261 0 02/01/99 11,350 2,000,000 67.31% 1.60 Actual/360
851263 0 12/01/98 7,442 1,460,000 67.89% 1.29 Actual/360
851264 0 11/01/98 12,244 2,760,000 64.43% 1.66 30/360
851265 0 10/01/98 7,852 1,620,000 68.29% 1.38 Actual/360
851266 0 11/01/98 6,255 1,375,000 72.15% 1.51 Actual/360
851267 0 11/01/98 17,406 3,530,000 76.19% 1.61 Actual/360
851272 0 10/01/98 6,513 4,100,000 24.18% 4.01 30/360
851273 0 10/01/98 8,916 1,880,000 51.48% 1.43 Actual/360
851275 0 11/01/98 7,484 1,290,000 63.92% 1.29 30/360
851278 0 12/01/98 12,638 4,640,000 38.09% 2.56 30/360
851279 0 11/01/98 17,362 2,850,000 75.86% 1.21 30/360
851280 0 11/01/98 17,362 2,750,000 78.62% 1.21 30/360
851282 0 12/01/98 10,243 4,750,000 36.03% 3.37 Actual/360
851283 0 10/01/98 9,407 2,900,000 51.27% 2.19 Actual/360
851284 0 12/01/98 4,977 2,100,000 40.15% 3.10 Actual/360
851285 0 12/01/98 12,699 3,350,000 62.21% 2.56 Actual/360
851286 0 11/01/98 6,972 2,950,000 40.31% 3.45 Actual/360
851288 0 12/01/98 6,141 1,350,000 69.93% 1.74 Actual/360
851292 0 11/01/98 7,496 1,650,000 65.90% 1.59 Actual/360
851296 0 11/01/98 5,647 1,250,000 72.99% 1.44 Actual/360
851299 0 12/01/98 13,324 2,395,000 61.02% 1.39 Actual/360
851303 0 12/01/98 36,994 7,700,000 72.26% 1.40 Actual/360
851305 0 11/01/98 18,959 4,300,000 65.48% 1.59 Actual/360
851306 0 11/01/98 31,949 7,200,000 70.78% 1.60 30/360
851307 0 11/01/98 16,918 5,335,000 26.57% 2.38 30/360
851308 0 11/01/98 8,375 3,460,000 27.19% 2.90 Actual/360
851310 0 11/01/98 15,121 2,540,000 73.53% 1.64 30/360
851312 0 02/01/99 15,399 2,900,000 69.17% 1.46 Actual/360
851317 0 12/01/98 53,779 10,800,000 63.37% 1.62 Actual/360
851319 0 12/01/98 4,687 1,200,000 54.04% 1.86 Actual/360
851320 0 11/01/98 1,828 470,000 56.74% 1.44 30/360
851322 0 12/01/98 13,438 2,300,000 57.69% 1.72 Actual/360
851323 0 11/01/98 10,066 3,050,000 51.76% 2.43 Actual/360
851327 0 12/01/98 29,538 5,200,000 73.81% 1.27 Actual/360
851328 0 10/01/98 13,880 3,570,000 58.36% 1.78 Actual/360
851329 0 11/01/98 10,413 2,450,000 63.70% 1.61 Actual/360
851330 0 11/01/98 11,871 2,900,000 59.64% 1.96 Actual/360
851333 0 01/01/99 15,215 9,250,000 26.85% 3.96 Actual/360
851334 0 11/01/98 10,783 2,300,000 70.85% 1.75 Actual/360
851335 0 12/01/98 9,231 2,350,000 54.35% 1.86 Actual/360
851336 0 11/01/98 15,095 2,590,000 73.72% 1.23 Actual/360
851337 0 11/01/98 24,232 6,010,000 48.67% 1.79 30/360
851338 0 01/01/99 39,792 7,750,000 63.67% 1.25 30/360
851340 0 01/01/99 18,937 5,250,000 47.46% 1.82 30/360
851341 0 01/01/99 9,469 2,490,000 50.03% 1.91 30/360
851342 0 01/01/99 19,777 5,070,000 51.32% 1.66 30/360
851343 0 11/01/98 9,558 2,225,000 62.20% 1.48 Actual/360
851344 0 11/01/98 10,707 2,800,000 53.01% 1.88 Actual/360
851347 0 12/01/98 20,100 4,425,000 71.80% 1.65 Actual/360
851348 0 11/01/98 13,055 2,750,000 68.31% 1.46 Actual/360
851349 0 01/01/99 11,253 2,075,000 74.10% 1.43 Actual/360
851351 0 01/01/99 8,713 1,580,000 67.20% 1.30 Actual/360
851352 0 01/01/99 13,367 3,200,000 61.92% 2.01 Actual/360
851353 0 11/01/98 10,998 2,800,000 59.08% 1.73 Actual/360
851354 0 03/01/99 45,584 10,500,000 41.87% 1.66 30/360
851355 0 01/01/99 8,705 2,020,000 60.14% 1.48 Actual/360
851356 0 01/01/99 11,358 2,050,000 69.67% 1.29 Actual/360
851357 0 12/01/98 5,806 1,575,000 40.21% 2.15 Actual/360
851358 0 12/01/98 6,834 1,500,000 72.80% 1.78 Actual/360
851359 0 12/01/98 7,409 3,300,000 29.79% 3.06 30/360
851360 0 12/01/98 5,327 1,155,000 68.52% 1.57 Actual/360
851361 0 01/01/99 12,238 2,800,000 62.31% 1.62 Actual/360
851362 0 12/01/98 6,295 2,200,000 46.47% 2.10 Actual/360
851363 0 02/01/99 9,469 1,785,000 58.77% 1.88 30/360
851364 0 12/01/98 13,473 3,380,000 52.37% 1.62 30/360
851365 0 01/01/99 18,045 4,160,000 69.28% 1.79 Actual/360
851367 0 11/01/98 67,414 13,300,000 74.12% 1.41 Actual/360
851369 0 12/01/98 25,723 5,425,000 53.80% 1.49 Actual/360
851370 0 04/01/99 37,888 6,800,000 74.66% 1.38 30/360
851371 0 12/01/98 15,906 4,000,000 59.35% 1.47 Actual/360
851372 0 12/01/98 10,826 2,150,000 63.00% 1.58 Actual/360
851373 0 01/01/99 8,941 2,700,000 51.54% 2.09 Actual/360
851374 0 11/01/98 4,637 1,140,000 65.26% 1.83 Actual/360
851377 0 12/01/98 12,456 2,800,000 52.06% 1.64 Actual/360
851378 0 12/01/98 26,848 4,800,000 60.90% 1.19 Actual/360
851381 0 12/01/98 24,222 5,230,000 52.09% 1.56 30/360
851382 0 01/01/99 7,037 1,270,000 63.45% 1.32 Actual/360
851383 0 01/01/99 11,542 3,200,000 52.64% 1.61 Actual/360
851384 0 01/01/99 47,411 11,200,000 55.04% 1.77 Actual/360
851385 0 01/01/99 27,044 5,500,000 63.23% 1.47 Actual/360
851386 0 01/01/99 24,608 4,100,000 73.47% 1.43 Actual/360
851387 0 01/01/99 18,281 3,600,000 74.29% 1.70 30/360
851388 0 01/01/99 25,801 6,000,000 62.74% 1.37 30/360
851389 0 12/01/98 10,586 2,400,000 48.70% 1.76 Actual/360
851390 0 02/01/99 14,548 3,100,000 53.71% 1.51 30/360
851391 0 01/01/99 11,650 7,480,000 18.41% 3.42 Actual/360
851392 0 12/01/98 10,147 2,450,000 60.58% 1.85 Actual/360
851393 0 01/01/99 12,804 3,000,000 65.27% 1.85 30/360
851394 0 01/01/99 10,966 2,270,000 72.05% 1.53 30/360
851395 0 01/01/99 13,892 2,850,000 74.54% 1.72 30/360
851396 0 01/01/99 10,500 2,275,000 68.83% 1.53 30/360
851398 0 01/01/99 9,100 1,820,000 74.56% 1.34 30/360
851399 0 01/01/99 25,835 5,300,000 74.54% 1.63 30/360
851400 0 01/01/99 46,508 9,600,000 74.54% 1.46 30/360
851401 0 01/01/99 14,077 3,700,000 50.62% 1.69 Actual/360
851402 0 02/01/99 8,063 2,000,000 33.76% 2.06 Actual/360
851403 0 04/01/99 42,468 7,515,000 71.59% 1.35 Actual/360
851404 0 02/01/99 35,403 8,400,000 64.91% 1.68 Actual/360
851405 0 01/01/99 12,565 2,700,000 54.91% 1.67 Actual/360
851406 0 04/01/99 27,452 5,000,000 71.72% 1.39 Actual/360
851408 0 02/01/99 16,963 7,820,000 30.46% 2.98 30/360
851409 0 01/01/99 13,940 4,700,000 43.02% 2.61 Actual/360
851411 0 01/01/99 25,967 6,283,191 59.94% 2.36 Actual/360
851415 0 01/01/99 21,641 4,480,000 71.51% 1.54 30/360
851416 0 01/01/99 11,018 2,930,000 55.77% 1.83 30/360
851418 0 01/01/99 9,006 2,200,000 58.58% 1.67 Actual/360
851419 0 02/01/99 40,258 7,965,000 70.42% 1.43 Actual/360
851420 0 12/01/98 16,435 3,700,000 70.10% 1.63 Actual/360
851421 0 01/01/99 7,414 3,060,000 35.62% 2.75 Actual/360
851423 0 05/01/99 17,859 3,400,000 67.45% 1.28 Actual/360
851424 0 01/01/99 15,785 9,100,000 27.31% 6.14 Actual/360
851425 0 01/01/99 34,577 8,100,000 61.19% 1.86 Actual/360
851426 0 01/01/99 14,740 3,200,000 69.00% 1.66 Actual/360
851428 0 01/01/99 25,295 6,810,000 56.69% 2.15 30/360
851429 0 02/01/99 8,028 1,440,000 72.46% 1.53 Actual/360
851430 0 02/01/99 21,552 3,500,000 73.41% 1.16 Actual/360
851433 0 12/01/98 29,115 7,000,000 60.79% 1.54 Actual/360
851434 0 01/01/99 10,002 3,000,000 46.28% 1.83 Actual/360
851435 0 02/01/99 30,878 6,750,000 70.75% 1.57 Actual/360
851438 0 02/01/99 31,615 6,840,000 69.42% 1.59 Actual/360
851439 0 01/01/99 78,425 18,000,000 63.43% 1.54 Actual/360
851441 0 02/01/99 18,225 2,900,000 53.20% 1.34 Actual/360
851442 0 01/01/99 8,111 1,360,000 72.62% 1.35 Actual/360
851443 0 06/01/99 74,229 12,500,000 68.85% 1.40 30/360
851444 0 02/01/99 57,962 11,500,000 58.54% 1.40 30/360
851445 0 02/01/99 89,500 16,500,000 63.00% 1.40 30/360
851446 0 02/01/99 25,571 5,900,000 50.34% 1.40 30/360
851447 0 06/01/99 35,633 6,400,000 44.59% 1.40 30/360
851449 0 04/01/99 11,400 2,150,000 74.54% 1.48 Actual/360
851450 0 01/01/99 15,125 2,950,000 78.20% 1.53 Actual/360
851451 0 01/01/99 5,508 1,500,000 51.89% 1.70 Actual/360
851452 0 01/01/99 13,932 3,093,000 64.10% 1.45 Actual/360
851453 0 02/01/99 10,314 2,250,000 66.37% 1.46 Actual/360
851454 0 03/01/99 52,376 9,850,000 71.41% 1.41 Actual/360
851455 0 02/01/99 46,060 9,100,000 71.98% 1.35 Actual/360
851456 0 01/01/99 12,530 2,065,000 67.43% 1.15 Actual/360
851457 0 02/01/99 8,643 1,850,000 64.41% 1.81 Actual/360
851459 0 02/01/99 34,451 7,180,000 69.10% 1.67 Actual/360
851460 0 02/01/99 56,969 13,600,000 63.29% 1.77 Actual/360
851463 0 02/01/99 10,864 2,200,000 74.38% 1.62 Actual/360
851464 0 02/01/99 17,463 3,725,000 66.61% 1.73 Actual/360
851465 0 03/01/99 72,691 16,500,000 63.52% 1.76 Actual/360
851467 0 02/01/99 21,527 3,500,000 74.91% 1.28 Actual/360
851468 0 02/01/99 39,401 8,800,000 62.05% 1.53 Actual/360
851469 0 02/01/99 34,105 11,000,000 45.10% 2.09 Actual/360
851472 0 03/01/99 22,108 5,960,000 40.86% 1.35 Actual/360
851476 0 02/01/99 137,449 34,100,000 56.76% 1.89 Actual/360
851477 0 02/01/99 10,611 3,500,000 42.54% 1.99 Actual/360
851478 0 01/01/99 14,453 3,211,000 62.01% 1.37 Actual/360
851479 0 03/01/99 26,963 5,400,000 53.78% 1.23 Actual/360
851481 0 02/01/99 22,949 4,890,000 50.17% 1.81 30/360
851484 0 03/01/99 12,036 3,900,000 44.58% 1.84 Actual/360
851485 0 01/01/99 30,818 8,250,000 52.88% 1.66 Actual/360
851486 0 03/01/99 11,577 2,100,000 71.05% 1.32 Actual/360
851487 0 04/01/99 12,735 2,300,000 71.47% 1.34 Actual/360
851488 0 03/01/99 43,222 7,750,000 71.87% 1.34 Actual/360
851493 0 03/01/99 12,048 2,950,000 57.27% 1.63 30/360
851494 0 05/01/99 11,304 2,700,000 57.21% 2.13 30/360
851498 0 02/01/99 52,082 13,200,000 56.57% 1.60 Actual/360
851499 0 03/01/99 179,074 42,850,000 59.98% 1.37 Actual/360
851500 0 02/01/99 81,780 21,000,000 56.88% 1.59 Actual/360
851501 0 05/01/99 11,863 2,900,000 56.77% 1.85 Actual/360
851503 0 06/01/99 19,687 3,800,000 70.64% 1.33 Actual/360
851507 0 02/01/99 24,642 4,000,000 66.25% 1.44 Actual/360
851508 0 03/01/99 15,016 3,100,000 65.74% 1.33 Actual/360
851520 0 05/01/99 11,183 3,200,000 46.73% 1.75 Actual/360
851525 0 05/01/99 27,264 4,970,000 58.02% 1.25 Actual/360
851526 0 06/01/99 11,041 2,670,000 56.43% 1.33 Actual/360
851528 0 04/01/99 21,043 3,910,000 72.58% 1.37 Actual/360
851530 0 05/01/99 14,967 3,070,000 63.33% 1.43 Actual/360
851539 0 06/01/99 12,268 1,980,000 75.51% 1.45 Actual/360
851548 0 06/01/99 34,726 7,300,000 64.92% 1.46 Actual/360
851550 0 05/01/99 165,727 36,000,000 63.67% 1.55 Actual/360
851555 0 07/01/99 13,995 2,390,000 74.92% 1.37 Actual/360
851556 0 07/01/99 12,122 2,300,000 69.52% 1.37 Actual/360
851560 0 07/01/99 26,555 9,200,000 40.73% 2.13 Actual/360
851563 0 06/01/99 147,826 33,400,000 66.97% 1.43 Actual/360
851565 0 07/01/99 15,095 2,600,000 73.00% 1.19 Actual/360
851569 0 08/01/99 11,419 2,000,000 75.00% 1.53 Actual/360
851577 0 08/01/99 24,492 4,700,000 72.87% 1.53 Actual/360
851578 0 08/01/99 49,245 11,300,000 62.39% 1.86 Actual/360
851579 0 08/01/99 38,558 9,700,000 56.96% 1.87 Actual/360
851580 0 08/01/99 90,644 19,800,000 64.77% 1.61 Actual/360
851581 0 08/01/99 20,173 4,600,000 62.50% 1.73 Actual/360
851582 0 08/01/99 26,969 7,200,000 53.82% 1.98 Actual/360
851586 0 08/01/99 22,295 4,385,000 70.70% 1.36 Actual/360
851802 0 10/01/98 68,218 13,750,000 72.19% 1.30 Actual/360
851806 0 10/01/98 19,083 3,760,000 65.19% 1.30 Actual/360
851808 0 10/01/98 18,700 4,100,000 49.57% 1.51 Actual/360
851809 0 12/01/98 14,955 2,700,000 73.72% 1.21 Actual/360
<PAGE>
<CAPTION>
REAL EFFECTIVE FREE PREPAY
LOAN PROPERTY LOCKOUT PERIOD WINDOW
NUMBER INTEREST LIEN POSITION CALL PROTECTION (MOS.) (MOS.)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
850937 Fee First > 1% or YM 36 6
850952 Fee First Defeasance 114 6
850995 Fee First Defeasance 114 6
851072 Fee First Defeasance 109 6
851087 Fee First Defeasance 234 6
851122 Leasehold First > 1% or YM 84 6
851129 Fee First Defeasance 114 6
851171 Fee First Defeasance 114 6
851174 Fee First Defeasance 114 6
851192 Fee First > 1% or YM / Declining Penalty 60 6
851195 Fee First Defeasance 114 6
851200 Fee First Defeasance / > 1% or YM 36 6
851203 Fee First Defeasance / > 1% or YM 36 6
851219 Fee First Defeasance / > 1% or YM 36 6
851236 Fee First Defeasance 174 6
851238 Fee First Defeasance 114 6
851242 Fee First Defeasance 114 6
851243 Fee First Defeasance 114 6
851244 Fee First Declining Penalty 12
851245 Fee First Declining Penalty 36
851246 Fee First Defeasance 174 6
851248 Fee First Defeasance / > 1% or YM 36 6
851250 Fee First Defeasance / > 1% or YM 36 6
851252 Fee First Defeasance 174 6
851256 Fee First Defeasance 174 6
851258 Fee First Defeasance 115 6
851260 Fee First Defeasance 114 6
851261 Fee First Defeasance / > 1% or YM 60 6
851263 Fee First Defeasance 114 6
851264 Fee First Defeasance 114 6
851265 Fee First Defeasance / > 1% or YM 36 6
851266 Fee First Defeasance 114 6
851267 Fee First Defeasance 114 6
851272 Fee First Defeasance / > 1% or YM 36 6
851273 Fee First Defeasance / > 1% or YM 36 6
851275 Fee First Defeasance 174 6
851278 Fee First Defeasance 114 6
851279 Fee First Defeasance 234 6
851280 Fee First Defeasance 234 6
851282 Fee First Defeasance / > 1% or YM 24 6
851283 Fee First Defeasance / > 1% or YM 35 6
851284 Fee First Defeasance / > 1% or YM 33 6
851285 Fee First Defeasance / > 1% or YM 24 6
851286 Fee First Defeasance / > 1% or YM 34 6
851288 Fee First Defeasance 114 6
851292 Fee First Defeasance / > 1% or YM 36 6
851296 Fee First > 1% or YM 36 6
851299 Fee First Defeasance 174 6
851303 Fee First Defeasance 114 6
851305 Fee First Defeasance / > 1% or YM 36 6
851306 Fee First Defeasance 114 6
851307 Fee First Declining Penalty 36 6
851308 Fee First Defeasance / > 1% or YM 36 6
851310 Fee First Defeasance 234 6
851312 Fee First Defeasance 114 6
851317 Leasehold First Defeasance 174 6
851319 Fee First Defeasance / > 1% or YM 36 6
851320 Fee First Defeasance 114 6
851322 Fee First Defeasance / > 1% or YM 36 6
851323 Fee First Defeasance / > 1% or YM 37 6
851327 Fee First Defeasance 174 6
851328 Fee First Defeasance / > 1% or YM 36 6
851329 Fee First Defeasance 114 6
851330 Fee First Defeasance / > 1% or YM 36 6
851333 Fee First Declining Penalty 12
851334 Fee First Defeasance 114 6
851335 Fee First Defeasance / > 1% or YM 36 6
851336 Fee First Defeasance 234 6
851337 Fee First Defeasance 198 6
851338 Fee First Defeasance 234 6
851340 Fee First Defeasance 234 6
851341 Fee First Defeasance 234 6
851342 Fee First Defeasance 234 6
851343 Fee First Defeasance 114 6
851344 Fee First Defeasance / > 1% or YM 36 6
851347 Fee First Defeasance 114 6
851348 Fee First Defeasance 174 6
851349 Fee First Defeasance / > 1% or YM 59 6
851351 Fee First Defeasance 114 6
851352 Fee First Defeasance 114 6
851353 Fee First Defeasance / > 1% or YM 36 6
851354 Leasehold First Defeasance 138 6
851355 Fee First Defeasance / > 1% or YM 36 6
851356 Fee First Defeasance 234 6
851357 Fee First Defeasance 174 6
851358 Fee First Defeasance / > 1% or YM 36 6
851359 Fee First Defeasance / > 1% or YM 36 6
851360 Fee First Defeasance 114 6
851361 Fee First Defeasance 114 6
851362 Fee First Defeasance / > 1% or YM 36 6
851363 Fee First Defeasance 174 6
851364 Fee First Defeasance 235 6
851365 Fee First Defeasance 114 6
851367 Fee First Defeasance 174 6
851369 Fee First Defeasance 174 6
851370 Fee First Defeasance 114 6
851371 Fee First Defeasance / > 1% or YM 36 6
851372 Fee First Defeasance / > 1% or YM 48 6
851373 Fee First Defeasance / > 1% or YM 36 6
851374 Fee First Defeasance / > 1% or YM 36 6
851377 Fee First Defeasance / > 1% or YM 36 6
851378 Fee First Defeasance 174 6
851381 Fee First Defeasance 174 6
851382 Fee First Defeasance / > 1% or YM 60 6
851383 Fee First > 1% or YM 36 6
851384 Fee First Defeasance 234 6
851385 Fee First Defeasance 234 6
851386 Fee First Defeasance 234 6
851387 Fee First Defeasance 114 6
851388 Fee First Defeasance 114 6
851389 Fee First Defeasance / > 1% or YM 60 6
851390 Fee First Defeasance 174 6
851391 Fee First Defeasance / > 1% or YM 60 6
851392 Fee First Defeasance 174 6
851393 Fee First Defeasance 114 6
851394 Fee First Defeasance 114 6
851395 Fee First Defeasance 114 6
851396 Fee First Defeasance 114 6
851398 Fee First Defeasance 114 6
851399 Fee First Defeasance 114 6
851400 Fee First Defeasance 114 6
851401 Fee First Defeasance 115 6
851402 Fee First Defeasance 114 6
851403 Leasehold First Defeasance 114 6
851404 Fee First Defeasance 114 6
851405 Fee First Defeasance 234 6
851406 Leasehold First Defeasance 114 6
851408 Fee First Defeasance 114 6
851409 Fee First Defeasance 174 6
851411 Fee First Defeasance 174 6
851415 Fee First Defeasance 114 6
851416 Fee First Defeasance 114 6
851418 Fee First Defeasance / > 1% or YM 37 6
851419 Fee First Defeasance 234 6
851420 Fee First Defeasance / > 1% or YM 36 6
851421 Fee First Defeasance / > 1% or YM 36 6
851423 Fee First Defeasance 114 6
851424 Fee First Defeasance 114 6
851425 Fee First Declining Penalty 36 6
851426 Fee First Defeasance 174 6
851428 Fee First Defeasance 114 6
851429 Fee First Defeasance / > 1% or YM 36 6
851430 Fee First Defeasance 222 6
851433 Fee First Defeasance 114 6
851434 Fee First Defeasance 174 6
851435 Fee First Defeasance / > 1% or YM 36 6
851438 Fee First Defeasance 114 6
851439 Fee First Defeasance 114 6
851441 Fee First Defeasance / > 1% or YM 36 6
851442 Fee First Defeasance / > 1% or YM 84 6
851443 Fee First Defeasance 230 6
851444 Fee First Defeasance 234 6
851445 Fee First Defeasance 234 6
851446 Fee First Defeasance 234 6
851447 Fee First Defeasance 110 6
851449 Fee First Defeasance 114 6
851450 Fee First Defeasance 114 6
851451 Fee First Defeasance 114 6
851452 Fee First Defeasance 114 6
851453 Fee First Defeasance 114 6
851454 Fee First Defeasance 114 6
851455 Fee First Defeasance 78 6
851456 Fee First Defeasance / > 1% or YM 36 6
851457 Fee First Defeasance / > 1% or YM 36 6
851459 Fee First Defeasance / > 1% or YM 36 6
851460 Fee First Defeasance 114 6
851463 Fee First Defeasance 114 6
851464 Fee First Defeasance 114 6
851465 Fee First Defeasance 114 6
851467 Fee First Defeasance 234 6
851468 Fee First Defeasance 114 6
851469 Fee First Defeasance 114 6
851472 Fee First Defeasance 174 6
851476 Fee First Defeasance 114 6
851477 Fee First Defeasance / > 1% or YM 36 6
851478 Fee First Defeasance / > 1% or YM 36 6
851479 Fee First Defeasance / > 1% or YM 36 6
851481 Fee First Defeasance 174 6
851484 Fee First Defeasance / > 1% or YM 36 6
851485 Fee First Defeasance 116 4
851486 Fee First Defeasance 114 6
851487 Fee First Defeasance 114 6
851488 Fee First Defeasance 114 6
851493 Fee First Defeasance 114 6
851494 Fee First Defeasance 114 6
851498 Leasehold First Defeasance 78 6
851499 Fee First Defeasance 78 6
851500 Fee First Defeasance 78 6
851501 Fee First Defeasance 114 6
851503 Fee First Defeasance 114 6
851507 Fee First Defeasance 174 6
851508 Fee First > 1% or YM 61 7
851520 Fee First Defeasance / > 1% or YM 36 6
851525 Fee First Defeasance / > 1% or YM 60 6
851526 Fee First Defeasance 114 6
851528 Fee First Defeasance 114 6
851530 Fee First Defeasance / > 1% or YM 36 6
851539 Fee First Defeasance 234 6
851548 Fee First Defeasance 114 6
851550 Fee First Defeasance 114 6
851555 Fee First Defeasance / > 1% or YM 35 6
851556 Fee First Defeasance 114 6
851560 Fee First Defeasance 114 6
851563 Fee First Defeasance 114 6
851565 Fee First Defeasance 114 6
851569 Fee First Defeasance / YM 35 6
851577 Fee First Defeasance 117 3
851578 Fee First Defeasance 117 3
851579 Fee First Defeasance 117 3
851580 Fee First Defeasance 117 3
851581 Fee First Defeasance 117 3
851582 Fee First Defeasance 117 3
851586 Fee First Defeasance 117 3
851802 Fee First > 1% or YM 49 3
851806 Fee First Defeasance 117 3
851808 Fee First Defeasance 116 4
851809 Fee First Defeasance 116 4
</TABLE>
