<PAGE>
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: February 22, 1999
----------------------------
(Date of earliest event reported)
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
--------------------------------------------------------------
(Exact name of registrant as specified in its charter)
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<CAPTION>
<S> <C> <C>
DELAWARE 333-61783 3411414
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer Identification No.)
of Incorporation)
</TABLE>
245 Park Avenue, New York, NY 10167
-----------------------------------
(Address of principal executive offices)
Registrant's telephone number, including area code: (212) 272-2000
ITEM 5. OTHER EVENTS
On February 10, 1999, Bear Stearns Commercial Mortgage
Securities Inc. (the "Company") caused the issuance, pursuant to a Pooling and
Servicing Agreement, dated as of February 1, 1999 (the "Pooling and Servicing
Agreement"), by and among the Company, as depositor, GE Capital Loan Services,
Inc., as servicer, GE Capital Realty Group, Inc., as special servicer, LaSalle
National Bank, as Trustee, and ABN Amro Bank, N.V., as fiscal 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 LR and Class R. The Class A-1, Class A-2, Class X,
Class B, Class C, Class D and Class E Certificates, with an aggregate scheduled
principal balance, as of February 10, 1999, of $439,763,663, were sold to Bear,
Stearns & Co. Inc., as underwiter (the "Underwriter"), pursuant to an
Underwriting Agreement dated as of June 11, 1998, by and between the Company
and the Underwriter, as supplemented by the Terms Agreement dated as of
January 28, 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 Terms Agreement, as Exhibit
4.1 is the Pooling and Servicing Agreement and as Exhibit 4.2 is the Mortgage
Loan Purchase and Sale Agreement for Bear Stearns Commercial Mortgage
Securities Inc. Commercial Mortgage Pass-Through Certificates, Series 1999-C1
(the "Certificates").
<PAGE>
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.
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<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
Exhibit 1.1 Terms Agreement dated as of January 28, 1999, between the
Registrant and Bear, Stearns & Co. Inc.
Exhibit 4.1 Pooling and Servicing Agreement dated as of February 1,
1999, by and among the Registrant, as depositor, GE Capital
Loan Services, Inc., as servicer, GE Capital Realty Group,
Inc., as special servicer, LaSalle National Bank, as
trustee, and ABN AMRO Bank N.V., as fiscal agent.
Exhibit 4.2 Mortgage Loan Purchase and Sale Agreement dated as of
February 1, 1999, by and between the Registrant, as
purchaser and Bear, Stearns Funding, Inc., as seller.
</TABLE>
2
<PAGE>
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/ James G. Reichek
------------------------
Name: James G. Reichek
Title: Executive Vice President
Date: February 22, 1999
3
<PAGE>
EXHIBIT INDEX
Item 601(a) of Regulation S-K
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<CAPTION>
Exhibit No. Description
- ----------- ------------
<S> <C>
Exhibit 1.1 Terms Agreement dated as of January 28, 1999, between the Registrant
and Bear, Stearns & Co. Inc.
Exhibit 4.1 Pooling and Servicing Agreement dated as of February 1, 1999, by and
among the Registrant, as depositor, GE Capital Loan Services, Inc.,
as servicer, GE Capital Realty Group, Inc., as special servicer,
LaSalle National Bank, as trustee, and ABN AMRO Bank N.V., as fiscal
agent.
Exhibit 4.2 Mortgage Loan Purchase and Sale Agreement dated as of February 1,
1999, by and between the Registrant, as purchaser and Bear, Stearns
Funding, Inc., as seller.
</TABLE>
A-1
<PAGE>
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
Commercial Mortgage Pass-Through Certificates
TERMS AGREEMENT
Dated: as of January 28, 1999
To: BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
Re: Underwriting Agreement dated June 11, 1998
Underwriter: Bear, Stearns & Co. Inc.
Series Designation: Series 1999-C1
Class Designation Schedule of the Certificates: Class A-1, Class A-2, Class B,
Class C, Class D, Class E and Class X Certificates
Terms of the Certificates to be Purchased by the Underwriter:
Class Original Principal Amount Interest Rate
- ----- ------------------------- -------------
A-1 $ 89,632,000 5.91%
A-2 $280,821,086 6.02%
B $ 23,900,199 6.20%
C $ 17,925,149 6.53%
D $ 21,510,179 6.53%
E $ 5,975,050 6.53%
X $478,003,982(1) 0.5834(2)%
(1) The Class X Certificates are interest-only certificates. Class X
Certificatesholders 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 stated principal balances of the Mortgage Loans.
(2) 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 servicing fee rate,
over (ii) the weighted average of the Pass-Through Rates of the other classes of
Certificates.
1
<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 February 1,
1999, among Bear Stearns Commercial Mortgage Securities Inc., as depositor, GE
Capital Loan Services, Inc., as servicer, GE Capital Realty Group, Inc., as
special servicer, LaSalle National Bank, as trustee and ABN AMRO Bank, N.V., as
fiscal agent.
Form of Certificates Being Purchased by the Underwriter: Book Entry.
Distribution Dates: The 14th day of each month or, if such 14th day is not a
business day, the next succeeding business day, commencing on March 15, 1999.
Certificate Rating for the Certificates Being Purchased by the Underwriters:
Rating
Class Moody's* S&P**
- ----- -------- -----
A-1 Aaa AAA
A-2 Aaa AAA
B Aa2 AA
C A2 A
D Baa2 NR***
E Baa3 NR***
X Aaa AAAr
* Moody's Investors Service, Inc.
** Standard & Poor's Ratings Services, a Division of the McGraw-Hill Companies,
Inc.
*** "NR" means not rated.
Mortgage Assets: The initial amounts to be included in any Reserve Account and
other accounts are as set forth in, and 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 Underwriter for the
Certificates covered by this Agreement will be $479,655,106.81 (plus accrued
interest).
Credit Enhancement: None other than the subordination described in the related
Prospectus Supplement.
Closing Date: February 10, 1999, 10:00 a.m., New York time at the offices of
O'Melveny & Myers LLP, New York, New York.
[Remainder of Page Intentionally Left Blank]
<PAGE>
The undersigned, as the Underwriter, 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 as set
forth herein.
BEAR, STEARNS & CO. INC.
By:_____________________________
Name:
Title:
Accepted:
BEAR STEARNS COMMERCIAL MORTGAGE
SECURITIES INC.
By:_____________________________
Name:
Title:
S-1
<PAGE>
Annex A
Mortgage Loan Schedule
SEE EXHIBIT B OF THE POOLING AND SERVICING AGREEMENT
A-1
<PAGE>
===============================================================================
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.,
DEPOSITOR
GE CAPITAL LOAN SERVICES, INC.
SERVICER
GE CAPITAL REALTY GROUP, INC.
SPECIAL SERVICER
LASALLE NATIONAL BANK,
TRUSTEE
AND
ABN AMRO BANK N.V.
FISCAL AGENT
POOLING AND SERVICING AGREEMENT
DATED AS OF FEBRUARY 1, 1999
$478,003,982
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1
===============================================================================
<PAGE>
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<CAPTION>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
<S> <C> <C>
SECTION 1.01. Defined Terms....................................................................4
SECTION 1.02. Certain Calculations............................................................55
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans....................................................56
SECTION 2.02. Acceptance by Trustee...........................................................59
SECTION 2.03. Representations, Warranties and Covenants of the Depositor; Mortgage Loan
Seller's Repurchase of Mortgage Loans for Defects in Mortgage Files and
Breaches of Representations and Warranties......................................60
SECTION 2.04. Execution of Certificates.......................................................63
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Servicer to Act as Servicer; Special Servicer to Act as Special Servicer;
Administration of the Mortgage Loans............................................63
SECTION 3.02. Collection of Payments..........................................................66
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts..........68
SECTION 3.04. The Certificate Account, Pari Passu Account and the Lower-Tier and
Upper-Tier Distribution Accounts................................................70
SECTION 3.05. Permitted Withdrawals From the Certificate Account, Pari Passu Account
and the Distribution Accounts...................................................73
SECTION 3.06. Investment of Funds in the Certificate Account, Pari Passu Account the
Interest Reserve Accounts or REO Accounts.......................................78
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity
Coverage........................................................................79
SECTION 3.08. Enforcement of Due-On-Sale Clauses; Assumption Agreements.......................83
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.......................................85
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.................................88
SECTION 3.11. Servicing Compensation..........................................................89
SECTION 3.12. Inspections; Collection of Financial Statements.................................92
SECTION 3.13. Annual Statement as to Compliance...............................................94
SECTION 3.14. Reports by Independent Public Accountants.......................................94
SECTION 3.15. Access to Certain Information...................................................95
-i-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
SECTION 3.16. Title to REO Property; REO Account..............................................95
SECTION 3.17. Management of REO Property......................................................97
SECTION 3.18. Sale of Defaulted Mortgage Loans and REO Properties.............................99
SECTION 3.19. [Intentionally Omitted]........................................................101
SECTION 3.20. Modifications, Waivers, Amendments and Consents................................101
SECTION 3.21. Transfer of Servicing Between Servicer and Special Servicer; Record
Keeping; Asset Status Report...................................................105
SECTION 3.22. Sub-Servicing Agreements.......................................................109
SECTION 3.23. Representations and Warranties of the Servicer.................................112
SECTION 3.24. Representations and Warranties of the Special Servicer.........................114
SECTION 3.25. Interest Reserve Account.......................................................116
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions..................................................................116
SECTION 4.02. Statements to Certificateholders; CSSA Standard Information Package............125
SECTION 4.03. P&I Advances...................................................................131
SECTION 4.04. Allocation of Collateral Support Deficit.......................................133
SECTION 4.05. Appraisal Reductions...........................................................133
SECTION 4.06. Certificate Deferred Interest..................................................133
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates...............................................................134
SECTION 5.02. Registration of Transfer and Exchange of Certificates..........................136
SECTION 5.03. Book-Entry Certificates........................................................145
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates..............................147
SECTION 5.05. Persons Deemed Owners..........................................................148
SECTION 5.06. Appointment of Paying Agent....................................................148
ARTICLE VI
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and the Special Servicer..............148
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the Servicer or the
Special Servicer...............................................................149
-ii-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer, the Special
Servicer and Others............................................................149
SECTION 6.04. Depositor, Servicer and Special Servicer Not to Resign.........................151
SECTION 6.05. Rights of the Depositor in Respect of the Servicer and the Special
Servicer.......................................................................152
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default; Servicer and Special Servicer Termination...................152
SECTION 7.02. Trustee to Act; Appointment of Successor.......................................156
SECTION 7.03. Notification to Certificateholders.............................................157
SECTION 7.04. Waiver of Events of Default....................................................157
SECTION 7.05. Trustee and Fiscal Agent as Makers of Advances.................................157
ARTICLE VIII
CONCERNING THE TRUSTEE AND FISCAL AGENT
SECTION 8.01. Duties of Trustee..............................................................158
SECTION 8.02. Certain Matters Affecting the Trustee..........................................159
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.................................................161
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates..................................161
SECTION 8.05. Payment of Trustee's Fees; Indemnification of Trustee..........................161
SECTION 8.06. Eligibility Requirements for Trustee...........................................162
SECTION 8.07. Resignation and Removal of the Trustee and the Fiscal Agent....................163
SECTION 8.08. Successor Trustee and Fiscal Agent.............................................165
SECTION 8.09. Merger or Consolidation of Trustee or Fiscal Agent.............................165
SECTION 8.12. Appointment of Custodians......................................................167
SECTION 8.13. Access to Certain Information..................................................167
SECTION 8.14. Representations and Warranties of the Trustee and the Fiscal Agent.............169
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans...............172
SECTION 9.02. Additional Termination Requirements............................................175
-iii-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration...............................................................176
SECTION 10.02. Depositor, Special Servicer, Paying Agent and Trustee
to Cooperate with Servicer.........................................................179
SECTION 10.03. Use of Agents......................................................................180
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment..........................................................................180
SECTION 11.02. Recordation of Agreement; Counterparts.............................................182
SECTION 11.03. Limitation on Rights of Certificateholders.........................................183
SECTION 11.04. Governing Law......................................................................184
SECTION 11.05. Notices............................................................................184
SECTION 11.06. Severability of Provisions.........................................................185
SECTION 11.07. Confirmation of Intent: Grant of a Security Interest...............................185
SECTION 11.08. Successors and Assigns; Beneficiaries..............................................185
SECTION 11.09. Article and Section Headings.......................................................185
SECTION 11.10. Notices to the Rating Agencies.....................................................185
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<PAGE>
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class B Certificate
Exhibit A-4 Form of Class C Certificate
Exhibit A-5 Form of Class D Certificate
Exhibit A-6 Form of Class E Certificate
Exhibit A-7 Form of Class F Certificate
Exhibit A-8 Form of Class G Certificate
Exhibit A-9 Form of Class H Certificate
Exhibit A-10 Form of Class I Certificate
Exhibit A-11 Form of Class J Certificate
Exhibit A-12 Form of Class K Certificate
Exhibit A-13 Form of Class L Certificate
Exhibit A-14 Form of Class X Certificate
Exhibit A-15 Form of Class R Certificate
Exhibit A-16 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E [Intentionally Omitted]
Exhibit F Form of Request for Release
Exhibit G Form of ERISA Representation Letter
Exhibit H Form of Distribution Date Statement
Exhibit I-1 Form of Comparative Financial Status Report
Exhibit I-2 Form of Delinquent Loan Status Report
Exhibit I-3 Form of Historical Loan Modification Report
Exhibit I-4 Form of Historical Loss Estimate Report
Exhibit I-5 Form of REO Status Report
Exhibit I-6 Form of Watch List Report
Exhibit I-7 Form of Operating Statement Analysis Report
Exhibit I-8 Form of NOI Adjustment Worksheet
Exhibit I-9 Form of CSSA Loan Set-up File
Exhibit I-10 Form of CSSA Periodic Loan Update File
Exhibit I-11 Form of CSSA Property Data File
Exhibit J Form of Payments After Determination Report
Exhibit K Certificate of Insurance of Servicer and Special
Servicer
SCHEDULES
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans Which Initially Pay Interest Only
Schedule 3 Mortgage Loans Without Defeasance Provisions
Schedule 4 Interest Reserve Loans
i
<PAGE>
This Pooling and Servicing Agreement (the "Agreement"), is dated and
effective as of February 1, 1999 by and among BEAR STEARNS COMMERCIAL MORTGAGE
SECURITIES INC. as Depositor, GE Capital Loan Services, Inc., as Servicer, GE
Capital Realty Group, Inc., as Special Servicer, ABN AMRO Bank N.V. as Fiscal
Agent and LaSalle National Bank, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily, congregate care, and manufactured housing community mortgage loans
(the "Mortgage Loans"). GE Capital Loan Services, Inc. is purchasing the initial
right to be the Servicer of the Mortgage Loans pursuant to a Servicing Rights
Purchase Agreement dated January __, 1999 (the "Servicing Rights Purchase
Agreement"), by and between Depositor, as Seller, and GE Capital Loan Services,
Inc., as Purchaser. As provided herein, the Trustee shall elect or shall cause
an election to be made that each of the Upper-Tier REMIC and the Lower-Tier
REMIC be treated for federal income tax purposes as a real estate mortgage
investment conduit (a "REMIC").
The following table sets forth the designation, the
pass-through rate (the "Pass-Through Rate"), the aggregate initial principal
amount (the "Original Certificate Balance") or Notional Amount ("Original
Notional Amount"), as applicable, and the initial ratings given each Class by
the Rating Agencies (the "Original Ratings") for each Class of Certificates
comprising the interests in the Upper-Tier REMIC created hereunder:
[ Next Page is Page 2 ]
1
<PAGE>
UPPER-TIER REMIC
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<CAPTION>
Class Pass- Original Original Rating (1)
Designation Through Rate Certificate Balance ---------------
- ----------- ------------ -------------------
<S> <C> <C> <C>
Class A-1 5.91% $ 89,632,000 "Aaa"/"AAA"
Class A-2 6.02% $ 280,821,086 "Aaa"/"AAA"
Class B 6.20% $ 23,900,199 "Aa2"/"AA"
Class C 6.53% $ 17,925,149 "A2"/"A"
Class D 6.53% $ 21,510,179 "Baa2"/NR*
Class E 6.53% $ 5,975,050 "Baa3"/NR*
Class F 5.64% $ 13,145,110 NR/"BB+"
Class G 5.64% $ 4,780,040 "Ba2"/NR*
Class H 5.64% $ 3,585,030 "Ba3"/NR*
Class I 5.64% $ 9,560,080 "B2"/NR*
Class J 5.64% $ 2,390,020 "B3"/NR*
Class K 5.64% $ 4,780,039 NR/NR*
Class X (2) (3) "Aaa"/"AAAr"
Class R None (4) NR/NR
</TABLE>
(1) MOODY'S INVESTORS SERVICE, INC/ STANDARD AND POOR'S RATINGS SERVICES, A
DIVISION OF THE MCGRAW-HILL COMPANIES, INC. THE CERTIFICATES MARKED
WITH AN ASTERISK HAVE NOT BEEN RATED BY THE APPLICABLE RATING AGENCY.
(2) THE CLASS X CERTIFICATES WILL NOT HAVE A PASS-THROUGH RATE BUT WILL
BEAR INTEREST IN AN AMOUNT FOR ANY DISTRIBUTION DATE EQUAL TO THE SUM
OF ONE-MONTH'S INTEREST AT THE THEN APPLICABLE PASS-THROUGH RATE ON THE
NOTIONAL AMOUNT OF EACH OF THE A-1 COMPONENT, THE A-2 COMPONENT, THE B
COMPONENT, THE C-E COMPONENT AND THE F-K COMPONENT IMMEDIATELY PRIOR TO
SUCH DISTRIBUTION DATE. THE PASS-THROUGH RATE FOR THE A-1 COMPONENT FOR
ANY DISTRIBUTION DATE WILL EQUAL THE EXCESS, IF ANY, OF THE WEIGHTED
AVERAGE NET MORTGAGE RATE OF ALL OF THE MORTGAGE LOANS OUTSTANDING ON
THE FIRST DAY OF THE RELATED INTEREST ACCRUAL PERIOD OVER THE CLASS A-1
PASS-THROUGH RATE. THE PASS-THROUGH RATE FOR THE A-2 COMPONENT FOR ANY
DISTRIBUTION DATE WILL EQUAL THE EXCESS, IF ANY, OF THE WEIGHTED
AVERAGE NET MORTGAGE RATE OF ALL OF THE MORTGAGE LOANS OUTSTANDING ON
THE FIRST DAY OF THE RELATED INTEREST ACCRUAL PERIOD OVER THE CLASS A-2
PASS-THROUGH RATE. THE PASS-THROUGH RATE FOR THE B COMPONENT FOR ANY
DISTRIBUTION DATE WILL EQUAL THE EXCESS, IF ANY, OF THE WEIGHTED
AVERAGE NET MORTGAGE RATE OF ALL OF THE MORTGAGE LOANS OUTSTANDING ON
THE FIRST DAY OF THE RELATED INTEREST ACCRUAL PERIOD OVER THE CLASS B
PASS-THROUGH RATE. THE PASS-THROUGH RATE FOR THE C-E COMPONENT FOR ANY
DISTRIBUTION DATE WILL EQUAL THE EXCESS, IF ANY, OF THE WEIGHTED
AVERAGE NET MORTGAGE RATE OF ALL OF THE MORTGAGE LOANS OUTSTANDING ON
THE FIRST DAY OF THE RELATED INTEREST ACCRUAL PERIOD OVER THE WEIGHTED
AVERAGE OF THE CLASS C PASS-THROUGH RATE, THE CLASS D PASS THROUGH RATE
AND THE CLASS E PASS-THROUGH RATE, WEIGHTED ON THE BASIS OF THE
RESPECTIVE CERTIFICATE BALANCES OF SUCH CLASSES IMMEDIATELY PRIOR TO
SUCH DISTRIBUTION DATE. THE PASS-THROUGH RATE FOR THE F-K COMPONENT FOR
ANY DISTRIBUTION DATE WILL EQUAL THE EXCESS, IF ANY, OF THE WEIGHTED
AVERAGE NET MORTGAGE RATE OF ALL OF THE MORTGAGE LOANS OUTSTANDING ON
THE FIRST DAY OF THE RELATED INTEREST ACCRUAL PERIOD OVER THE WEIGHTED
AVERAGE OF THE CLASS F PASS-THROUGH RATE, THE CLASS G PASS THROUGH
RATE, THE CLASS H PASS-THROUGH RATE, THE CLASS I PASS-THROUGH RATE, THE
CLASS J PASS-THROUGH RATE AND THE CLASS K PASS-THROUGH RATE, WEIGHTED
ON THE BASIS OF THE RESPECTIVE CERTIFICATE BALANCES OF SUCH CLASSES
IMMEDIATELY PRIOR TO SUCH DISTRIBUTION DATE. THE RATE AT WHICH THE
CLASS X CERTIFICATES WILL BEAR INTEREST FOR THE FIRST DISTRIBUTION DATE
IS EXPECTED TO BE APPROXIMATELY .58342% PER ANNUM.
(3) THE CLASS X CERTIFICATES WILL NOT HAVE A CERTIFICATE BALANCE AND WILL
NOT BE ENTITLED TO RECEIVE DISTRIBUTIONS OF PRINCIPAL. THE NOTIONAL
AMOUNT OF THE A-1 COMPONENT, THE A-2 COMPONENT AND THE B COMPONENT,
RESPECTIVELY, IS EQUAL TO THE LOWER-TIER PRINCIPAL AMOUNT OF THE CLASS
LA-1 UNCERTIFICATED INTEREST, THE CLASS LA-2 UNCERTIFICATED INTEREST OR
THE CLASS LB UNCERTIFICATED INTEREST, RESPECTIVELY, AS OF THE PRECEDING
DISTRIBUTION DATE (AFTER GIVING EFFECT TO THE DISTRIBUTION OF PRINCIPAL
AND ALLOCATION OF COLLATERAL SUPPORT DEFICIT ON SUCH DISTRIBUTION DATE)
OR IN THE CASE OF THE FIRST DISTRIBUTION DATE, THE ORIGINAL LOWER-TIER
PRINCIPAL AMOUNT OF THE CLASS LA-1 UNCERTIFICATED INTEREST, THE CLASS
LA-2 UNCERTIFICATED INTEREST OR THE CLASS LB UNCERTIFICATED INTEREST,
RESPECTIVELY. THE NOTIONAL AMOUNT OF THE C-E COMPONENT IS AN AMOUNT
EQUAL TO THE SUM OF (A) THE LOWER-TIER PRINCIPAL AMOUNT OF THE CLASS LC
UNCERTIFICATED INTEREST, (B) THE LOWER-TIER PRINCIPAL AMOUNT OF THE
CLASS LD UNCERTIFICATED INTEREST AND (C) THE LOWER-TIER PRINCIPAL
AMOUNT OF THE CLASS LE UNCERTIFICATED INTEREST, IN EACH CASE AS OF THE
PRECEDING DISTRIBUTION DATE (IN EACH CASE AFTER GIVING EFFECT TO THE
DISTRIBUTION OF PRINCIPAL AND ALLOCATION OF COLLATERAL SUPPORT DEFICIT
ON SUCH DISTRIBUTION DATE). THE NOTIONAL AMOUNT OF THE F-K COMPONENT
FOR ANY DISTRIBUTION DATE WILL BE EQUAL TO (I) THE LOWER-TIER PRINCIPAL
AMOUNT OF THE CLASS LF UNCERTIFICATED INTEREST, (II) THE LOWER-TIER
PRINCIPAL AMOUNT OF THE CLASS LG UNCERTIFICATED INTEREST, (III) THE
LOWER-TIER PRINCIPAL AMOUNT OF THE CLASS LH UNCERTIFICATED INTEREST,
(IV) THE LOWER-TIER PRINCIPAL AMOUNT OF THE CLASS LI UNCERTIFICATED
INTEREST, (V) THE LOWER-TIER PRINCIPAL AMOUNT OF THE CLASS LJ
UNCERTIFICATED INTEREST AND (VI) THE LOWER-TIER PRINCIPAL AMOUNT OF THE
CLASS LK UNCERTIFICATED INTEREST, RESPECTIVELY, AS OF THE PRECEDING
DISTRIBUTION DATE (IN EACH CASE AFTER GIVING EFFECT TO THE DISTRIBUTION
OF PRINCIPAL AND ALLOCATION OF COLLATERAL SUPPORT DEFICIT ON SUCH
DISTRIBUTION DATE). THE ORIGINAL NOTIONAL AMOUNT OF THE A-1 COMPONENT
IS $89,632,000. THE ORIGINAL NOTIONAL AMOUNT OF THE A-2 COMPONENT IS
$280,821,086. THE ORIGINAL NOTIONAL AMOUNT OF THE B COMPONENT IS
$23,900,199. THE ORIGINAL NOTIONAL AMOUNT OF THE C-E COMPONENT IS
$45,410,378. THE ORIGINAL NOTIONAL AMOUNT OF THE F-K COMPONENT IS
$38,240,320.
(4) THE CLASS R CERTIFICATES DO NOT HAVE A CERTIFICATE BALANCE OR NOTIONAL
AMOUNT, DO NOT BEAR INTEREST AND WILL NOT BE ENTITLED TO DISTRIBUTIONS
OF YIELD MAINTENANCE CHARGES. ANY AVAILABLE DISTRIBUTION AMOUNT
REMAINING IN THE UPPER-TIER DISTRIBUTION ACCOUNT, AFTER ALL REQUIRED
DISTRIBUTIONS UNDER THIS AGREEMENT HAVE BEEN MADE TO EACH OTHER CLASS
OF CERTIFICATES, WILL BE DISTRIBUTED TO THE HOLDERS OF THE CLASS R
CERTIFICATES.
2
<PAGE>
* AS USED HEREIN, "NR" MEANS THAT THE RELATED RATING AGENCY HAS NOT
ASSIGNED A RATING AT THE REQUEST OF THE DEPOSITOR.
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 and Class X Certificates
will evidence "regular interests" in the Upper-Tier REMIC created hereunder. The
sole Class of "residual interests" in the Upper-Tier REMIC created hereunder
will be evidenced by the Class R Certificates. The Class LA-1, Class LA-2, Class
LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LI, Class
LJ and Class LK Uncertificated Interests will evidence "regular interests" in
the Lower-Tier REMIC created hereunder. The sole Class of "residual interests"
in the Lower-Tier REMIC created hereunder will be evidenced by the Class LR
Certificates.
The following table sets forth the initial Lower-Tier
Principal Amounts and per annum rates of interest for the Uncertificated
Lower-Tier Interests:
LOWER-TIER REMIC
Class Designation Interest Rate Original Lower-Tier Principal Amount
- ----------------- ------------- or Notional Amount
------------------------------------
Class LA-1 (1) $89,632,000
Class LA-2 (1) $280,821,086
Class LB (1) $23,900,199
Class LC (1) $17,925,149
Class LD (1) $21,510,179
Class LE (1) $5,975,050
Class LF (1) $13,145,110
Class LG (1) $4,780,040
Class LH (1) $3,585,030
Class LI (1) $9,560,080
Class LJ (1) $2,390,020
Class LK (1) $4,780,039
Class LR None None(2)
(1) PASS-THROUGH RATE WILL BE THE WIEGHTED AVERAGE NET MORTGAGE RATE OF ALL
OF THE MORTGAGE LOANS OUTSTANDING ON THE FIRST DAY OF THE RELATED
INTEREST ACCRUAL PERIOD.
(2) THE CLASS LR CERTIFICATES DO NOT HAVE A CERTIFICATE BALANCE OR NOTIONAL
AMOUNT, DO NOT BEAR INTEREST AND WILL NOT BE ENTITLED TO DISTRIBUTIONS
OF YIELD MAINTENANCE CHARGES. ANY AVAILABLE DISTRIBUTION AMOUNT
REMAINING IN THE LOWER-TIER DISTRIBUTION ACCOUNT AFTER DISTRIBUTING THE
LOWER-TIER DISTRIBUTION AMOUNT SHALL BE DISTRIBUTED TO THE HOLDERS OF
THE CLASS LR CERTIFICATES (BUT ONLY TO THE EXTENT OF THE AVAILABLE
DISTRIBUTION AMOUNT FOR SUCH DISTRIBUTION DATE REMAINING IN THE
LOWER-TIER DISTRIBUTION ACCOUNT, IF ANY).
As of the close of business on the Cut-off Date, the Mortgage
Loans had an aggregate principal balance, after application of all payments of
principal due on or before such date, whether or not received, equal to
$478,003,982.08.
In consideration of the mutual agreements herein contained,
the Depositor, the Servicer, the Special Servicer, the Fiscal Agent and the
Trustee agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"A-1 Component": One of the 5 components comprising the Class
X Certificates, representing a "specified portion" (within the meaning of
Treasury Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on
the Class LA-1 Uncertificated Interest.
"A-1 Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest for the related Interest Accrual
Period at the A-1 Component Pass-Through Rate, accrued on the A-1 Notional
Amount outstanding immediately prior to such Distribution Date commencing in the
month of the Closing Date.
"A-1 Component Pass-Through Rate": With respect to any
Distribution Date, the excess, if any, of (i) the Weighted Average Net Mortgage
Rate of all of the Mortgage Loans outstanding as of the first day of the related
Interest Accrual Period over (ii) the Class A-1 Pass-Through Rate.
"A-1 Notional Amount": With respect to any Distribution Date,
an amount equal to the Lower-Tier Principal Amount of the Class LA-1
Uncertificated Interest as of the preceding Distribution Date (after giving
effect to the distribution of principal and allocation of Collateral Support
Deficit on such Distribution Date), or the Cut-off Date in the case of the first
Distribution Date.
"A-2 Component": One of the 5 components comprising the Class
X Certificates, representing a "specified portion" (within the meaning of
Treasury Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on
the Class LA-2 Uncertificated Interest.
"A-2 Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest for the related Interest Accrual
Period at the A-2 Component Pass-Through Rate, accrued on the A-2 Notional
Amount outstanding immediately prior to such Distribution Date commencing in the
month of the Closing Date.
"A-2 Component Pass-Through Rate": With respect to any
Distribution Date, the excess, if any, of (i) the Weighted Average Net Mortgage
Rate of all of the Mortgage Loans outstanding as of the first day of the related
Interest Accrual Period over (ii) the Class A-2 Pass-Through Rate.
"A-2 Notional Amount": With respect to any Distribution Date,
an amount equal to the Lower-Tier Principal Amount of the Class LA-2
Uncertificated Interest as of the preceding
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Distribution Date (after giving effect to the distribution of principal and
allocation of Collateral Support Deficit on such Distribution Date), or the
Cut-off Date in the case of the first Distribution Date.
"Accrued Certificate Interest": (a) With respect to each
Distribution Date and each Class of Certificates (other than the Class X
Certificates and the Residual Certificates), an amount equal to interest for the
related Interest Accrual Period at the Pass-Through Rate applicable to such
Class of Certificates for such Distribution Date, accrued on the related
Certificate Balance of such Class outstanding immediately prior to such
Distribution Date (i.e., such Certificate Balance is to be used for accrual of
interest during the related Interest Accrual Period notwithstanding the fact
that such Certificate Balance may be different than the actual Certificate
Balance at the start of such Interest Accrual Period) commencing in the month of
the Closing Date; (b) with respect to each Distribution Date and the Class X
Certificates, the Class X Interest Accrual Amount. Accrued Certificate Interest
shall be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as
such in the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt
owed by the related Mortgagor to a party other than the lender under such
Mortgage Loan as of the Closing Date as set forth on Schedule 1 hereto, as
increased or decreased from time to time pursuant to the terms of the related
subordinate loan documents (including any subordination agreement) or, in the
case of the Pari Passu Loan, the Pari Passu Intercreditor Agreement.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(d)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any Mortgage
Loan that is indicated on the Mortgage Loan Schedule as having a Revised Rate,
the date upon which such Mortgage Loan commences accruing interest at such
Revised Rate.
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"Appraisal": An appraisal prepared by an Independent MAI
appraiser with at least five years experience in properties of like kind and in
the same area reasonably acceptable to the Servicer or Special Servicer, as
applicable, prepared in accordance with 12 C.F.R. 225.64, or, in connection with
an Appraisal Reduction, an appraisal meeting the requirements of clause
(b)(i)(A) or (b)(i)(B) in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
equal to the excess, if any, of (a) the Stated Principal Balance of such
Mortgage Loan over (b) the excess of (i) 90% of the Appraised Value of the
related Mortgaged Property as determined (A) by one or more Appraisals with
respect to any Mortgage Loan with an outstanding principal balance equal to or
in excess of $2,000,000 (the costs of which shall be paid by the Servicer or, if
required by Section 3.03(c), the Trustee or the Fiscal Agent, as applicable, as
a Servicing Advance), and (B) by an internal valuation performed by the Special
Servicer with respect to any Mortgage Loan with an outstanding principal balance
less than $2,000,000, over (ii) the sum of, as of the Due Date occurring in the
month of such Distribution Date, (A) to the extent not previously advanced by
the Servicer or the Trustee or the Fiscal Agent, as applicable, all unpaid
interest on such Mortgage Loan at a per annum rate equal to its Mortgage Rate,
(B) all unreimbursed Advances and interest thereon at the Reimbursement Rate in
respect of such Mortgage Loan and (C) all currently due and unpaid real estate
taxes, assessments, insurance premiums and ground rents and all other amounts
due and unpaid with respect to such Mortgage Loan, net of any amounts currently
escrowed for such amounts (which taxes, premiums, ground rents and other amounts
have not been subject to an Advance by the Servicer, the Trustee or the Fiscal
Agent, as applicable); provided, however, that without limiting the Special
Servicer's obligation to order and obtain such Appraisal Reduction, if the
Special Servicer has not obtained the appraisal referred to in clause (b)(i)(A)
or (b)(i)(B) above within 60 days of the Appraisal Reduction Event, the amount
of the Appraisal Reduction shall be deemed to be an amount equal to 25% of the
current Stated Principal Balance of the related Mortgage Loan until such time as
the Appraisal referred to in clause (b)(i)(A) or (b)(i)(B) above is received and
the Appraisal Reduction is calculated. Within 60 days after the Appraisal
Reduction Event, the Special Servicer shall order and receive an Appraisal (the
cost of which shall be paid as a Servicing Advance by the Servicer); provided,
however, that with respect to an Appraisal Reduction Event as set forth in
clause (ii) of the definition of Appraisal Reduction Event, the Special Servicer
shall order and receive such Appraisal within the 120 day period set forth in
such clause (ii), which Appraisal shall be delivered by the Special Servicer to
the Servicer, and the Servicer shall deliver such Appraisal to the Trustee, who
shall deliver such appraisal to the Paying Agent and each Holder of a Class F,
Class G, Class H, Class I, Class J and Class K Certificate within 15 days of
receipt by the Trustee of such Appraisal from the Special Servicer.
Notwithstanding the foregoing, the Directing Certificateholder
shall have the right, at any time within six months of the date of its receipt
of any Appraisal of any Mortgaged Property required to be obtained pursuant to
the immediately preceding paragraph (or, in the case of the Servicing Retained
Mortgage Loan, pursuant to the first paragraph of the definition of "Appraisal
Reduction" set forth in the Servicing Retained Servicing Agreement), to require
that the Special Servicer (or the Retained Servicing Special Servicer under the
Servicing Retained
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Servicing Agreement as the special servicer of the Servicing Retained Mortgage
Loan) obtain a new Appraisal of such Mortgaged Property from an Independent
Appraiser, the cost of which shall be paid by the Controlling Class
Certificateholders without right of reimbursement; provided, however, that the
Special Servicer shall not be required to obtain any such Appraisal unless the
Special Servicer shall have received reasonable assurance of payment of the
costs of such Appraisal and of any expenses related thereto. Upon receipt of
the Appraisal obtained pursuant to the immediately preceding sentence, the
Special Servicer shall redetermine and report to the Servicer, the Trustee and
the Directing Certificateholder the amount of the Appraisal Reduction with
respect to such Mortgage Loan, and such redetermined Appraisal Reduction shall
replace the prior Appraisal Reduction with respect to such Mortgage Loan.
With respect to each Mortgage Loan as to which an Appraisal
Reduction has occurred, the Special Servicer shall, within 30 days of each
annual anniversary of the related Appraisal Reduction Event or sooner if a
material event has occurred that the Special Servicer reasonably believes will
positively or negatively affect the valuation of the related Mortgaged Property,
order a new Appraisal (which may be an update of the preceding Appraisal that is
not a letter update but includes a current assessment of relevant market
conditions), the cost of which shall be paid by the Servicer (or, if required by
Section 3.03(c), the Trustee or the Fiscal Agent, as applicable) as a Servicing
Advance. Based upon such Appraisal or update, the Special Servicer shall
redetermine and report to the Servicer and the Trustee the amount of the
Appraisal Reduction with respect to such Mortgage Loan and such redetermined
Appraisal Reduction shall replace the prior Appraisal Reduction with respect to
such Mortgage Loan.
With respect to each Mortgage Loan as to which an Appraisal
Reduction has occurred and which has become a Corrected Mortgage Loan and has
remained current for twelve consecutive Monthly Payments (for such purposes
taking into account any amendment or modification of such Mortgage Loan), and
with respect to which no other Appraisal Reduction Event has occurred and is
continuing, the Special Servicer may within 30 days of the date of such twelfth
Monthly Payment, order a new Appraisal (which may be an update of the preceding
Appraisal that is not a letter update but includes a current assessment of
relevant market conditions), the cost of which shall be paid by the Servicer
(or, if required by Section 3.03(c), the Trustee or the Fiscal Agent, as
applicable) as a Servicing Advance. Based upon such Appraisal or update, the
Special Servicer shall redetermine and report to the Paying Agent and the
Trustee the amount of the Appraisal Reduction with respect to such Mortgage
Loan. Notwithstanding the foregoing, the Special Servicer will not be required
to obtain an Appraisal with respect to a Mortgage Loan which is the subject of
an Appraisal Reduction Event to the extent that the Special Servicer has
obtained an Appraisal with respect to the related Mortgaged Property within the
12-month period immediately prior to the occurrence of such Appraisal Reduction
Event and there has been no material change to the Mortgaged Property that would
affect the validity of such Appraisal. Instead, the Special Servicer may use
such prior Appraisal in calculating any Appraisal Reduction with respect to such
Mortgage Loan.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan or the related REO Property will
be reduced to zero as of
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the date such Mortgage Loan is paid in full, liquidated, repurchased or
otherwise removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution
Date, an amount equal to the product of (a) one twelfth of the Pass-Through Rate
for each Class of Certificates to which an Appraisal Reduction is allocated and
(b) the sum of all Appraisal Reductions with respect to such Distribution Date
or (ii) (when used in order to determine the Appraisal Reduction Amount on a
Mortgage Loan-by-Mortgage Loan basis) with respect to each Mortgage Loan for
such Distribution Date, an amount equal to the product of (a) one twelfth of the
Pass-Through Rate for each Class of Certificates to which an Appraisal Reduction
is allocated, and (b) the Appraisal Reduction with respect to such Mortgage Loan
with respect to such Distribution Date
"Appraisal Reduction Event": With respect to any Mortgage
Loan, the earliest of (i) the third anniversary of the date on which an
extension of the Maturity Date of such Mortgage Loan becomes effective as a
result of a modification of such Mortgage Loan by the Special Servicer pursuant
to the terms hereof, which extension does not change the amount of Monthly
Payments on the Mortgage Loan, (ii) 120 days after an uncured delinquency
(without regard to the application of any grace period) occurs in respect of
such Mortgage Loan, (iii) 20 days after the Maturity Date of any Balloon Loan if
the related Balloon Payment was not made on such date; (iv) the date on which a
reduction in the amount of Monthly Payments on such Mortgage Loan, or a change
in any other material economic term of such Mortgage Loan (other than an
extension of the Maturity Date), becomes effective as a result of a modification
of such Mortgage Loan by the Special Servicer, (v) the date on which a receiver
has been appointed, (vi) the date on which a Mortgagor declares bankruptcy and
(vii) immediately after a Mortgage Loan becomes an REO Loan; provided, however,
that an Appraisal Reduction Event shall not occur at any time when the aggregate
Certificate Balances of all Classes of Certificates (other than the Class A
Certificates) has been reduced to zero. The Special Servicer shall notify the
Servicer promptly upon the occurrence of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent Appraiser selected by the
Servicer or Special Servicer, as applicable. Notwithstanding the foregoing, with
respect to the Mortgaged Property securing each Related Trust Fund Mortgage Loan
and the related Pari Passu Loan, for purposes of determining the portion of (a)
P&I Advances to made in respect thereof, or (b) the proceeds of the repurchase
or liquidation thereof, that are allocable and payable to the Trust Fund, the
Appraised Value of such Mortgaged Property will be determined as described in
the preceding sentence and then multiplied by a fraction, the numerator of which
is equal to the principal amount of the Related Trust Fund Mortgage Loan and the
denominator of which is equal to the sum of the principal amounts of such
Related Trust Fund Mortgage Loan and the related Pari Passu Loan.
"ARD Loan": Any Mortgage Loan that, by its original terms or
by virtue of any modification entered into as of the Closing Date, provides for
the automatic imposition of rapid amortization and negative amortization
features and the imposition of a lock-box arrangement
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with respect to rent collections if the Mortgage Loan is not prepaid in full on
a specified date (the "Anticipated Repayment Date").
"Asset Status Report": As defined in Section 3.21(e).
"Assignment of Leases": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar instrument
executed by the Mortgagor, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with
respect to any Mortgage Loan that is delinquent in respect of its Balloon
Payment (including any REO Loan as to which the Balloon Payment would have been
past due), an amount equal to the sum of (a) the principal portion of the
Monthly Payment that would have been due on such Mortgage Loan on the related
Due Date based on the constant payment required by the related Mortgage Note or
the original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any modification of such Mortgage Loan, and
(b) interest on the Stated Principal Balance of such Mortgage Loan at the
applicable Mortgage Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": Any agent of the Trustee appointed to
act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Trust Fund on
deposit in the Certificate Account and the Lower-Tier Distribution Account
(exclusive of any investment income contained therein) as of the close of
business on the Business Day preceding the related Servicer Remittance Date,
exclusive of (without duplication):
(i) all Monthly Payments paid by the Mortgagors that
are due on a Due Date following the end of the related Due
Period;
(ii) all Principal Prepayments (together with any
related payments of interest allocable to the period following
the Due Date for the related Mortgage Loan during the related
Due Period), Balloon Payments, Liquidation Proceeds or
Insurance and Condemnation Proceeds received after the end of
the related Due Period;
(iii) all amounts payable or reimbursable to any
Person from the Certificate Account pursuant to clauses (ii) -
(xvi), inclusive, of Section 3.05(a);
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(iv) all amounts payable or reimbursable to any
Person from the Lower-Tier Distribution Account pursuant to
clauses (ii) - (v), inclusive, of Section 3.05(b);
(v) all Yield Maintenance Charges;
(vi) all Excess Interest;
(vii) all amounts deposited in the Certificate
Account or the Lower-Tier Distribution Account, as the case
may be, in error;
(viii) with respect to the Interest Reserve Loans and
(a) any Distribution Date relating to each Interest Accrual
Period ending in (1) each January or (2) any December in a
year immediately preceding a year which is not a leap year,
and (b) the first Distribution Date, an amount equal to one
day of interest on the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the month preceding the
month in which such Distribution Date occurs at the related
Mortgage Rate to the extent such amounts are to be deposited
in the Interest Reserve Account and held for future
distribution pursuant to Section 3.25; and
(ix) all amounts received with respect to a Pari
Passu Loan that are required to be paid to the lender
thereunder pursuant to the terms of such Pari Passu Loan, the
related Pari Passu Intercreditor Agreement and Section 3.02(d)
of this Agreement (which amounts will be deposited into the
Pari Passu Account and withdrawn from such account pursuant to
Section 3.02(d)).
(b) if and to the extent not already included in clause (a)
hereof, the aggregate amount transferred from the REO Account to the Certificate
Account for such Distribution Date pursuant to Section 3.16(c), less all amounts
payable or reimbursable to any Person from the Certificate Account pursuant to
clauses (ii) - (xvi), inclusive, of Section 3.05(a);
(c) the aggregate amount of any P&I Advances made by the
Servicer, the Trustee or the Fiscal Agent, as applicable, for such Distribution
Date pursuant to Section 4.03 or 7.05; and
(d) for the Distribution Date occurring in each March, the
Withheld Amounts remitted to the Lower-Tier Distribution Account pursuant to
Section 3.25(b).
Notwithstanding the investment of funds held in the Certificate
Account or the Lower-Tier Distribution Account pursuant to Section 3.06, for
purposes of calculating the Available Distribution Amount, the amounts so
invested shall be deemed to remain on deposit in such account.
"B Component": One of the 5 components comprising the Class X
Certificates, representing a "specified portion" (within the meaning of Treasury
Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on the Class
LB Uncertificated Interest.
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"B Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest for the related Interest Accrual
Period at the B Component Pass-Through Rate, accrued on the B Notional Amount
outstanding immediately prior to such Distribution Date commencing in the month
of the Closing Date.
"B Component Pass-Through Rate": With respect to any
Distribution Date, the excess, if any, of (i) the Weighted Average Net Mortgage
Rate of all of the Mortgage Loans outstanding as of the first day of the related
Interest Accrual Period over (ii) the Class B Pass-Through Rate.
"B Notional Amount": With respect to any Distribution Date, an
amount equal to the Lower-Tier Principal Amount of the Class LB Uncertificated
Interest as of the preceding Distribution Date (after giving effect to the
distribution of principal and allocation of Collateral Support Deficit losses on
such Distribution Date), or the Cut-off Date in the case of the first
Distribution Date.
"Balloon Mortgage Loan": Any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date provides for an amortization schedule extending beyond its Maturity Date,
other than any Mortgage Loan identified on the Mortgage Loan Schedule as having
interest calculated on the basis of the actual number of days in the periods
between due dates and a year assumed to consist of 360 days and being fully
amortizing.
"Balloon Payment": With respect to any Balloon Mortgage Loan
as of any date of determination, the Monthly Payment payable on the Maturity
Date of such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal
Prepayment on any Mortgage Loan and with respect to any of the Class A, Class B,
Class C, Class D and Class E Certificates, a fraction (A) whose numerator is the
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 or Discount Rate, as the case may be, is greater than the Mortgage
Rate on the related Mortgage Loan, then the Base Interest Fraction shall equal
zero.
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
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"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, Chicago, Illinois (or
such other city and state in which the Corporate Trust Office of the Trustee is
located) or Dallas, Texas (or such other city and state in which the principal
place of business of the Servicer or the Special Servicer is located) are
authorized or obligated by law or executive order to remain closed.
"C-E Component": One of the 5 components comprising the Class
X Certificates, representing a "specified portion" (within the meaning of
Treasury Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on
the Class LC Uncertificated Interest, the Class LD Uncertificated Interest and
the Class LE Uncertificated Interest.
"C-E Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest for the related Interest Accrual
Period at the C-E Component Pass-Through Rate, accrued on the C-E Notional
Amount outstanding immediately prior to such Distribution Date commencing in the
month of the Closing Date.
"C-E Component Pass-Through Rate": With respect to any
Distribution Date, the excess, if any, of (i) the Weighted Average Net Mortgage
Rate of all of the Mortgage Loans outstanding as of the first day of the related
Interest Accrual Period over (ii) the weighted average of (x) the Class C
Pass-Through Rate, (y) the Class D Pass-Through Rate and (z) the Class E
Pass-Through Rate, weighted on the basis of the respective Certificate Balances
of such Classes immediately prior to such Distribution Date.
"C-E Notional Amount": With respect to any Distribution Date,
an amount equal to the sum of (a) the Lower-Tier Principal Amount of the Class
LC Uncertificated Interest, (b) the Lower-Tier Principal Amount of the Class LD
Uncertificated Interest and (c) the Lower-Tier Principal Amount of the Class LE
Uncertificated Interest, in each case as of the preceding Distribution Date
(after giving effect to the distribution of principal and allocation of
Collateral Support Deficit losses on such Distribution Date), or the Cut-off
Date in the case of the first Distribution Date.
"CERCLA": The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": The custodial account or accounts
created and maintained by the Servicer pursuant to Section 3.04(a) in the name
of the Trustee on behalf of the Certificateholders, into which the amounts set
forth in Section 3.04(a) shall be deposited directly. Any such account or
accounts shall be an Eligible Account.
"Certificate Balance": With respect to any Class of
Certificates (other than the Residual Certificates and the Class X
Certificates), (i) on or prior to the first Distribution Date, an amount equal
to the Original Certificate Balance of such Class as specified in the
Preliminary
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Statement hereto, and (ii) as of any date of determination after the
first Distribution Date, the Certificate Balance of such Class on the
Distribution Date immediately prior to such date of determination (determined as
adjusted pursuant to Section 1.02(iv)).
"Certificate Deferred Interest": For any Distribution Date
with respect to any Class of Certificates, the amount of Mortgage Deferred
Interest allocated to such Class pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to 8 places, the numerator of which is the then related
Certificate Balance, and the denominator of which is the related Original
Certificate Balance.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Servicer, the
Special Servicer, the Depositor or any Affiliate of either shall be deemed not
to be outstanding, and the Voting Rights to which it is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent, approval or waiver has been
obtained, if such consent, approval or waiver sought from such party would in
any way increase its compensation or limit its obligations as Servicer, Special
Servicer or Depositor, as applicable, hereunder; further provided, however, that
so long as there is no Event of Default with respect to the Servicer or the
Special Servicer, the Servicer, Special Servicer and any Affiliates thereof
shall be entitled to exercise such Voting Rights with respect to any issue which
could reasonably be believed to adversely affect such party's compensation or
increase its obligations or liabilities hereunder; and further provided,
however, that such restrictions will not apply to the exercise of the Special
Servicer's rights (if applicable) as a member of the Controlling Class or to the
exercise of the Controlling Class Certificateholders or the Directing
Certificateholder of their rights even if such Certificateholders are Affiliates
of the Servicer or Special Servicer. The Trustee shall be entitled to request
and rely upon a certificate of the Servicer, the Special Servicer or the
Depositor in determining whether a Certificate is registered in the name of an
Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Register" and "Certificate Registrar": The
register maintained and registrar appointed pursuant to Section 5.02.
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"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the Certificates or Uncertificated Lower-Tier
Interests bearing the same alphabetical (and, if applicable, numerical) Class
designation.
"Class A Certificate": Any Class A-1 or Class A-2 Certificate.
"Class A-1 Certificate": A Certificate designated as "Class
A-1" on the face thereof, in the form of Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": With respect to any
Distribution Date, a rate per annum equal the lesser of (a) 5.91% and (b) the
Weighted Average Net Mortgage Rate; provided, however, that for purposes of
defining the Weighted Average Net Mortgage Rate in the preceding clause (b), the
Net Mortgage Rates of the Mortgage Loans shall be determined without taking into
account any reductions thereto resulting from modifications of the Mortgage
Loans or otherwise following the Cut-off Date.
"Class A-2 Certificate": A Certificate designated as "Class
A-2" on the face thereof, in the form of Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": With respect to any
Distribution Date, a rate per annum equal to the lesser of (a) 6.02% and (b) the
Weighted Average Net Mortgage Rate; provided, however, that for purposes of
defining the Weighted Average Net Mortgage Rate in the preceding clause (b), the
Net Mortgage Rates of the Mortgage Loans shall be determined without taking into
account any reductions thereto resulting from modifications of the Mortgage
Loans or otherwise following the Cut-off Date.
"Class B Certificate": A Certificate designated as "Class B"
on the face thereof, in the form of Exhibit A-3 hereto.
"Class B Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (a) 6.20% and (b) the Weighted
Average Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net Mortgage
Rates of the Mortgage Loans shall be determined without taking into account any
reductions thereto resulting from modifications of the Mortgage Loans or
otherwise following the Cut-off Date.
"Class C Certificate": A Certificate designated as "Class C"
on the face thereof, in the form of Exhibit A-4 hereto.
"Class C Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (a) 6.53% and (b) the Weighted
Average Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net Mortgage
Rates of the Mortgage Loans shall be determined without taking into account any
reductions thereto resulting from modifications of the Mortgage Loans or
otherwise following the Cut-off Date.
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"Class D Certificate": A Certificate designated as "Class D"
on the face thereof, in the form of Exhibit A-5 hereto.
"Class D Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (a) 6.53% and (b) the Weighted
Average Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net Mortgage
Rates of the Mortgage Loans shall be determined without taking into account any
reductions thereto resulting from modifications of the Mortgage Loans or
otherwise following the Cut-off Date.
"Class E Certificate": A Certificate designated as "Class E"
on the face thereof, in the form of Exhibit A-6 hereto.
"Class E Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (a) 6.53% and (b) the Weighted
Average Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net Mortgage
Rates of the Mortgage Loans shall be determined without taking into account any
reductions thereto resulting from modifications of the Mortgage Loans or
otherwise following the Cut-off Date.
"Class F Certificate": A Certificate designated as "Class F"
on the face thereof, in the form of Exhibit A-7 hereto.
"Class F Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (a) 5.64% and (b) the Weighted
Average Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net Mortgage
Rates of the Mortgage Loans shall be determined without taking into account any
reductions thereto resulting from modifications of the Mortgage Loans or
otherwise following the Cut-off Date.
"Class G Certificate": A Certificate designated as "Class G"
on the face thereof, in the form of Exhibit A-8 hereto.
"Class G Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (a) 5.64% and (b) the Weighted
Average Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net Mortgage
Rates of the Mortgage Loans shall be determined without taking into account any
reductions thereto resulting from modifications of the Mortgage Loans or
otherwise following the Cut-off Date.
"Class H Certificate": A Certificate designated as "Class H"
on the face thereof, in the form of Exhibit A-9 hereto.
"Class H Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (a) 5.64% and (b) the Weighted
Average Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in
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the preceding clause (b), the Net Mortgage Rates of the Mortgage Loans shall be
determined without taking into account any reductions thereto resulting from
modifications of the Mortgage Loans or otherwise following the Cut-off Date.
"Class I Certificate": A Certificate designated as "Class I"
on the face thereof, in the form of Exhibit A-10 hereto.
"Class I Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (a) 5.64% and (b) the Weighted
Average Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net Mortgage
Rates of the Mortgage Loans shall be determined without taking into account any
reductions thereto resulting from modifications of the Mortgage Loans or
otherwise following the Cut-off Date.
"Class J Certificate": A Certificate designated as "Class J"
on the face thereof, in the form of Exhibit A-11 hereto.
"Class J Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (a) 5.64% and (b) the Weighted
Average Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net Mortgage
Rates of the Mortgage Loans shall be determined without taking into account any
reductions thereto resulting from modifications of the Mortgage Loans or
otherwise following the Cut-off Date.
"Class K Certificate": A Certificate designated as "Class K"
on the face thereof, in the form of Exhibit A-12 hereto.
"Class K Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (a) 5.64% and (b) the Weighted
Average Net Mortgage Rate; provided, however, that for purposes of defining the
Weighted Average Net Mortgage Rate in the preceding clause (b), the Net Mortgage
Rates of the Mortgage Loans shall be determined without taking into account any
reductions thereto resulting from modifications of the Mortgage Loans or
otherwise following the Cut-off Date.
"Class L Certificate": A Certificate designated as "Class L"
on the face thereof in the form of Exhibit A-B hereto. The Class L Certificates
do not represent interests in a REMIC.
"Class LA-1 Interest Fraction": With respect to any
Distribution Date, a fraction, the numerator of which is the A-1 Component
Interest Accrual Amount and the denominator of which is the sum of the A-1
Component Interest Accrual Amount, the A-2 Component Interest Accrual Amount,
the B Component Interest Accrual Amount, the C-E Component Interest Accrual
Amount and the F-K Component Interest Accrual Amount.
"Class LA-1 Uncertificated Interest": A regular interest in
the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
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"Class LA-2 Interest Fraction": With respect to any
Distribution Date, a fraction, the numerator of which is the A-2 Component
Interest Accrual Amount and the denominator of which is the sum of the A-1
Component Interest Accrual Amount, the A-2 Component Interest Accrual Amount,
the B Component Interest Accrual Amount, the C-E Component Interest Accrual
Amount and the F-K Component Interest Accrual Amount.
"Class LA-2 Uncertificated Interest": A regular interest in
the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LB Interest Fraction": With respect to any Distribution
Date, a fraction, the numerator of which is the B Component Interest Accrual
Amount and the denominator of which is the sum of the A-1 Component Interest
Accrual Amount, the A-2 Component Interest Accrual Amount, the B Component
Interest Accrual Amount, the C-E Component Interest Accrual Amount and the F-K
Component Interest Accrual Amount.
"Class LB Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LC Interest Fraction": With respect to any Distribution
Date, a fraction that is equal to the product of (a) a fraction, the numerator
of which is the C-E Component Interest Accrual Amount and the denominator of
which is the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount of
the Class LC Uncertificated Interest and the denominator of which is the C-E
Notional Amount.
"Class LC Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LD Interest Fraction": With respect to any Distribution
Date, a fraction that is equal to the product of (a) a fraction, the numerator
of which is the C-E Component Interest Accrual Amount and the denominator of
which is the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount of
the Class LD Uncertificated Interest and the denominator of which is the C-E
Notional Amount.
"Class LD Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
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<PAGE>
"Class LE Interest Fraction": With respect to any Distribution
Date, a fraction that is equal to the product of (a) a fraction, the numerator
of which is the C-E Component Interest Accrual Amount and the denominator of
which is the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount of
the Class LE Uncertificated Interest and the denominator of which is the C-E
Notional Amount.
"Class LE Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LF Interest Fraction": With respect to any Distribution
Date, a fraction that is equal to the product of (a) a fraction, the numerator
of which is the F-K Component Interest Accrual Amount and the denominator of
which is the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount of
the Class LF Uncertificated Interest and the denominator of which is the F-K
Notional Amount.
"Class LF Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LG Interest Fraction": With respect to any Distribution
Date, a fraction that is equal to the product of (a) a fraction, the numerator
of which is the F-K Component Interest Accrual Amount and the denominator of
which is the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount of
the Class LG Uncertificated Interest and the denominator of which is the F-K
Notional Amount.
"Class LG Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LH Interest Fraction": With respect to any Distribution
Date, a fraction that is equal to the product of (a) a fraction, the numerator
of which is the F-K Component Interest Accrual Amount and the denominator of
which is the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal
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Amount of the Class LH Uncertificated Interest and the denominator of which is
the F-K Notional Amount.
"Class LH Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LI Interest Fraction": With respect to any Distribution
Date, a fraction that is equal to the product of (a) a fraction, the numerator
of which is the F-K Component Interest Accrual Amount and the denominator of
which is the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount of
the Class LI Uncertificated Interest and the denominator of which is the F-K
Notional Amount.
"Class LI Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Statement hereto.
"Class LJ Interest Fraction": With respect to any Distribution
Date, a fraction that is equal to the product of (a) a fraction, the numerator
of which is the F-K Component Interest Accrual Amount and the denominator of
which is the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount of
the Class LJ Uncertificated Interest and the denominator of which is the F-K
Notional Amount.
"Class LJ Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class LK Interest Fraction": With respect to any Distribution
Date, a fraction that is equal to the product of (a) a fraction, the numerator
of which is the F-K Component Interest Accrual Amount and the denominator of
which is the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C-E
Component Interest Accrual Amount and the F-K Component Interest Accrual Amount
and (b) a fraction, the numerator of which is the Lower-Tier Principal Amount of
the Class LK Uncertificated Interest and the denominator of which is the F-K
Notional Amount.
"Class LK Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
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"Class LR Certificate": A Certificate designated as "Class LR"
on the face thereof, in the form of Exhibit A-14 hereto.
"Class R Certificate": A Certificate designated as "Class R"
on the face thereof, in the form of Exhibit A-13 hereto.
"Class Unpaid Interest Shortfall": As to any Distribution Date
and any Class of Regular Certificates, the excess, if any, of (a) the sum of (i)
the Distributable Certificate Interest in respect of such Class for the
immediately preceding Distribution Date and (ii) any outstanding Class Unpaid
Interest Shortfall payable to such Class on such preceding Distribution Date
over (b) the aggregate amount in respect of interest actually distributed to
such Class on such immediately preceding Distribution Date. The Class Unpaid
Interest Shortfall with respect to any Class of Certificates as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificate": A Certificate designated as "Class X"
on the face thereof, in the form of Exhibit A-12 hereto.
"Class X Interest Accrual Amount": With respect to any
Distribution Date, the sum of the A-1 Component Interest Accrual Amount, the A-2
Component Interest Accrual Amount, the B Component Interest Accrual Amount, the
C-E Component Interest Accrual Amount and the F-K Component Interest Accrual
Amount.
"Closing Date": February 10, 1999.
"Code": The Internal Revenue Code of 1986, as amended from
time to time, and applicable final or temporary regulations of the U.S.
Department of the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Collateral Tabulation Report": As defined in
Section 4.02(a).
"Commission": The Securities and Exchange Commission.
"Component": The A-1 Component, the A-2 Component, the B
Component, the C-E Component or the F-K Component.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates then outstanding that has a then
aggregate Certificate Balance at least equal to the lesser of (a) 1% of the
outstanding aggregate principal balance of the Mortgage Loans as of the Closing
Date, (b) 50% of the Original Certificate Balance of such Class in the case of
the Class A, Class B, Class C, Class D and Class E Certificates and (c) 25% of
the Original Certificate Balance in the case of any other Class of Regular
Certificates. As of the Closing Date, the Controlling Class will be the Class K
Certificates. For purposes of determining identity of the Controlling Class, the
Certificate Balance of each Class shall be
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deemed to be reduced by the amount allocated to such Class of any Appraisal
Reductions relating to Mortgage Loans as to which Liquidation Proceeds or other
final payment has not yet been received.
"Controlling Class Certificateholders": Each Holder (or
Certificate Owner, if applicable) of a Certificate of the Controlling Class as
certified to the Trustee from time to time by such Holder (or Certificate
Owner).
"Corporate Trust Office": The principal corporate trust office
of the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 135 South LaSalle Street, Suite 1625,
Chicago, Illinois 60674-4107, Attention: Asset-Backed Securities Trust Services
Group - Bear Stearns Commercial Mortgage Securities Inc. Series 1999-C1,
telecopy number: (312) 904-2084.
"Corrected Mortgage Loan": Any Specially Serviced Mortgage
Loan that has become current and remained current for three consecutive Monthly
Payments (for such purposes taking into account any modification or amendment of
such Mortgage Loan) and (provided that no additional default is foreseeable in
the reasonable judgment of the Special Servicer) as to which the Special
Servicer has returned servicing of such Mortgage Loan to the Servicer pursuant
to Section 3.21(a).
"Credit File": Any documents, other than documents required to
be part of the related Mortgage File, in the possession of the Servicer and
relating to the origination and servicing of any Mortgage Loan.
"CSSA": The Commercial Real Estate Secondary Market And
Securitization Association.
"CSSA Data Files": With respect to the Mortgage Loans, the
files specified in Exhibits I-9, I-10 and I-11, each in `ASCII comma delineated'
format, as modified from time to time with the consent of the Servicer and the
Trustee, which consent shall not be unreasonably withheld.
"CSSA Standard Information Package": With respect to the
Mortgage Loans, the CSSA Data Files and the CSSA Surveillance Reports, as
modified from time to time with the consent of the Servicer and the Trustee,
which consent shall not be unreasonably withheld.
"CSSA Surveillance Reports": With respect to the Mortgage
Loans, the files specified in Exhibits I-1 through I-8, each in Microsoft
Corporation Excel program format, as modified from time to time with the consent
of the Servicer and Trustee, which consent shall not be unreasonably withheld.
"Custodian": A Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files,
which Person shall not be the
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Depositor, the Mortgage Loan Seller or an Affiliate of either of them. State
Street Bank and Trust Company shall be the initial Custodian pursuant to a
separate agreement with the Trustee.
"Cut-off Date": February 1, 1999.
"Cut-off Date Principal Balance": With respect to any Mortgage
Loan, the outstanding principal balance of such Mortgage Loan as of the Cut-off
Date, after application of all payments of principal due on or before such date,
whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage
Loan for any twelve month period covered by an annual operating statement for
the related Mortgaged Property, the ratio of (i) Net Operating Income produced
by the related Mortgaged Property during such period to (ii) the aggregate
amount of Monthly Payments (other than any Balloon Payment) due under such
Mortgage Loan during such period; provided, however, that with respect to the
Mortgage Loans indicated on Schedule 2, which initially pay interest only, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the amortization schedule
length indicated on Schedule 2); provided, however, that in the case of the
Servicing Retained Mortgage Loan or a Related Trust Fund Mortgage Loan, the
amount in the preceding clause (i) shall be an amount equal to the product of
(A) the amount that would be in such clause (i) without giving effect to this
proviso and (B) a fraction, the numerator of which is equal to the principal
amount of the Servicing Retained Mortgage Loan or such Related Trust Fund
Mortgage Loan, as applicable, and the denominator of which is equal to the sum
of such numerator and (a) the principal amount of the Servicing Retained Paired
Loan in the case of the Servicing Retained Mortgage Loan, or the related Pari
Passu Loan in the case of such Related Trust Fund Mortgage Loan.
"Default Interest": With respect to any defaulted Mortgage
Loan for any related Due Period, all interest accrued in respect of such
Mortgage Loan during such Due Period provided for in the related Mortgage Note
or Mortgage as a result of the related default (exclusive of late payment
charges) that is in excess of interest at the related Mortgage Rate accrued on
the unpaid principal balance of such Mortgage Loan outstanding from time to time
during such Due Period.
"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent
at least sixty days in respect of its Monthly Payments or more than thirty days
delinquent in respect of its Balloon Payment, if any, such delinquency to be
determined in either case without giving effect to any grace period permitted by
the related Mortgage or Mortgage Note and without regard to any acceleration of
payments under the related Mortgage and Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property by a court of competent
jurisdiction, in an amount less than the then
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outstanding principal balance of the Mortgage Loan, which amount results from a
proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.01(a).
"Denomination": As defined in Section 5.01(a).
"Depositor": Bear Stearns Commercial Mortgage Securities Inc.,
a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository, for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(5) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date,
the 5th Business Day preceding such Distribution Date.
"Directing Certificateholder": The Controlling Class
Certificateholder selected by more than 50% of the Controlling Class
Certificateholders, by Certificate Balance, as certified by the Certificate
Registrar from time to time; provided, however, that (i) absent such selection,
(ii) until a Directing Certificateholder is so selected or (iii) upon receipt of
a notice from a majority of the Controlling Class Certificateholders, by
Certificate Balance, that a Directing Certificateholder is no longer designated,
the Controlling Class Certificateholder that owns the largest aggregate
Certificate Balance of the Controlling Class, as certified by the Certificate
Registrar from time to time, will be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof that are not
customarily provided to tenants in connection with the rental of space "for
occupancy only" within the meaning of Treasury Regulations Section
1.512(b)-1(c)(5), the management or operation of such REO Property, the holding
of such REO Property primarily for sale to customers, the use of such REO
Property in a trade or business conducted by the Trust Fund or the performance
of any construction work on such REO Property (other than the completion of a
building or improvement, where more than 10% of the construction of such
building or improvement was completed before default became imminent), other
than through an Independent Contractor; provided, however, that the Trustee (or
the Special Servicer on behalf of the Trustee) shall not be considered to
Directly Operate an REO Property solely because the Trustee (or the Special
Servicer on behalf of the Trustee)
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<PAGE>
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance or makes decisions as to repairs or capital
expenditures with respect to such REO Property or takes other actions consistent
with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Discount Rate": A rate which, when compounded monthly, is
equivalent to the Yield Rate when compounded semi-annually.
"Disqualified Organization": Any of (i) the United States, any
State or political subdivision thereof, any possession of the United States or
any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization or
any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C) of
the Code and (v) any other Person so designated by the Servicer based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause either the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC or any Person having an Ownership
Interest in any Class of Certificates (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the Transfer of an Ownership Interest in a Residual Certificate
to such Person. The terms "United States," "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates, the Accrued
Certificate Interest in respect of such Class of Regular Certificates for such
Distribution Date, reduced (to not less than zero) by an allocation to such
Class of Certificates (other than in the case of the Class X Certificates) of
any Certificate Deferred Interest for such Distribution Date.
"Distribution Accounts": Collectively, the Upper-Tier
Distribution Account and the Lower-Tier Distribution Account.
"Distribution Date": The 14th day of any month, or if such
14th day is not a Business Day, the Business Day immediately following,
commencing in March, 1999.
"Distribution Date Statement": As defined in Section 4.02(a).
"Due Date": With respect to any Distribution Date and/or any
Mortgage Loan (or REO Loan), as the case may be, the 1st day of the month in
which such Distribution Date occurs.
"Due Period": With respect to any Distribution Date and any
Mortgage Loan (or REO Loan), the period commencing on the second day of the
month preceding the month in which such Distribution Date occurs and ending on
the first day of the month in which such Distribution Date occurs.
Notwithstanding the foregoing, in the event that the last day of a Due
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Period is not a Business Day, any payments received with respect to the Mortgage
Loans relating to such Due Period on the Business Day immediately following such
day shall be deemed to have been received during such Due Period and not during
any other Due Period.
"EDGAR": The Electronic Data Gathering and Retrieval System of
the Commission.
"Eligible Account": Either (i) an account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee) the long-term unsecured debt obligations of
which are rated (A) not more than two rating levels below the rating then
assigned to the most highly rated Class of Certificates then outstanding (but in
no event less than "BBB") by S&P if the short-term unsecured debt obligations
thereof are rated at least A-1 by S&P, and, if the short-term debt obligations
thereof have not been rated by S&P, at least "AA" by S&P, and (B) at least (1)
"Aa2" by Moody's if the deposits are to be held in such account for over 180
days, (2) "Aa3" by Moody's if the deposits are to be held in such account for
more than 90 days but not more than 180 days, (3) "A1" by Moody's if the
deposits are to be held in such account for more than 30 days but not more than
90 days and (4) "A2" by Moody's if the deposits are to be held in such account
for 30 days or less, or as has been confirmed in writing by both Rating Agencies
that such account would not cause a qualification, withdrawal or downgrade of
the then current ratings assigned to any of the Certificates that are then
currently being rated by them, if the deposits are to be held in such account 30
days or more or the short-term debt obligations of which have a short-term
rating of not less than "P-1" by Moody's and "A-1" by S&P if the deposits are to
be held in such account for less than 30 days, or such other account or accounts
with respect to which each of the Rating Agencies shall have confirmed in
writing that the then current rating assigned to any of the Certificates that
are currently being rated by such Rating Agency will not be qualified,
downgraded or withdrawn by reason thereof or (ii) a segregated trust account or
accounts maintained with the corporate trust department of a federal or state
chartered depository institution or trust company that, in either case, has a
combined capital and surplus of at least $50,000,000 and has corporate trust
powers, acting in its fiduciary capacity, provided that any state chartered
depository institution or trust company is subject to regulation regarding
fiduciary funds substantially similar to 12 C.F.R. ss. 9.10(b). Eligible
Accounts may bear interest. No Eligible Account shall be evidenced by a
certificate of deposit, passbook or other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional
Buyer that is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as
described in, and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily
Guide or any successor provisions covering the same subject matter, in the case
of Specially Serviced Mortgage Loans as to which the related Mortgaged Property
is a multifamily property or (ii) the American Society for Testing and Materials
in the case of Specially Serviced Mortgage Loans as to which the related
Mortgaged Property is a non-multifamily property.
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"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Prohibited Holder": As defined in Section
5.02(d)(i)(A).
"Escrow Payment": Any payment received by the Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property, including amounts for deposit to
any reserve account.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Act Report": A Current Report on Form 8-K or an
Annual Report on Form 10-K respecting the Trust Fund and/or the Certificates,
and containing as exhibits the monthly Distribution Date Statement and the CSSA
Standard Information Package and in each case under cover of the related form
required by the Exchange Act and such other information that is required or
specifically provided herein to be filed on behalf of the Trust under the
Exchange Act pursuant to Section 4.02.
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan allocable to the Excess Rate, including all
interest accrued thereon. Excess Interest is an asset of the Trust Fund, but not
of a REMIC.
"Excess Rate": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, the excess of
(i) the applicable Revised Rate over (ii) the applicable Mortgage Rate, each as
set forth in the Mortgage Loan Schedule.
"F-K Component": One of the 5 components comprising the Class
X Certificates, representing a "specified portion" (within the meaning of
Treasury Regulations Section 1.860G-(1)(a)(2)(i)(C)) of the interest payments on
the Class LF Uncertificated Interest, the Class LG Uncertificated Interest, the
Class LH Uncertificated Interest, the Class LI Uncertificated Interest, the
Class LJ Uncertificated Interest and the Class LK Uncertificated Interest.
"F-K Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest for the Related Interest Accrual
Period at the F-K Component Pass-Through Rate accrued on the F-K Notional Amount
outstanding immediately prior to such Distribution Date, commencing in the month
of the Closing Date.
"F-K Component Pass-Through Rate": A rate equal to the excess,
if any, of (i) the Weighted Average Net Mortgage Rate with respect to such
Distribution Date of the Mortgage Loans of all of the Mortgage Loans outstanding
as of the first day of the related Interest Accrual Period over (ii) the
weighted average of (u) the Class F Pass-Through Rate, (v)
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the Class G Pass-Through Rate, (w) the Class H Pass-Through Rate, (x) the Class
I Pass-Through Rate, (y) the Class J Pass-Through Rate and (z) the Class K
Pass-Through Rate, weighted on the basis of the respective Certificate Balances
of such Classes immediately prior to such Distribution Date.
"F-K Notional Amount": With respect to any Distribution Date,
an amount equal to the (i) the Lower-Tier Principal Amount of the Class LF
Uncertificated Interest, (ii) the Lower-Tier Principal Amount of the Class LG
Uncertificated Interest, (iii) the Lower-Tier Principal Amount of the Class LH
Uncertificated Interest, (iv) the Lower-Tier Principal Amount of the Class LI
Uncertificated Interest, (v) the Lower-Tier Principal Amount of the Class LJ
Uncertified Interest and (vi) the Lower-Tier Principal Amount of the Class LK
Uncertificated Interest, in each case as of the preceding Distribution Date
(after giving effect to the distribution of principal and allocation of
Collateral Support Deficit on such Distribution Date), or the Cut-off Date in
the case of the first Distribution Date.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan or REO Property (other than
a Mortgage Loan or REO Property, as the case may be, that was purchased by the
Mortgage Loan Seller pursuant to Section 3.3 of the Mortgage Loan Purchase and
Sale Agreement, by the Servicer, the Special Servicer or the Controlling Class
Certificateholder holding the largest Certificate Balance of the Certificates of
the Controlling Class pursuant to Section 3.18(b), or by the Servicer, the
Special Servicer, the Controlling Class Certificateholders or the Holders of the
Class LR Certificates pursuant to Section 9.01) that there has been a recovery
of all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue
and other payments or recoveries that, in the Special Servicer's judgment,
exercised without regard to any obligation of the Special Servicer to make
payments from its own funds pursuant to Section 3.07(b), will ultimately be
recoverable.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands Banking
Corporation and its successors and assigns.
"FNMA": Federal National Mortgage Association or any successor
thereto.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and specifically including, without
limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls, radon gas, petroleum and petroleum products, urea formaldehyde and
any substances classified as being "in inventory," "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Independent": When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, the Servicer,
the Special Servicer, the Directing
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Certificateholder and any and all Affiliates thereof, (ii) does not have any
material direct financial interest in or any material indirect financial
interest in any of the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder or any Affiliate thereof and (iii) is not connected
with the Depositor, the Servicer, the Special Servicer, the Directing
Certificateholder or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor, the Servicer, the Special Servicer, the Directing Certificateholder
or any Affiliate thereof merely because such Person is the beneficial owner of
1% or less of any class of securities issued by the Depositor, the Servicer, the
Special Servicer or any Affiliate thereof, as the case may be.
"Independent Appraiser": An Independent, as that term is
defined herein, MAI.
"Independent Contractor": Either (i) any Person that would be
an "independent contractor" with respect to the Trust within the meaning of
section 856(d)(3) of the Code if the Trust were a real estate investment trust
(except that the ownership test set forth in that Section shall be considered to
be met by any Person that owns, directly or indirectly, 35% or more of any Class
of Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
Servicer or the Trust Fund, delivered to the Trustee and the Servicer), so long
as the Trust does not receive or derive any income from such Person and provided
that the relationship between such Person and the Trust is at arm's length, all
within the meaning of Treasury Regulation Section 1.856-4(b)(5) (except that the
Servicer or the Special Servicer shall not be considered to be an Independent
Contractor under the definition in this clause (i) unless an Opinion of Counsel
has been delivered to the Trustee to that effect) or (ii) any other Person
(including the Servicer and the Special Servicer) upon receipt by the Trustee
and the Servicer of an Opinion of Counsel, which shall be at no expense to the
Trustee, the Servicer or the Trust Fund, to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property.
"Institutional Accredited Investor": As defined in Section
5.02(b).
"Insurance Policy": With respect to any Mortgage Loan, any
fire and hazard insurance policy with extended coverage, title policy or other
insurance policy that is maintained from time to time in respect of such
Mortgage Loan or the related Mortgaged Property.
"Insurance and Condemnation Proceeds": All proceeds paid under
any Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor, in either case, in accordance with the Servicing Standard.
"Interest Accrual Period": With respect to any Class of
Regular Certificates or Uncertificated Lower-Tier Interests and any Distribution
Date, the period beginning on the first
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day of the calendar month preceding the calendar month in which the related
Distribution Date occurs and ending on the last day of the calendar month
preceding the calendar month in which such Distribution Date occurs.
"Interest Distribution Amount": With respect to any Class of
Regular Certificates for any Distribution Date, an amount equal to the sum of
the Distributable Certificate Interest and the Class Unpaid Interest Shortfall
with respect to such Class of Regular Certificates for such Distribution Date.
"Interest Reserve Account": The trust account created and
maintained by the Servicer pursuant to Section 3.25 on behalf of the
Certificateholders, into which the amounts set forth in Section 3.25 shall be
deposited directly, and which must be an Eligible Account.
"Interest Reserve Loans": The Mortgage Loans identified as
such on Schedule 4.
"Interested Person": The Depositor, the Servicer, the Special
Servicer, the Directing Certificateholder, any Independent Contractor engaged by
the Special Servicer, any Holder of a Certificate or any Affiliate of any such
Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section
5.02(b).
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the REMIC Provisions.
"Late Collections": With respect to any Mortgage Loan, all
amounts received thereon during any Due Period, whether as Monthly Payments,
Insurance and Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal or interest due in respect
of such Mortgage Loan (without regard to any acceleration of amounts due
thereunder by reason of default) on a Due Date in a previous Due Period and not
previously recovered. With respect to any REO Loan, all amounts received in
connection with the related REO Property during any Due Period, whether as
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of principal or interest due or
deemed due in respect of such REO Loan or the predecessor Mortgage Loan (without
regard to any acceleration of amounts due under the predecessor Mortgage Loan by
reason of default) on a Due Date in a previous Due Period and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan; (iii) such
Mortgage Loan is repurchased by the Mortgage Loan Seller pursuant to Section 3.3
of the Mortgage Loan Purchase and Sale Agreement; (iv) such Mortgage Loan is
purchased by the Servicer, the Special Servicer or the Controlling Class
Certificateholders pursuant to Section 3.18(b); or (v) such Mortgage Loan is
purchased by the Servicer, the Special Servicer, the Controlling Class
Certificateholders or the Holders of the
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Class LR Certificates pursuant to Section 9.01. With respect to any REO Property
(and the related REO Loan), any of the following events: (i) a Final Recovery
Determination is made with respect to such REO Property or (ii) such REO
Property is purchased by the Controlling Class Certificateholders, the Servicer,
the Special Servicer or the Holders of the Class LR Certificates pursuant to
Section 9.01.
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan (other than the Servicing
Retained Mortgage Loan as to which no such fee shall be payable) as to which the
Special Servicer receives a full or discounted payoff with respect thereto from
the related Mortgagor or any Liquidation Proceeds with respect thereto, equal to
the product of the Liquidation Fee Rate and the proceeds of such full or
discounted payoff or the Liquidation Proceeds (net of the costs and expenses
associated with the related liquidation) related to such liquidated Specially
Serviced Mortgage Loan, as the case may be; provided, however, that no
Liquidation Fee shall be payable with respect to clauses (iii)-(v) of the
definition of Liquidation Proceeds.
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts (other than Insurance and
Condemnation Proceeds and REO Revenues) received or paid by the Servicer in
connection with: (i) the liquidation of a Mortgaged Property or other collateral
constituting security for a Defaulted Mortgage Loan, through trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof
required to be released to the related Mortgagor in accordance with applicable
law and the terms and conditions of the related Mortgage Note and Mortgage; (ii)
the realization upon any deficiency judgment obtained against a Mortgagor; (iii)
the purchase of a Defaulted Mortgage Loan by the Servicer, the Special Servicer
or the Controlling Class Certificateholders pursuant to Section 3.18(b) or any
other sale thereof pursuant to Section 3.18(c); (iv) the repurchase of a
Mortgage Loan by the Mortgage Loan Seller pursuant to Section 3.3 of the
Mortgage Loan Purchase and Sale Agreement; or (v) the purchase of a Mortgage
Loan or REO Property by the Controlling Class Certificateholders, the Special
Servicer or the Holders of the Class LR Certificates pursuant to Section 9.01;
provided that "Liquidation Proceeds" will not include the portion of any such
proceeds allocable to a Pari Passu Mortgage pursuant to the related Pari Passu
Inter-Creditor Agreement or the portion of the Mortgage securing the Servicing
Retained Mortgage Loan that is allocable to the Servicing Retained Paired Loan
pursuant to the Servicing Retained Mortgage Loan Inter-Creditor Agreement.
"Loan Documents": With respect to each Mortgage Loan, the
related Mortgage, Mortgage Note, all other documents in the related Mortgage
File and any related agreements.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as
of any date of determination, the fraction, expressed as a percentage, the
numerator of which is the scheduled principal balance of such Mortgage Loan at
the time of determination (assuming no defaults on or Principal Prepayments of
the Mortgage Loans), and the denominator of which is the Original Value of the
related Mortgaged Property.
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"Lower-Tier Distribution Account": The segregated account or
accounts (or sub-account) created and maintained by the Trustee pursuant to
Section 3.04(c) in trust for the Certificateholders, which shall be entitled
"LaSalle National Bank, as Trustee, in trust for the registered Holders of Bear
Stearns Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through
Certificates, Series 1999-C1, Lower-Tier Distribution Account". Any such account
or accounts (or sub-account) shall be an Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section
4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iv)).
"Lower-Tier REMIC": One of two separate REMICs comprising the
Trust Fund, the assets of which consist of the Mortgage Loans, any REO Property
with respect thereto, such amounts as shall from time to time be held in the
Certificate Account, the REO Account, if any, and the Lower-Tier Distribution
Account, and all other property included in the Trust Fund that is not in the
Upper-Tier REMIC, in each case excluding any Excess Interest paid or payable on
an ARD Loan.
"MAI": Member of the Appraisal Institute.
"Maturity Date": With respect to any Mortgage Loan as of any
date of determination, the date on which the last payment of principal is due
and payable under the related Mortgage Note or Mortgage Notes, after taking into
account all Principal Prepayments received prior to such date of determination,
but without giving effect to (i) any acceleration of the principal of such
Mortgage Loan by reason of default thereunder, (ii) any grace period permitted
by the related Mortgage Note or Mortgage Notes, or (iii) any modification,
waiver or amendment of such Mortgage Loan granted or agreed to by the Servicer
or the Special Servicer pursuant to Section 3.20 occurring prior to such date of
determination.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled monthly payment of principal and/or interest on such Mortgage Loan,
including any Balloon Payment, but excluding any Excess Interest in the case of
an ARD Loan following its Anticipated Repayment Date, which is payable by a
Mortgagor from time to time under the related Mortgage Note and applicable law,
without regard to any acceleration of principal of such Mortgage Loan by reason
of default thereunder or any modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the Servicer or the Special Servicer pursuant to
Section 3.20.
"Moody's": Moody's Investors Service, Inc. and its successors
and assigns.
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"Mortgage": With respect to any Mortgage Loan, the mortgage,
deed of trust or other instrument securing a Mortgage Note and creating a lien
on the fee or leasehold interest in the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage
Loan as of any Due Date that has been modified to reduce the rate at which
interest is paid currently below the Mortgage Rate, the excess, if any, of (a)
interest accrued on the Stated Principal Balance thereof during the one-month
interest accrual period set forth in the related Mortgage Note at the related
Mortgage Rate over (b) the interest portion of the related Monthly Payment, as
so modified or reduced, or, if applicable, the Assumed Scheduled Payment due on
such Due Date.
"Mortgage File": With respect to any Mortgage Loan, but
subject to Section 2.01, collectively the following documents:
(i) 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
Mortgage Loan 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 the
following form: "Pay to the order of LaSalle National Bank, as
trustee for the registered Holders of Bear Stearns Commercial
Mortgage Securities Inc. Commercial Mortgage Pass-Through
Certificates, Series 1999-C1, without recourse, representation
or warranty, express or implied";
(ii) the original Mortgage (or a certified copy
thereof from the applicable recording office) and originals
(or certified copies from the applicable recording office) of
any intervening assignments thereof showing a complete chain
of assignment from the originator of the Mortgage Loan to the
Mortgage Loan Seller, in each case with evidence of recording
indicated thereon;
(iii) an original assignment of the Mortgage, in
recordable form, to "LaSalle National Bank, as trustee for the
registered Holders of Bear Stearns Commercial Mortgage
Securities Inc. Commercial Mortgage Pass-Through Certificates,
Series 1999-C1"; provided that, with respect to the Servicing
Retained Mortgage Loan, a copy of the equivalent delivered to
the Trustee under the Servicing Retained Servicing Agreement
shall be delivered hereunder;
(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 Mortgage Loan Seller,
in each case with evidence of recording thereon;
(v) an original assignment of any related Assignment
of Leases (if such item is a document separate from the
Mortgage), in recordable form,
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executed by the Mortgage Loan Seller in favor of the Trustee
(in such capacity); provided that, with respect to the
Servicing Retained Mortgage Loan, a copy of the equivalent
delivered to the Trustee under the Servicing Retained
Servicing Agreement shall be delivered hereunder;
(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 Mortgage Loan
Seller, in each case with evidence of recording thereon;
(vii) an original assignment of any related Security
Agreement (if such item is a document separate from the
Mortgage), in recordable form, executed by the Mortgage Loan
Seller in favor of the Trustee (in such capacity); provided
that, with respect to the Servicing retained Mortgage Loan, a
copy of the equivalent delivered to the Trustee under the
Servicing Retained Servicing Agreement shall be delivered
hereunder;
(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 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
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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; with respect to
each Related Trust Fund Mortgage Loan, the related Pari Passu
Intercreditor Agreement, a copy of the note evidencing the
related Pari Passu Loan and a copy of the Pari Passu LC, if
any; and with respect to the Servicing Retained Mortgage Loan,
a copy of the Servicing Retained Servicing Agreement and the
Servicing Retained Mortgage Loan Intercreditor Agreement; and
(xiv) a survey of the related Mortgaged Property; and
(xv) any additional documents required to be added to
the Mortgage File pursuant to this Agreement;
provided, however, that whenever the term "Mortgage File" is used to refer to
documents actually received by the Trustee, or a Custodian appointed thereby,
such term shall not be deemed to include such documents and instruments required
to be included therein unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned to the Trustee pursuant to Section 2.01 and from time to time held in
the Trust Fund; it being understood that the Pari Passu Loan and the Servicing
Retained Paired Mortgage Loan are not Mortgage Loans.
"Mortgage Loan Purchase and Sale Agreement": The agreement
between the Depositor and the Mortgage Loan Seller, relating to the transfer of
all of the Mortgage Loan Seller's right, title and interest in and to the
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of the Trust Fund,
attached hereto as Exhibit B, which list sets forth the following information
with respect to each Mortgage Loan:
(i) the loan I.D. number (as specified in Annex A to
the Prospectus);
(ii) the name of the related Mortgaged Property;
(iii) the street address (including city, state and
zip code) of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off
Date;
(vi) the original principal balance;
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(vii) the Cut-off Date Principal Balance;
(viii) the Maturity Date principal balance based on
information contained in such Mortgage;
(ix) the (a) original term to stated maturity, (b)
remaining term to stated maturity and (c) Maturity Date;
(x) the Anticipated Repayment Date, and the Revised
Rate, if applicable;
(xi) the original amortization term;
(xii) the first Due Date;
(xiii) the amount of the Monthly Payment due on the
first Due Date following the Cut-off Date;
(xiv) the Original Value of the related Mortgaged
Property;
(xv) the Loan-to-Value Ratio at the Cut-off Date;
(xvi) the Underwritten Debt Service Coverage Ratio;
(xvii) the applicable Servicing Fee Rate;
(xviii) whether the Mortgage Loan is an Actual/360
Mortgage Loan;
(xix) whether the Mortgage Loan is a 30/360 Mortgage
Loan;
(xx) the nature of the borrower's interest in the
related Mortgaged Property (i.e. fee, leasehold or both);
(xxi) the lien position of the Mortgage Loan (i.e.
first or second mortgage); and
(xxii) a brief description of provisions governing
prepayment penalties, yield maintenance charges and related
lockout periods.
Such Mortgage Loan Schedule shall also set forth the aggregate
of the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Bear, Stearns Funding, Inc., a
Delaware corporation or its successors in interest.
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"Mortgage Note": The original executed note evidencing all or
a portion of the indebtedness of a Mortgagor under a Mortgage Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or
prior to its Maturity Date, the annualized rate at which interest is scheduled
(in the absence of a default) to accrue on such Mortgage Loan from time to time
in accordance with the related Mortgage Note and applicable law, exclusive of
the Revised Rate and, in the case of the Servicing Retained Mortgage Loan,
exclusive of the Servicing Retained Mortgage Loan Servicing Fee Rate; (ii) any
Mortgage Loan after its Maturity Date, the annualized rate described in clause
(i) above determined without regard to the passage of such Maturity Date;
provided, however, for purposes of the preceding clause (i) and (ii) that if any
Mortgage Loan does not accrue interest on the basis of a 360-day year consisting
of twelve 30-day months, then, solely for purposes of calculating the Class X
Pass-Through Rate and the limit on the Pass-Through Rate of each other Class of
Regular Certificates contained in the proviso to the definition of the
Pass-Through Rate for each Class Regular Certificates (other than the Class X
Certificates), the Mortgage Rate of such Mortgage Loan for any one-month period
preceding a related Due Date will be the annualized rate at which interest would
have to accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Default Interest or Excess Interest) in
respect of such Mortgage Loan during such one-month period at the related
Mortgage Rate; further provided, that, except with respect to the first
Distribution Date occurring in March 1999, with respect to each Interest Reserve
Loan, the Mortgage Rate for the one month period (A) preceding the Due Dates
that occur in January and February in any year which is not a leap year (other
than 1999) or preceding the Due Date that occurs in February in any year which
is a leap year, and (B) preceding the Due Date in March in any year (other than
1999), will be the per annum rate stated in the related Mortgage Note or
Mortgage Notes; and provided further, that with respect to the Mortgage Rate for
each Interest Reserve Loan for the month of February 1999, because no Withheld
Amount will be set aside for February 1999, the Mortgage Rate for such month
will be deemed to be the annual rate calculated on the basis of a 360 day year
comprised of twelve 30 day months necessary to produce the amount of interest
that actually did accrue thereon during such month (i.e., 28 days of interest);
and (iii) any REO Loan, the annualized rate described in clause (i) or (ii), as
applicable, above determined as if the predecessor Mortgage Loan had remained
outstanding.
"Mortgaged Property": The real property subject to the lien of
a Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including without limitation, any Person that has acquired the related Mortgaged
Property and assumed the obligations of the original obligor under the Mortgage
Note.
"Net Investment Earnings": With respect to either the
Certificate Account, the Interest Reserve Account or any REO Account for any
period from any Distribution Date to the immediately succeeding Servicer
Remittance Date, the amount, if any, by which the aggregate of all interest and
other income realized during such period on funds relating to the Trust Fund
held
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in such account, exceeds the aggregate of all losses, if any, incurred during
such period in connection with the investment of such funds in accordance with
Section 3.06.
"Net Investment Loss": With respect to either the Certificate
Account, the Interest Reserve Account or any REO Account for any period from any
Distribution Date to the immediately succeeding Servicer Remittance Date, the
amount by which the aggregate of all losses, if any, incurred during such period
in connection with the investment of funds relating to the Trust Fund held in
such account in accordance with Section 3.06, exceeds the aggregate of all
interest and other income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate minus the Servicing Fee Rate.
"Net Operating Income": With respect to any Mortgaged
Property, for any Mortgagor's fiscal year end, the total operating revenues
derived from such Mortgaged Property during such period, minus the total
operating expenses incurred in respect of such Mortgaged Property during such
period, other than (i) non-cash items such as depreciation, (ii) amortization,
(iii) actual capital expenditures and (iv) debt service on the related Mortgage
Loan.
"New Lease": Any lease of REO Property entered into at the
direction of the Special Servicer on behalf of the Trust, including any lease
renewed, modified or extended on behalf of the Trust, if the Trust has the right
to renegotiate the terms of such lease.
"Non-Public Certificate": Unless and until registered under
the Securities Act, any Class F, Class G, Class H, Class I, Class J, Class K,
Class L, Class R or Class LR Certificate.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance,
Nonrecoverable Servicing Advance, Servicing Retained Nonrecoverable P&I Advance
or Servicing Retained Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
judgment of the Servicer, the Trustee or the Fiscal Agent, as applicable, will
not be ultimately recoverable, together with any accrued and unpaid interest
thereon, from Late Collections or any other recovery on or in respect of such
Mortgage Loan or REO Loan. The determination by the Servicer, the Trustee or the
Fiscal Agent, as applicable, that it has made a Nonrecoverable P&I Advance or
that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I
Advance, shall be evidenced by an Officer's Certificate delivered to the Trustee
and the Depositor, in the case of the Servicer or the Fiscal Agent, and to the
Depositor, in the case of the Trustee. The Officer's Certificate shall set forth
such determination of nonrecoverability and the considerations of the Servicer,
the Trustee or Fiscal Agent, as applicable, forming the basis of such
determination (which shall include but shall not be limited to information, to
the extent available, such as related income and expense statements, rent rolls,
occupancy status and property inspections, and shall include an Appraisal of the
related Mortgage Loan or Mortgaged Property, the cost of which Appraisal shall
be advanced by the Servicer or the Trustee or Fiscal Agent, as applicable,
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as a Servicing Advance). The Trustee shall be entitled to conclusively rely on
the Servicer's determination that a P&I Advance is nonrecoverable and the Fiscal
Agent shall be entitled to conclusively rely on the Servicer's and/or Trustee's
determination that a P&I Advance is nonrecoverable.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property which, in the judgment of the Servicer, the Trustee or the Fiscal
Agent, as the case may be, will not be ultimately recoverable, together with any
accrued and unpaid interest thereon, from Late Collections or any other recovery
on or in respect of such Mortgage Loan or REO Property. The determination by the
Servicer, the Trustee or the Fiscal Agent, as the case may be, that it has made
a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by
an Officer's Certificate delivered to the Trustee, the Depositor and the Fiscal
Agent, in the case of the Servicer, and to the Depositor and the Fiscal Agent,
in the case of the Trustee. The Officer's Certificate shall set forth such
determination of nonrecoverability and the considerations of the Servicer, the
Trustee or the Fiscal Agent, as applicable, forming the basis of such
determination (which shall include but shall not be limited to information, to
the extent available, such as related income and expense statements, rent rolls,
occupancy status and property inspections, and shall include an Appraisal of the
related Mortgage Loan or Mortgaged Property, the cost of which Appraisal shall
be advanced by the Servicer or the Trustee or Fiscal Agent, as applicable, as a
Servicing Advance). The Trustee will be entitled to conclusively rely on the
Servicer's determination that a Servicing Advance is nonrecoverable and the
Fiscal Agent shall be entitled to conclusively rely on the Servicer's and/or the
Trustee's determination that a Servicing Advance is nonrecoverable.
"Non-U.S. Person": Any person other than a U.S. Person,
unless, with respect to the Transfer of a Residual Certificate, (i) such person
holds such Residual Certificate in connection with the conduct of a trade or
business within the United States and furnishes the Transferor and the
Certificate Registrar with an effective Internal Revenue Service Form 4224 or
(ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes.
"Notional Amount": The A-1 Component Notional Amount, the A-2
Component Notional Amount, the B Component Notional Amount, the C-E Component
Notional Amount or the F-K Notional Amount, as the case may be.
"NRSRO": A nationally recognized statistical rating
organization.
"Offered Certificates": The Class A, Class B, Class C, Class D
Class E and Class X Certificates.
"Officer's Certificate": A certificate signed by a Servicing
Officer of the Servicer or the Special Servicer, as the case may be, or a
Responsible Officer of the Trustee or the Fiscal Agent, as the case may be.
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"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be salaried counsel for or counsel routinely retained by the
Depositor, the Servicer or the Special Servicer, acceptable in form and
delivered to the Trustee, except that any opinion of counsel relating to (a) the
qualification of the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC or the
imposition of a tax thereon, (b) compliance with the REMIC Provisions, (c) the
resignation of the Servicer, the Special Servicer or the Depositor pursuant to
Section 6.04, (d) the determination of who is an Independent Contractor for
purposes of Section 856(d)(3) of the Code, (e) whether REO Property will
constitute "foreclosure property" for purposes of Section 860G(a)(8) of the
Code, (f) whether an extension of a Mortgage Loan would constitute a
"significant modification" within the meaning of Treasury Regulations Section
1.860G-2(b) or (g) whether the liquidation of assets of the Trust constitutes a
"qualified liquidation" for purposes of Section 860F(a)(4) of the Code, must be
an opinion of counsel who is in fact Independent of the Depositor, the Servicer,
the Special Servicer or the Directing Certificateholder, as applicable.
"Original Certificate Balance": With respect to any Class of
Regular Certificates (other than the Class X Certificates), the initial
aggregate principal amount thereof as of the Closing Date, in each case as
specified in the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any
Class of Uncertificated Lower-Tier Interest, the initial principal amount
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"Original Notional Amount": With respect to the A-1 Component,
the A-2 Component, the B Component, the C-E Component or the F-K Component, the
respective initial aggregate Notional Amount thereof as of the Closing Date, in
each case as specified in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property
based upon the Appraisal conducted in connection with the origination of the
related Mortgage Loan.
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan, Pari Passu Loan or REO
Loan, any advance made by the Servicer, the Trustee or the Fiscal Agent, as
applicable, pursuant to Section 4.03 or Section 7.05.
"P&I Advance Determination Date": With respect to any
Distribution Date, the Second Business Day prior to such Distribution Date.
"Pari Passu Account": The custodial account or accounts
created and maintained by the Servicer pursuant to Section 3.04(a) in the name
of the Trustee on behalf of the owner or
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holder of the Pari Passu Loan, into which the amounts set forth in Section
3.04(a) shall be deposited directly. Any such account or accounts shall be an
Eligible Account.
"Pari Passu Intercreditor Agreement": That certain
intercreditor agreement, dated August 7, 1998 by and between the Mortgage Loan
Seller and the initial holder of the Pari Passu Loan relating to the relative
rights of the holder of the Related Trust Fund Mortgage Loan and the holder of
such Pari Passu Loan, as the same may be amended from time to time.
"Pari Passu LC": A letter of credit that may be drawn and
applied to the repayment of the Pari Passu Loan related to Mortgage Loan No.
11969 if the conditions to mandatory prepayment of such Pari Passu Loan
contained in the related loan documentation are satisfied.
"Pari Passu Loan": The mortgage loan secured by the Pari Passu
Mortgage on a pari passu basis with the Related Trust Fund Mortgage Loan
pursuant to the terms of the Pari Passu Intercreditor Agreement. The Pari Passu
Loan is not a Mortgage Loan.
"Pari Passu Mortgage": Collectively, the Mortgages securing
the Pari Passu Loan.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate,
the Class A-2 Pass-Through Rate, the Class B Pass-Through Rate, the Class C
Pass-Through Rate, the Class D Pass-Through Rate, the Class E Pass-Through Rate,
the Class F Pass-Through Rate, the Class G Pass-Through Rate, the Class H
Pass-Through Rate, the Class I Pass-Through Rate, the Class J Pass-Through Rate,
the Class K Pass-Through Rate, the A-1 Component Pass-Through Rate, the A-2
Component Pass-Through Rate, the B Component Pass-Through Rate, the C-E
Component Pass-Through Rate and the F-K Component Pass-Through Rate.
"Paying Agent": The paying agent appointed pursuant to Section
5.06.
"Penalty Charges": With respect to any Mortgage Loan (or
successor REO Loan), any amounts actually collected thereon from the Mortgagor
that represent late payment charges or Default Interest, other than a Yield
Maintenance Charge or Excess Interest.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the
Original Certificate Balance or initial Notional Amount, as applicable, of such
Class of Certificates as of the Closing Date. With respect to a Residual
Certificate, the Percentage Interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities, regardless of whether issued by the Depositor, the
Servicer, the Special Servicer, the Trustee, the Fiscal Agent or any of their
respective Affiliates and having the required ratings, if any, provided for in
this definition:
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(xxiii) 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 that mature
in one year or less after the date of issuance; provided that any
obligation of, or guarantee by, FNMA or FHLMC, other than an unsecured
senior debt obligation of FNMA or FHLMC, shall be a Permitted
Investment only if such investment would not result in the downgrading,
withdrawal or qualification of the then-current rating assigned by each
Rating Agency to any Certificate as evidenced in writing;
(xxiv) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in 1 year or less after the date of
issuance and are issued or held by any depository institution or trust
company (including the Trustee) incorporated or organized under the
laws of the United States of America or any State thereof and subject
to supervision and examination by federal or state banking authorities,
so long as the commercial paper or other short-term debt obligations of
such depository institution or trust company are rated at least P-1 by
Moody's and A-1+ by S&P or such other rating as would not result in the
downgrading, withdrawal or qualification of the then-current rating
assigned by each Rating Agency to any Certificate, as evidenced in
writing;
(xxv) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of 1 year or less and where such repurchase
obligation has been entered into with a depository institution or trust
company (acting as principal) described in clause (ii) above;
(xxvi) debt obligations bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in one year or less
from the date of issuance, which debt obligations are rated at least
"AA-" by S&P and either (A) are rated P-1 by Moody's or (B) have the
following long-term ratings from Moody's (1) Aaa if such obligations
mature in more than 180 days from the date of issuance, (2) Aa3 if such
obligations mature in more than 90 days but less than 180 days from the
date of issuance, (3) Aa2 if such obligations mature in 90 days from
the date of issuance and (4) A2 if such obligations mature in 30 days
or less from the date of issuance, or such other rating as would not
result in the downgrading, withdrawal or qualification of the
then-current rating assigned by each Rating Agency to any Certificate
as specified in writing by each of the Rating Agencies; provided,
however, that securities issued by any particular corporation will not
be Permitted Investments to the extent that investment therein will
cause the then-outstanding principal amount of securities issued by
such corporation and held in the accounts established hereunder to
exceed 10% of the sum of the aggregate principal
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balance and the aggregate principal amount of all Permitted Investments
in such accounts;
(xxvii) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations) payable on
demand or on a specified date maturing in 1 year or less after the date
of issuance thereof and which is rated at least P-1 by Moody's and A-1+
by S&P;
(xxviii) money market funds, rated Aaa by Moody's and rated
AAAm or AAAmG by S&P; (xxix) any other demand, money market or time
deposit, obligation, security or investment, (a) with respect to which
each Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then-current rating of the Certificates that are currently being rated
by such Rating Agency and (b) which qualifies as a "cash flow
investment" pursuant to Section 860G(a)(6) of the Code;
provided, however, that in each case, if the investment is rated by S&P, (a) it
shall not have an "r" highlighter affixed to its rating from S&P, (b) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change and (c) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided, further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; provided, further, that no amount beneficially owned
by either the Upper-Tier REMIC or the Lower-Tier REMIC (even if not yet
deposited in the Trust) may be invested in investments (other than money market
funds) treated as equity interests for federal income tax purposes, unless the
Servicer receives an Opinion of Counsel, at its own expense, to the effect that
such investment will not adversely affect the status of either the Upper-Tier
REMIC or the Lower-Tier REMIC as a REMIC under the Code or result in the
imposition of a tax on such Upper-Tier REMIC or Lower-Tier REMIC. Permitted
Investments that are subject to prepayment or call may not be purchased at a
price in excess of par.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Placement Agent": Bear, Stearns & Co. Inc.
"Plan": As defined in Section 5.02(c).
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"Prepayment Assumption": A "constant prepayment rate" of 0%
used for determining the accrual of original issue discount, market discount and
premium, if any, on the Certificates for federal income tax purposes, assuming
that each Mortgage Loan with an Anticipated Repayment Date prepays on such date.
"Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Scheduled Principal
Distribution Amount for such Distribution Date, (b) the Unscheduled Principal
Distribution Amount for such Distribution Date and (c) the Principal Shortfall
for such Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Principal Shortfall": For any Distribution Date after the
initial Distribution Date, the amount, if any, by which (a) the related
Principal Distribution Amount for the preceding Distribution Date, exceeded (b)
the aggregate amount distributed in respect of principal on the Class A, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class I, Class J and
Class K Certificates for such preceding Distribution Date pursuant to Section
4.01(a) on such preceding Distribution Date. The Principal Shortfall for the
initial Distribution Date will be zero.
"Prospectus": The Prospectus dated August 18, 1998, as
supplemented by the Prospectus Supplement dated January 27, 1999 relating to the
offering of the Offered Certificates.
"Purchase Price": With respect to any Mortgage Loan to be
purchased by the Mortgage Loan Seller pursuant to the Mortgage Loan Purchase and
Sale Agreement, by the Servicer, the Special Servicer or the Controlling Class
Certificateholders pursuant to Section 3.18(b), or by the Servicer, the Special
Servicer, the Controlling Class Certificateholders or the Holders of the Class
LR Certificates pursuant to Section 9.01 or to be otherwise sold pursuant to
Section 3.18(c), a price equal to:
(xxx) the outstanding principal balance of such
Mortgage Loan as of the date of purchase; plus
(xxxi) all accrued and unpaid interest on such
Mortgage Loan at the related Mortgage Rate in effect from time
to time to but not including the Due Date in the Due Period of
purchase; plus
(xxxii) all related unreimbursed Servicing Advances
and accrued and unpaid interest on related Advances at the
Reimbursement Rate (except where the Servicer is the
purchaser), and unpaid Special Servicing Fees allocable to
such Mortgage Loan; plus
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(xxxiii) if such Mortgage Loan is being purchased by
the Mortgage Loan Seller pursuant to Section 3.3 of the
Mortgage Loan Purchase and Sale Agreement, all reasonable
out-of-pocket expenses reasonably incurred or to be incurred
by the Servicer, the Special Servicer, the Depositor and the
Trustee in respect of the Breach or Defect giving rise to the
repurchase obligation, including any expenses arising out of
the enforcement of the repurchase obligation.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"Qualified Institutional Buyer": As defined in Section
5.02(b).
"Qualified Insurer": (i) With respect to any Mortgage Loan,
REO Loan or REO Property, an insurance company or security or bonding company
qualified to write the related Insurance Policy in the relevant jurisdiction
with a minimum insurance financial strength rating of at least "Baa2" by Moody's
and a minimum claims paying ability rating of at least "A" by S&P, or, if not
rated by either, as has been confirmed in writing by each would not cause a
downgrade of the then current ratings assigned to any of the Certificates that
are then currently being rated by them and (ii) with respect to the fidelity
bond and errors and omissions Insurance Policy required to be maintained
pursuant to Section 3.07(c), an insurance company that has (A) an insurance
financial strength rating by Moody's that is no lower than two ratings below the
rating assigned to the then highest rated outstanding Certificate, but in no
event lower than "Baa2", and that has a claims paying ability rating of at least
"A" by S&P, or, in the case of clauses (i) and (ii), such other rating as each
Rating Agency shall have confirmed in writing will not cause such Rating Agency
to downgrade, qualify or withdraw the then-current rating assigned to any of the
Certificates that are then currently being rated by such Rating Agency.
"Rated Final Distribution Date": As to each Class of
Certificates, February 14, 2031, the first Distribution Date after the 24th
month following the end of the amortization term for the Mortgage Loan that, as
of the Cut-off Date, has the longest remaining amortization term.
"Rating Agency": Each of Moody's and S&P or their respective
successors in interest. If neither such rating agency nor any successor remains
in existence, "Rating Agency" shall be deemed to refer to such other NRSRO or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the Trustee, the Fiscal Agent, the Servicer and the Special
Servicer, and specific ratings of Moody's and S&P herein referenced shall be
deemed to refer to the equivalent ratings of the party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class I, Class J, Class K and Class
X Certificates.
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"Reimbursement Rate": The rate per annum (compounded monthly)
applicable to the accrual of interest on Servicing Advances in accordance with
Section 3.03(d) and P&I Advances in accordance with Section 4.03(d), which rate
per annum shall equal the "Prime Rate" published in the "Money Rates" section of
the New York edition of "The Wall Street Journal" (or, if such section or
publication is no longer available, such other comparable publication as
determined by the Trustee in its reasonable discretion) as may be in effect from
time to time, or, if the "Prime Rate" no longer exists, such other comparable
rate (as determined by the Trustee in its reasonable discretion) as may be in
effect from time to time.
"Related Certificates" and "Related Uncertificated Lower-Tier
Interest": For the following Classes of Uncertificated Lower-Tier Interests, the
related Class of Certificates set forth below and for the following Classes of
Certificates, the related Class of Uncertificated Lower-Tier Interests set forth
below:
Related Uncertificated
Related Certificate Lower-Tier Interest
Class A-1 Certificate Class LA-1 Uncertificated Interest
Class A-2 Certificate Class LA-2 Uncertificated Interest
Class B Certificate Class LB Uncertificated Interest
Class C Certificate Class LC Uncertificated Interest
Class D Certificate Class LD Uncertificated Interest
Class E Certificate Class LE Uncertificated Interest
Class F Certificate Class LF Uncertificated Interest
Class G Certificate Class LG Uncertificated Interest
Class H Certificate Class LH Uncertificated Interest
Class I Certificate Class LI Uncertificated Interest
Class J Certificate Class LJ Uncertificated Interest
Class K Certificate Class LK Uncertificated Interest
"Related Trust Fund Mortgage Loan": The Mortgage Loans
designated as Mortgage Loan ID number 11969A and 11969B on the Mortgage Loan
Schedule which are secured by liens co-equal to the liens securing the related
Pari Passu Loan pursuant to the Pari Passu Mortgage.
"REMIC": A "real estate mortgage investment conduit" as
defined in Section 860D of the Code (or any successor thereto).
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury Regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code.
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"REO Account": A segregated custodial account or accounts (or
subaccounts) created and maintained by the Special Servicer pursuant to Section
3.16 on behalf of the Trustee in trust for the Certificateholders, which shall
be entitled "GE Capital Realty Group, Inc, as Special Servicer, in trust for
registered Holders of Bear Stearns Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, REO Account." Any
such account or accounts shall be an Eligible Account.
"REO Acquisition": The acquisition for federal income tax
purposes of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO
Property pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property (or, with respect to the
Servicing Retained Mortgage Loan, an interest therein) remains part of the Trust
Fund, as providing for Assumed Scheduled Payments on each Due Date therefor, and
otherwise as having the same terms and conditions as its predecessor Mortgage
Loan, including, without limitation, with respect to the calculation of the
Mortgage Rate in effect from time to time (such terms and conditions to be
applied without regard to the default on such predecessor Mortgage Loan). Each
REO Loan shall be deemed to have an initial outstanding principal balance and
Stated Principal Balance equal to the outstanding principal balance and Stated
Principal Balance, respectively, of its predecessor Mortgage Loan as of the date
of the related REO Acquisition. All amounts due and owing in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of an REO Loan. All amounts payable or reimbursable to
the Servicer, the Special Servicer, the Fiscal Agent or the Trustee, as
applicable, in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid Special
Servicing Fees and Servicing Fees and any unreimbursed Advances, together with
any interest accrued and payable to the Servicer, the Fiscal Agent or the
Trustee in respect of such Advances in accordance with Section 3.03(d) or
Section 4.03(d), shall continue to be payable or reimbursable to the Servicer,
the Special Servicer, the Trustee or the Fiscal Agent in respect of an REO Loan.
Collections in respect of each REO Loan (exclusive of amounts to be applied to
the payment of, or to be reimbursed to the Servicer or the Special Servicer for
the payment of, the costs of operating, managing and maintaining the related REO
Property) shall be treated: first, as a recovery of accrued and unpaid interest
on such REO Loan at the related Mortgage Rate in effect from time to time to but
not including the Due Date in the Due Period of receipt; second, as a recovery
of principal of such REO Loan to the extent of its entire unpaid principal
balance; and third, in accordance with the Servicing Standard, as a recovery of
any other amounts due and owing in respect of such REO Loan, including, without
limitation, (i) Yield Maintenance Charges and Penalty Charges and (ii) Excess
Interest and other amounts, in that order.
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"REO Loan Accrual Period": With respect to any REO Loan and
any Due Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee for the benefit of the
Certificateholders through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer
of the Servicer or the Special Servicer, as applicable, in the form of Exhibit F
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to the initial
Trustee or Fiscal Agent, any vice president, assistant vice president, corporate
trust officer or assistant corporate trust officer in the Asset-Backed
Securities Trust Services Group of LaSalle National Bank or ABN AMRO Bank NV, as
the case may be, and with respect to any successor Trustee or Fiscal Agent, any
officer in the corporate trust department of the Trustee or Fiscal Agent, as the
case may be, or any other officer of the Trustee or Fiscal Agent customarily
performing functions similar to those performed by any of the above designated
officers to whom a particular matter is referred by the Trustee or Fiscal Agent
because of such officer's knowledge of and familiarity with the particular
subject.
"Retained Servicing Fiscal Agent": The fiscal agent under and
pursuant to the Servicing Retained Servicing Agreement.
"Retained Servicing Servicer": The "Servicer" under and
pursuant to the Servicing Retained Servicing Agreement.
"Retained Servicing Special Servicer": The "Special Servicer"
under and pursuant to the Servicing Retained Servicing Agreement.
"Retained Servicing Trustee": The trustee under and pursuant
to the Servicing Retained Servicing Agreement.
"Revised Rate": With respect to the Mortgage Loans, the
increased interest rate after the Anticipated Repayment Date (in the absence of
a default) for each applicable Mortgage Loan, as calculated and as set forth in
the related Mortgage Loan.
"S&P": Standard & Poor's Ratings Services, a division of
McGraw-Hill Co., Inc. and its successors and assigns.
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"S&P List of Approved Servicers": List of approved Servicers
and Special Servicers published by S&P.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the principal portions of (a) all Monthly
Payments (excluding Balloon Payments) due in respect of the Mortgage Loans
during or, if and to the extent not previously received or advanced pursuant to
Section 4.03 in respect of a preceding Distribution Date, prior to the related
Due Period, and all Assumed Scheduled Payments for the related Due Period, in
each case to the extent either (i) paid by the Mortgagor as of the Business Day
preceding the related Servicer Remittance Date (and not previously distributed
to Certificateholders) or (ii) advanced by the Servicer. the Trustee or the
Fiscal Agent, as applicable, pursuant to Section 4.03 in respect of such
Distribution Date, and (b) all Balloon Payments to the extent received during
the related Due Period, and to the extent not included in clause (a) above.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Certificate Balance of the Class A-1
Certificates and the Class A-2 Certificates, without giving effect to any
distributions in respect of principal on such Distribution Date, exceeds the sum
of (a) the aggregate Stated Principal Balance of the Mortgage Loans that will be
outstanding immediately following such Distribution Date and (b) the portion of
the Available Distribution Amount for such Distribution Date that will remain
after the distribution of interest has been made on the Class A Certificates on
such Distribution Date.
"Servicer": GE Capital Loan Services, Inc. a Delaware
corporation, and its successor in interest and assigns, or any successor
Servicer appointed as herein provided.
"Servicer Remittance Date": With respect to any Distribution
Date, the Business Day preceding such Distribution Date.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary
"out of pocket" costs and expenses (including attorneys' fees and expenses and
fees of real estate brokers) incurred by the Servicer, the Trustee or the Fiscal
Agent, as applicable, in connection with the servicing and administering of (a)
a Mortgage Loan (or Pari Passu Mortgage Loan) in respect of which a default,
delinquency or other unanticipated event has occurred or as to which a default
is reasonably foreseeable or (b) an REO Property, including, but not limited to,
the cost of (i) compliance with the Servicer's obligations set forth in Section
3.03(c), (ii) the preservation, restoration and protection of a Mortgaged
Property, (iii) obtaining any Insurance and
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Condemnation Proceeds or any Liquidation Proceeds of the nature described in
clauses (i) - (iv) of the definition of "Liquidation Proceeds," (iv) any
enforcement or judicial proceedings with respect to a Mortgaged Property,
including foreclosures, and (v) the operation, leasing, management, maintenance
and liquidation of any REO Property. With respect to the Pari Passu Loan and the
Related Trust Fund Mortgage Loan, and with respect to the Servicing Retained
Mortgage Loan and the Servicing Retained Paired Mortgage Loan, Servicing
Advances will be allocated on the basis specified in the definition of
"Appraised Value."
"Servicing Fee": With respect to each Mortgage Loan and REO
Loan, the fee payable to the Servicer pursuant to the first paragraph of Section
3.11(a).
"Servicing Fee Rate": With respect to any Distribution Date
and (x) each Mortgage Loan other than the Servicing Retained Mortgage Loans, and
with respect to the Pari Passu Loan, a rate equal to 0.057% per annum computed
on the basis of the Stated Principal Balance of the related Mortgage Loan and on
the basis of a year assumed to consist of 360 days and twelve 30-day months as
of the immediately preceding Distribution Date (in each case, after giving
effect to the distribution of principal of such Mortgage Loan on such
Distribution Date), and (y) the Servicing Retained Mortgage Loan, a rate equal
to 0.055% per annum.
"Servicing Officer": Any officer and/or employee of the
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the Servicer and
the Special Servicer to the Trustee and the Depositor on the Closing Date, as
such list may be amended from time to time thereafter.
"Servicing Retained Mortgage Loan": The Mortgage Loan
designated as Mortgage Loan ID number 16393 on the Mortgage Loan Schedule.
"Servicing Retained Mortgage Loan Intercreditor Agreement":
That certain intercreditor agreement, dated as of June 29, 1998 by and between
the Mortgage Loan Seller and the initial holder of the Servicing Retained
Mortgage Loan and the holder of the Servicing Retained Paired Loan.
"Servicing Retained Mortgage Loan Servicing Fee Rate": The
"Servicing Fee Rate" applicable to the Servicing Retained Mortgage Loan as
defined in the Servicing Retained Servicing Agreement.
"Servicing Retained Mortgage Loan Special Servicing Fee Rate":
The "Special Servicing Fee Rate" applicable to the Servicing Retained Mortgage
Loan as defined in the Servicing Retained Servicing Agreement.
"Servicing Retained Nonrecoverable P&I Advance": Any
"Nonrecoverable P&I Advance" (as defined in the Servicing Retained Servicing
Agreement) made with respect to the Servicing Retained Mortgage Loan pursuant to
and in accordance with the Servicing Retained Servicing Agreement.
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"Servicing Retained Nonrecoverable Servicing Advance": Any
"Nonrecoverable Servicing Advance" (as defined in the Servicing Retained
Servicing Agreement) made with respect to the Servicing Retained Mortgage Loan
pursuant to and in accordance with the Servicing Retained Servicing Agreement;
provided that if the Retained Servicing Servicer shall have made a "Servicing
Advance" (as defined in the Servicing Retained Servicing Agreement) in the
nature of an expenditure benefiting the related Mortgaged Property generally,
the portion thereof attributable to the Servicing Retained Mortgage Loan shall
be determined based on the outstanding balances of the Servicing Retained
Mortgage Loan and the Servicing Retained Paired Mortgage Loan on the date such
advance was made.
"Servicing Retained Paired Mortgage Loan" means the mortgage
loan identified on the Schedule G attached to the Servicing Retained Servicing
Agreement. The Servicing Retained Paired Mortgage Loan is not a Mortgage Loan.
"Servicing Retained Servicing Agreement": That certain pooling
and servicing agreement, dated as of June 1, 1998 by and among the Depositor,
Banc One Mortgage Capital Markets, LLC, as servicer, AMRESCO Management, Inc.,
as special servicer, LaSalle National Bank, as trustee and ABN AMRO Bank N.V.,
as fiscal agent.
"Servicing Standard": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan,
the occurrence of any of the following events:
(xxxiv) a payment default shall have occurred on such
Mortgage Loan at its original maturity date, or if the
maturity date of such Mortgage Loan has been extended, a
payment default occurs on such Mortgage Loan at its extended
maturity date; or
(xxxv) any Monthly Payment (other than a Balloon
Payment) is 60 days or more delinquent; or
(xxxvi) the date upon which the Servicer determines
that a payment default has occurred or is imminent or is
reasonably likely to occur and is not likely to be cured by
the related Mortgagor within 60 days; or
(xxxvii) the date upon which a decree or order of a
court or agency or supervisory authority having jurisdiction
in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law
or the appointment of a conservator or receiver or liquidator
in any insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs being entered against the
related Mortgagor; provided, however, that if such decree or
order is discharged or stayed within 60 days of being entered,
such Mortgage Loan shall not be a Specially Serviced Mortgage
Loan (and no Special Servicing Fees, Workout Fees or
Liquidation Fees will be payable with respect thereto); or
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(xxxviii) the related Mortgagor shall consent to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to such
Mortgagor or of or relating to all or substantially all of its
property; or
(xxxix) the related Mortgagor shall admit in writing
its inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable insolvency
or reorganization statute, make an assignment for the benefit
of its creditors, or voluntarily suspend payment of its
obligations; or
(xl) a default of which the Servicer has actual
notice (other than a failure by such Mortgagor to pay
principal or interest) and which in the opinion of the
Servicer materially and adversely affects the interests of the
Certificateholders has occurred and remained unremedied for
the applicable grace period specified in such Mortgage Loan
(or if no grace period is specified, 60 days); or
(xli) the Servicer has received actual notice of the
foreclosure or proposed foreclosure of any lien on the related
Mortgaged Property.
"Similar Law": As defined in Section 5.02 (c).
"Special Servicer": GE Capital Realty Group, Inc., a Texas
corporation, or any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially
Serviced Mortgage Loan and REO Loan, the fee payable to the Special Servicer
pursuant to the first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, (other than the Servicing Retained
Mortgage Loan), and the Pari Passu Loan (during such period as it would be a
Specially Serviced Mortgage Loan if it were a Mortgage Loan), 0.25% per annum
computed on the basis of the Stated Principal Balance of the related Mortgage
Loan and on the basis of a 360-day year with twelve 30-day months, and with
respect to the Servicing Retained Mortgage Loan, 0.125% per annum computed on
the basis of the Stated Principal Balance thereof and on the basis of a 360-day
year with twelve 30-day months.
"Specially Serviced Mortgage Loan": As defined in Section
3.01(a).
"Startup Day": The day designated as such in Section 10.10(b).
"State Street Bank and Trust Company": State Street Bank and
Trust Company and its successors and assigns.
"Stated Principal Balance": With respect to any Mortgage Loan,
as of any date of determination, an amount equal to (x) the Cut-off Date
Principal Balance of such Mortgage
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Loan, plus (y) any Mortgage Deferred Interest added to the principal balance of
such Mortgage Loan on or before the end of the immediately preceding Due Period
minus (z) the sum of:
(xlii) the principal portion of each Monthly Payment
due on such Mortgage Loan after the Cut-off Date, to the
extent received from the Mortgagor or advanced by the Servicer
and distributed to Certificateholders on or before such date
of determination;
(xliii) all Principal Prepayments received with
respect to such Mortgage Loan after the Cut-off Date, to the
extent distributed to Certificateholders on or before such
date of determination;
(xliv) the principal portion of all Insurance and
Condemnation Proceeds and Liquidation Proceeds received with
respect to such Mortgage Loan after the Cut-off Date, to the
extent distributed to Certificateholders on or before such
date of determination; and
(xlv) any reduction in the outstanding principal
balance of such Mortgage Loan resulting from a Deficient
Valuation that occurred prior to the end of the Due Period for
the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination,
an amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the sum of:
(xlvi) the principal portion of any P&I Advance made
with respect to the predecessor Mortgage Loan on or after the
date of the related REO Acquisition, to the extent distributed
to Certificateholders on or before such date of determination;
and
(xlvii) the principal portion of all Insurance and
Condemnation Proceeds, Liquidation Proceeds and REO Revenues
received with respect to such REO Loan, to the extent
distributed to Certificateholders on or before such date of
determination.
A Mortgage Loan or an REO Loan shall be deemed to be part of
the Trust Fund and to have an outstanding Stated Principal Balance greater than
zero until the Distribution Date on which the payments or other proceeds, if
any, received in connection with a Liquidation Event in respect thereof are to
be (or, if no such payments or other proceeds are received in connection with
such Liquidation Event, would have been) distributed to Certificateholders,
following which Distribution Date, the Stated Principal Balance of such Mortgage
Loan will be zero.
"Subordinate Certificate": Any Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class I, Class J or Class K Certificate.
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"Sub-Servicer": Any Person with which the Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
Servicer or the Special Servicer, as the case may be, and any Sub-Servicer
relating to servicing and administration of Mortgage Loans as provided in
Section 3.22.
"Tax Returns": The federal income tax returns on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions, together with
any and all other information, reports or returns that may be required to be
furnished to the Certificateholders or filed with the Internal Revenue Service
or any other governmental taxing authority under any applicable provisions of
federal, state or local tax laws.
"30/360 Mortgage Loans": The Mortgage Loans indicated as such
on the Mortgage Loan Schedule.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered
hereunder.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the Trust, consisting of: (i) the Mortgage Loans as from time to
time are subject to this Agreement and all payments under and proceeds of such
Mortgage Loans received after the Cut-off Date (other than payments of principal
and interest due and payable on such Mortgage Loans on or before the Cut-off
Date), together with all documents included in the related Mortgage Files; (ii)
such funds or assets as from time to time are deposited in the Certificate
Account, the Distribution Accounts, any Servicing Accounts, and, if established,
the REO Account; (iii) any REO Property; (iv) the rights of the mortgagee under
all Insurance Policies with respect to the Mortgage Loans and (v) the rights of
the Depositor under Sections 2, 3.2, 3.3, 3.4, 3.5, 3.6 and 5 of the Mortgage
Loan Purchase and Sale Agreement.
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"Trustee": LaSalle National bank, a national bank chartered
under the laws of the United States of America, in its capacity as trustee and
its successors in interest, or any successor trustee appointed as herein
provided.
"Trustee Exception Report": As defined in Section 2.02(e).
"Trustee Fee": With respect to each Mortgage Loan and for any
Distribution Date, the fee to be paid to the Trustee pursuant to Section 8.05 as
compensation for the Trustee's activities under this Agreement. The Trustee Fee
shall be paid by the Servicer on each Distribution Date. Subject to Section 3.11
hereof, no Trustee Fee will be payable hereunder with respect to the Pari Passu
Loan.
"UCC": The Uniform Commercial Code, as enacted in each
applicable state.
"UCC Financing Statement": A financing statement executed and
filed pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1,
Class LA-2, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class
LH, Class LI, Class LJ and Class LK Uncertificated Interests.
"Underwritten Debt Service Coverage Ratio": With respect to
any Mortgage Loan, the ratio of (i) Underwritten Net Cash Flow with respect to
the related Mortgaged Property to (ii) the aggregate amount of the Monthly
Payments due for the 12-month period immediately following the Cut-off Date,
except with respect to those Mortgage Loans identified on Schedule 2 where
Monthly Payments initially pay interest only, but for purposes of this
definition only, shall be assumed to include interest and principal (based upon
the amortization schedule length indicated on Schedule 2); provided, however,
that in the case of a Servicing Retained Mortgage Loan or the Related Trust Fund
Mortgage Loan, the amount in the preceding clause (i) shall be an amount equal
to the product of (A) the amount that would be in such clause (i) without giving
effect to this proviso and (B) a fraction, the numerator of which is equal to
the principal amount of such Servicing Retained Mortgage Loan or Related Trust
Fund Mortgage Loan, as applicable, and the denominator of which is equal to the
sum of such numerator and the principal amount of (a) the Servicing Retained
Paired loan in the case of the Servicing Retained Mortgage Loan, or (b) the
related Pari Passu Loan in the case of a Related Trust Fund Mortgage Loan.
"Underwritten Net Cash Flow": With respect to any Mortgage
Loan, the estimated annual revenue derived from the use and operation of such
Mortgaged Property, less (i) estimated variable annual expenses, including
operating expenses (such as utilities, administrative expenses, repairs and
maintenance, management fees and advertising), (ii) fixed expenses (such as
insurance and real estate taxes) and (iii) capital expenditures for annual
estimated replacement reserves, tenant improvements and leasing commissions, in
each case excluding certain non-operating expenses as depreciation,
amortization, partnership distributions and financing fees; provided, however,
that in the case of the Servicing Retained Mortgage Loan or the Related Trust
Fund Mortgage Loan, the amount in the preceding clause shall be an amount equal
to the product of (A) the amount that would be in such clause without giving
effect to this
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proviso and (B) a fraction, the numerator of which is equal to the principal
amount of such Servicing Retained Mortgage Loan or Related Trust Fund Mortgage
Loan, as applicable, and the denominator of which is equal to the sum of such
numerator and the principal amount of (a) the Servicing Retained Paired Loan in
the case of the Servicing Retained Mortgage Loan, or (b) related the Pari Passu
Loan in the case of a Related Trust Fund Mortgage Loan.
"Underwriter": Bear, Stearns & Co. Inc.
"Uninsured Cause": Any cause of damage to property subject to
a Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unscheduled Principal Distribution Amount": With respect to
any Distribution Date, the aggregate of:
(a) all Principal Prepayments received on the Mortgage Loans
during the related Due Period; and
(b) the principal portions of all Liquidation Proceeds,
Insurance and Condemnation Proceeds and, if applicable, REO Revenues received
with respect to the Mortgage Loans and any REO Loans during the related Due
Period, but in each case only to the extent that such principal portion
represents a recovery of principal for which no advance was previously made
pursuant to Section 4.03 in respect of a preceding Distribution Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or sub-account) created and maintained by the Trustee pursuant to
Section 3.04(c) in trust for the Certificateholders, which shall be entitled
LaSalle National Bank, as Trustee, in trust for the registered Holders of Bear
Stearns Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through
Certificates, Series 1999-C1, Upper-Tier Distribution Account". Any such account
or accounts (or subaccount) shall be an Eligible Account.
"Upper-Tier REMIC": One of the two separate REMICs comprising
the Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States or any political subdivision thereof, an estate whose income is
subject to United States federal income tax regardless of its source or a trust
if a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more such U.S. Persons have the
authority to control all substantial decisions of such trust, (or, to the extent
provided in applicable Treasury Regulations, certain trusts in existence on
August 20, 1996 which are eligible to be treated as U.S. Persons).
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"Voting Rights": The portion of the voting rights of all of
the Certificates, which is allocated to any Certificate. At all times during the
term of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates, and (ii) in the case of any other Class of Regular Certificates a
percentage equal to the product of 96% and a fraction, the numerator of which is
equal to the aggregate Certificate Balance of such Class, in each case,
determined as of the Distribution Date immediately preceding such time, and the
denominator of which is equal to the aggregate Certificate Balance of the
Regular Certificates, each determined as of the Distribution Date immediately
preceding such time. Neither the Class R Certificates nor the Class LR
Certificates will be entitled to any Voting Rights. For purposes of determining
Voting Rights, the Certificate Balance of any Class shall be deemed to be
reduced by the amount allocated to such Class of any Appraisal Reductions
related to Mortgage Loans as to which Liquidation Proceeds or other final
payment has not yet been received. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans as of the first day of the related Interest Accrual Period,
weighted on the basis of their respective Stated Principal Balances as of the
preceding Distribution Date (after giving effect to the distribution of
principal on such Distribution Date), or, in the case of the first Distribution
Date, the Cut-off Date.
"Withheld Amounts": As defined in Section 3.25(a).
"Workout Fee": The fee paid to the Special Servicer with
respect to each Corrected Mortgage Loan other than with respect to the Servicing
Retained Mortgage Loan as to which no such fee shall be payable.
"Workout Fee Rate": A fee of 1.00% of each collection of
interest and principal, including (i) Monthly Payments, (ii) Balloon Payments
and (iii) payments (other than those included in clause (i) or (ii) of this
definition) at maturity, received on each Corrected Mortgage Loan (other than
with respect to the Servicing Retained Mortgage Loan) for so long as it remains
a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan,
the yield maintenance charge set forth in the related Mortgage Loan documents.
"Yield Rate": With respect to any Mortgage Loan, the yield
rate set forth in the related Mortgage Loan documents and applied to determine
the amount of any Yield Maintenance Charge with respect to such Mortgage Loan.
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SECTION 1.02. Certain Calculations.
Unless otherwise specified herein, for purposes of determining
amounts with respect to the Certificates and the rights and obligations of the
parties hereto, the following provisions shall apply:
(a) All calculations of interest (other than as provided in
the Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(b) All Servicing Fees and Special Servicing Fees shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
(c) Any Mortgage Loan payment is deemed to be received on the
date such payment is actually received by the Servicer, the Special Servicer or
the Trustee; provided, however, that for purposes of calculating distributions
on the Certificates, Principal Prepayments with respect to any Mortgage Loan
are deemed to be received on the date they are applied in accordance with the
Servicing Standard consistent with the terms of the related Mortgage Note and
Mortgage to reduce the outstanding principal balance of such Mortgage Loan on
which interest accrues.
(d) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the Certificate
Balance of such Class of Certificates on such Distribution Date after giving
effect to (a) any distributions made on such Distribution Date pursuant to
Section 4.01(a), (b) any Collateral Support Deficit allocated to such Class on
such Distribution Date pursuant to Section 4.04 and (c) the addition of any
Certificate Deferred Interest allocated to such Class and added to such
Certificate Balance pursuant to Section 4.06(b).
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby assign, transfer and convey to the Trustee,
without recourse, in trust for the benefit of the Certificateholders all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in, to and under (i) the Mortgage
Loans identified on the Mortgage Loan Schedule, (ii) Sections 2, 3.2, 3.3, 3.4,
3.5, 3.6 and 5 of the Mortgage Loan Purchase and Sale Agreement, (iii) its
rights under the Servicing Retained Servicing Agreement with respect to the
Servicing of the Servicing Retained Mortgage Loan, and (iv) all other assets
included or to be included in the Trust Fund. Such assignment includes all
interest and principal received or receivable on or with respect to the
Mortgage Loans (other than payments of principal and interest due and payable
on the Mortgage Loans on or before the Cut-off Date). The transfer of the
Mortgage Loans and the related rights and property accomplished hereby is
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absolute and, notwithstanding Section 11.07, is intended by the parties to
constitute a sale. In connection with the assignment to the Trustee of Sections
2, 3.2, 3.3, 3.4, 3.5, 3.6 and 5 of the Mortgage Loan Purchase and Sale
Agreement, it is intended that the Trustee get the benefit of Section 5 thereof
in connection with any exercise of rights thereunder, and the Depositor shall
use its reasonable best efforts to make available to the Trustee the benefits of
Section 5 thereof in connection with such exercise of rights.
In connection with the transfer and assignment of the Related
Trust Fund Mortgage Loan to the Trustee, the Depositor does hereby deliver to
the Trustee, with a copy to the Servicer and the Special Servicer, a copy of the
Pari Passu Intercreditor Agreement, and assigns to the Trustee its rights as
holder of the Related Trust Fund Mortgage Loan under the Pari Passu
Intercreditor Agreement. The transfer and assignment of the Servicing Retained
Mortgage Loan to the Trustee and the right to service such Mortgage Loan is
subject to the terms and conditions of the Servicing Retained Servicing
Agreement. In connection with the transfer and assignment of the Servicing
Retained Mortgage Loan to the Trustee, the Depositor does hereby deliver to the
Trustee, with a copy to the Servicer and Special Servicer, a copy of the
Servicing Retained Servicing Agreement and the Servicing Retained Mortgage Loan
Intercreditor Agreement, and assigns to the Trustee its rights as holder of the
Servicing Retained Mortgage Loan under the Servicing Retained Mortgage Loan
Intercreditor Agreement.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Seller pursuant to the Mortgage
Loan Purchase and Sale Agreement to deliver to and deposit with, or cause to be
delivered to and deposited with, the Trustee or a Custodian appointed thereby,
on or before the Closing Date, the Mortgage File for each Mortgage Loan so
assigned. If the Mortgage Loan Seller cannot deliver, or cause to be delivered,
as to any Mortgage Loan, any original Mortgage Note, the Mortgage Loan Seller
shall deliver a copy or duplicate original of such Mortgage Note, together with
an affidavit certifying that the original thereof has been lost or destroyed. If
the Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents or instruments referred to in clauses (ii),
(iv), (vi), (viii), (xi) and (xii) of the definition of "Mortgage File," with
evidence of recording thereon, solely because of a delay caused by the public
recording office where such document or instrument has been delivered for
recordation, the delivery requirements of the Mortgage Loan Purchase and Sale
Agreement and this Section 2.01(b) shall be deemed to have been satisfied as to
such non-delivered document or instrument, and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File, provided
that a photocopy of such non-delivered document or instrument (certified by the
Mortgage Loan Seller to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Trustee or a Custodian appointed
thereby on or before the Closing Date, and either the original of such
non-delivered document or instrument, or a photocopy thereof (certified by the
appropriate county recorder's office, in the case of the documents and/or
instruments referred to in clause (ii) of the definition of "Mortgage File," to
be a true and complete copy of the original thereof submitted for recording),
with evidence of recording thereon, is delivered to the Trustee or such
Custodian within 120 days of the Closing Date (or within such longer period
after the Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so
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long as the Mortgage Loan Seller is, as certified in writing to the Trustee no
less often than every 90 days, in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy). If the
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in the
definition of "Mortgage File," with evidence of recording thereon, if
applicable, for any other reason, including, without limitation, that such
non-delivered document or instrument has been lost, the delivery requirements of
the Mortgage Loan Purchase and Sale Agreement and this Section 2.01(b) shall be
deemed to have been satisfied as to such non-delivered document or instrument,
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a photocopy of such non-delivered
document or instrument (with evidence of recording thereon and certified in the
case of the documents and/or instruments referred to in clause (ii) of the
definition of "Mortgage File" by the appropriate county recorder's office to be
a true and complete copy of the original thereof submitted for recording) is
delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date, together with an affidavit certifying that the original thereof
has been lost or destroyed. Neither the Trustee nor any Custodian shall in any
way be liable for any failure by the Mortgage Loan Seller or the Depositor to
comply with the delivery requirements of the Mortgage Loan Purchase and Sale
Agreement and this Section 2.01(b). With respect to any Mortgage Loan and
notwithstanding the foregoing or the definition of "Mortgage File," the Mortgage
Loan 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 Mortgage Loan Seller by the applicable
filing office, and the Mortgage Loan Seller may deliver an assignment referred
to in clauses (iii), (v) or (vii) of the definition of "Mortgage File" 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 Mortgage Loan Seller
by the applicable recording office. The Depositor shall obtain such filing or
recording information from the Mortgage Loan Seller for such Mortgage Loans and
cause such filing or recording information to be inserted into the applicable
document.
(c) Except under the circumstances provided for in the last sentence of this
subsection (c), the Mortgage Loan Seller shall as to each Mortgage Loan,
promptly (and in any event within 30 days of the later of the Closing Date and
the Trustee's or Custodian's actual receipt of the related documents) cause to
be filed or recorded, as the case may be, in the appropriate public office for
real property records or UCC Financing Statements, as appropriate, each
assignment to the Trustee referred to in clauses (iii), (v) and (vii) of the
definition of "Mortgage File" and each UCC-3 to the Trustee referred to in
clause (xi) of the definition of "Mortgage File." Each such assignment shall
reflect that it should be returned by the public recording office to the Trustee
or the Custodian following recording, and each such UCC-3 shall reflect that the
file copy thereof should be returned to the Trustee or the Custodian following
filing. Subject to Section 2.01(b), if any such document or instrument is lost
or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Mortgage Loan Seller shall prepare or cause to be prepared a
substitute therefor or cure such defect, as the case may be, and shall cause the
same to be duly recorded or filed, as appropriate, and thereafter to be
delivered to the Custodian. The Depositor shall execute, or cause the Mortgage
Loan Seller to
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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 Trustee or a Custodian or its agent by 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) of the definition of "Mortgage File," or to file any UCC-3 to the
Trustee referred to in clause (xi) of the definition of "Mortgage File," in
those jurisdictions where, in the written opinion of local counsel (which
opinion shall not be an expense of the Trust Fund) acceptable to the Depositor
and the Trustee, such recordation and/or filing is not required to protect the
Trustee's interest in the related Mortgage Loans against sale, further
assignment, satisfaction or discharge by the Mortgage Loan Seller, the Servicer,
the Special Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time), or copies thereof, that are not
required to be a part of a Mortgage File in accordance with the definition
thereof shall be delivered to the Servicer on or before the Closing Date
(subject to Section 2.01(b) and shall be held by the Servicer on behalf of the
Trustee in trust for the benefit of the Certificateholders.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Servicer, on or before
the Closing Date, a fully executed original counterpart of the Mortgage Loan
Purchase and Sale Agreement, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its reasonable best efforts to
require that, promptly after the Closing Date, but in all events within three
Business Days after the Closing Date, the Mortgage Loan Seller shall cause all
funds on deposit in escrow accounts maintained with respect to the Mortgage
Loans in the name of the Mortgage Loan Seller or any other name to be
transferred to the Servicer (or a Sub-Servicer) for deposit into Servicing
Accounts.
SECTION 2.02. Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this
Agreement, acknowledges receipt by it or a Custodian on its behalf (but subject
to (i) the provisions of Section 2.01, (ii) the further review provided for in
this Section 2.02 and (iii) any exceptions noted on the Trustee Exception
Report) of the applicable documents specified in the definition of "Mortgage
File" with respect to each Mortgage Loan (including without limitation each
related Mortgage Note), of a fully executed original counterpart of the Mortgage
Loan Purchase and Sale Agreement and of all other assets included in the Trust
Fund, in good faith and without notice of any adverse claim, and declares that
it or a Custodian on its behalf holds and will hold such documents and the other
documents delivered or caused to be delivered by the Mortgage Loan Seller
constituting the Mortgage Files, and that it holds and will hold such other
assets included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders.
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(b) Within 60 days of the Closing Date, the Trustee or a
Custodian on its behalf shall review each of the Mortgage Loan documents
delivered or caused to be delivered by the Mortgage Loan Seller constituting the
Mortgage Files; and, promptly following such review (but in no event later than
90 days after the Closing Date), the Trustee shall certify in writing to each of
the Rating Agencies, the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder (provided it shall have identified itself, and
furnished to the Trustee a notice address for the delivery of such
certification) and the Mortgage Loan Seller that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full
or any Mortgage Loan specifically identified in any exception report annexed
thereto as not being covered by such certification), (i) all documents specified
in the definition of "Mortgage File," as applicable, are in its possession, (ii)
all documents delivered or caused to be delivered by the Mortgage Loan Seller
constituting the Mortgage Files have been reviewed by it or by a Custodian on
its behalf and appear regular on their face and relate to such Mortgage Loan,
and (iii) based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (i), (ii), (iii), (iv), (vi) and (ix)(c) in the definition
of "Mortgage Loan Schedule" is correct.
(c) The Trustee or a Custodian on its behalf shall review each
of the Mortgage Loan documents received thereby subsequent to the Closing Date;
and, on or about the first anniversary of the Closing Date, the Trustee shall
certify in writing to each of the Rating Agencies, the Depositor, the Servicer,
the Special Servicer and the Mortgage Loan Seller that, as to each Mortgage Loan
listed on the Mortgage Loan Schedule (other than any Mortgage Loan as to which a
Liquidation Event has occurred or any Mortgage Loan specifically identified in
any exception report annexed thereto as not being covered by such
certification), (i) all documents specified in the definition of "Mortgage
File," as applicable, are in its possession, (ii) all Mortgage Loan documents
received by it or any Custodian have been reviewed by it or by such Custodian on
its behalf and appear regular on their face and relate to such Mortgage Loan and
(iii) based on the examinations referred to in subsection (b) above and this
subsection (c) and only as to the foregoing documents, the information set forth
in the Mortgage Loan Schedule with respect to the items specified in clauses
(i), (ii), (iii), (iv), (vi) and (ix)(c) of the definition of "Mortgage Loan
Schedule" is correct.
(d) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (iv) - (viii), (x) and (xiv) of the definition of
"Mortgage File" exist or are required to be delivered by the Depositor, the
Mortgage Loan Seller or any other Person or (ii) to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are genuine,
enforceable or appropriate for the represented purpose or that they are other
than what they purport to be on their face.
(e) If, in the process of reviewing the Mortgage Files or at
any time thereafter, the Trustee or any Custodian finds any document or
documents constituting a part of the Mortgage File not to have been properly
executed or, subject to Section 2.01(b), not to have been delivered, to contain
information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or to be
defective on its face (each, a
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"Defect" in the related Mortgage File), the Trustee shall promptly so notify the
Depositor, the Servicer, the Special Servicer the Directing Certificateholder
and the Mortgage Loan Seller (and in no event later than 90 days after the
Closing Date and every 90 days thereafter until June 1, 2000, and annually
thereafter), by providing a written report ( the "Trustee Exception Report")
setting forth with particularity for each affected Mortgage Loan the nature of
such Defect.
SECTION 2.03. Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Seller's Repurchase of Mortgage Loans for Defects in
Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware, and the Depositor has taken all necessary
corporate action to authorize the execution, delivery and
performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and
all the transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign and
transfer the Mortgage Loans in accordance with this Agreement;
(ii) Assuming the due authorization, execution and
delivery of this Agreement by each other party hereto, this
Agreement and all of the obligations of the Depositor
hereunder are the legal, valid and binding obligations of the
Depositor, enforceable against the Depositor in accordance
with the terms of this Agreement, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement
of creditors' rights generally, and by general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement
and the performance of its obligations hereunder by the
Depositor will not conflict with any provisions of any law or
regulation to which the Depositor is subject, or conflict
with, result in a breach of or constitute a default under any
of the terms, conditions or provisions of the certificate of
incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a
party or by which it is bound, or any order or decree
applicable to the Depositor, or result in the creation or
imposition of any lien on any of the Depositor's assets or
property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions
contemplated by this Agreement; the Depositor has obtained any
consent, approval, authorization or order of any court or
governmental agency or body required for the execution,
delivery and performance by the Depositor of this Agreement;
(iv) There is no action, suit or proceeding pending
or, to the Depositor's knowledge, threatened against the
Depositor in any court or by or before any other governmental
agency or instrumentality which would materially
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and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions
contemplated by this Agreement;
(v) The transfer of the Mortgage Loans to the Trustee
as contemplated herein requires no regulatory approval, other
than any such approvals as have been obtained, and is not
subject to any bulk transfer or similar law in effect in any
applicable jurisdiction except for any such approvals that
have been received and copies of which have been provided to
the Trustee and the Underwriter;
(vi) The Depositor is the lawful owner of the
Mortgage Loans with the full right and authority to sell,
assign and transfer the Mortgage Loans to the Trust; and
(vii) The Depositor is transferring the Mortgage
Loans to the Trustee for the benefit of the Certificateholders
free and clear of any and all liens, pledges, charges and
security interests.
The representations and warranties of the Depositor set forth
in this Section 2.03(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(b) If any Certificateholder, the Servicer, the Special Servicer (in the case of
a Specially Serviced Mortgage Loan) or the Trustee discovers or receives notice
of a Defect in any Mortgage File or a breach of any representation or warranty
set forth in, or required to be made with respect to a Mortgage Loan by the
Mortgage Loan Seller pursuant to, the Mortgage Loan Purchase and Sale Agreement
(a "Breach"), which Defect or Breach, as the case may be, materially and
adversely affects the value of any Mortgage Loan (or Pari Passu Loan) or the
interests of the Certificateholders therein, such Certificateholder, the
Servicer, the Special Servicer or the Trustee, as applicable, shall give prompt
written notice of such Defect or Breach, as the case may be, to the Trustee, the
Depositor, the Servicer, the Special Servicer, each Rating Agency, the Mortgage
Loan Seller and shall request that the Mortgage Loan Seller, not later than the
earlier of 90 days from the Mortgage Loan Seller's receipt of such notice or the
Mortgage Loan Seller's discovery of such Breach, cure such Defect or Breach, as
the case may be, in all material respects or repurchase the affected Mortgage
Loan at the applicable Purchase Price or in conformity with the Mortgage Loan
Purchase and Sale Agreement. Any Defect or Breach which causes any Mortgage Loan
not to be a "qualified mortgage" (within the meaning of Section 860G(a)(3) of
the Code) shall be deemed to materially and adversely affect the interest of
Certificateholders therein. If a Defect or Breach has not been cured (or the
related Mortgage Loan has not been repurchased) within the 90 day period
specified above, the Servicer, the Special Servicer or the Trustee, as
applicable, shall notify the Directing Certificateholder as to such Defect or
Breach promptly following the expiration of such period.
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If the affected Mortgage Loan is to be repurchased, the Trustee shall designate
the Certificate Account as the account into which funds in the amount of the
Purchase Price are to be deposited by wire transfer.
(c) In connection with any repurchase of a Mortgage Loan
contemplated by this Section 2.03, the Trustee, the Servicer and the Special
Servicer shall each tender to the Mortgage Loan Seller, upon delivery to each of
the Trustee, the Servicer and the Special Servicer of a trust receipt executed
by the Mortgage Loan Seller, all portions of the Mortgage File and other
documents pertaining to such Mortgage Loan possessed by it, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Trustee shall be endorsed or assigned, as the case may be, to the Mortgage
Loan Seller in the same manner as provided in Section 3.3 of the Mortgage Loan
Purchase and Sale Agreement.
(d) Section 3.3 of the Mortgage Loan Purchase and Sale
Agreement provides the sole remedy available to the Certificateholders, or the
Trustee on behalf of the Certificateholders, respecting any Defect in a Mortgage
File or any Breach of any representation or warranty set forth in or required to
be made pursuant to Section 3.2 of such Mortgage Loan Purchase and Sale
Agreement.
(e) The Trustee and the Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of the Mortgage Loan Seller under
Section 3.3 of the Mortgage Loan Purchase and Sale Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, shall be carried
out in such form, to such extent and at such time as the Trustee or the Special
Servicer, as the case may be, would require were it, in its individual capacity,
the owner of the affected Mortgage Loan(s). The Trustee and the Special
Servicer, as the case may be, shall be reimbursed for the reasonable costs of
such enforcement: first, from a specific recovery of costs, expenses or
attorneys' fees against the Mortgage Loan Seller; second, pursuant to Section
3.05(a)(vii), out of the related Purchase Price, to the extent that such
expenses are a specific component thereof; and third, if at the conclusion of
such enforcement action it is determined that the amounts described in clauses
first and second are insufficient, then pursuant to Section 3.05(a)(viii), out
of general collections on the Mortgage Loans on deposit in the Certificate
Account.
SECTION 2.04. Execution of Certificates.
The Trustee hereby acknowledges the assignment to it of the
Mortgage Loans and, subject to Sections 2.01 and 2.02, the delivery to it or a
Custodian on its behalf of the Mortgage Files and a fully executed original
counterpart of the Mortgage Loan Purchase and Sale Agreement, together with the
assignment to it of all other assets included in the Trust Fund. Concurrently
with such assignment and delivery and in exchange therefor, the Trustee
acknowledges the issuance of the Uncertificated Lower-Tier Interests to the
Depositor and the authentication and delivery of the Class LR Certificates to or
upon the order of the Depositor, in exchange for the Mortgage Loans, receipt of
which is hereby acknowledged, and immediately thereafter, the Trustee
acknowledges that it has executed and caused the Authenticating Agent to
authenticate and to deliver to or upon the order of the Depositor, in exchange
for the Uncertificated Lower-Tier Interests, the Regular Certificates and the
Class R Certificates, and the
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Depositor hereby acknowledges the receipt by it or its designees, of such
Certificates in authorized Denominations evidencing the entire beneficial
ownership of the Upper-Tier REMIC.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Servicer to Act as Servicer; Special Servicer to
Act as Special Servicer; Administration of the Mortgage Loans.
(a) Each of the Servicer and the Special Servicer shall
diligently service and administer the Mortgage Loans and Pari Passu Loan which
it is obligated to service pursuant to this Agreement on behalf of the Trustee
for the benefit of the Certificateholders or for the benefit of the holder of
such Pari Passu Loan (in each case as determined by the Servicer or the Special
Servicer, as the case may be, in its good faith and reasonable business
judgment) in accordance with applicable law, the terms of this Agreement and the
terms of the respective Mortgage Loans or Pari Passu Loan and, to the extent
consistent with the foregoing, with the same care, skill, prudence and diligence
with which the Servicer or Special Servicer, as the case may be: (1) services
and administers similar mortgage loans for other third-party portfolios, giving
due consideration to the customary and usual standards of practice of prudent
institutional, multifamily and commercial mortgage lenders servicing their own
mortgage loans, or (2) services and administers commercial, multifamily and
manufactured housing community mortgage loans owned by the Servicer or Special
Servicer, as the case may be, whichever standard is higher, and with a view to
the maximization of timely recovery of principal and interest on a present value
basis on the Mortgage Loans, Pari Passu Loan or Specially Serviced Mortgage
Loans or specially serviced Pari Passu Loan, as applicable, and the best
interests of the Trust and the Certificateholders or for the benefit of the
holder of such Pari Passu Loan, as determined by the Servicer or Special
Servicer, as the case may be, in its reasonable judgment, notwithstanding:
(i) any relationship that the Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Mortgagor or any other party to this Agreement;
(ii) the ownership of any Certificate by the Servicer
or the Special Servicer, as the case may be, or any Affiliate thereof;
(iii) the Servicer's obligation to make Advances;
(iv) the Servicer's or Special Servicer's, as the
case may be, right to receive compensation for its services hereunder or with
respect to any particular transaction; and
(v) owning or managing any other mortgage loans or
mortgaged properties for third parties (the foregoing, collectively referred to
as the "Servicing Standard").
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Without limiting the foregoing, subject to Section 3.21 (other
than with respect to any Pari Passu Loan), the Special Servicer shall be
obligated to service and administer (i) any Mortgage Loans (or Pari Passu Loan)
as to which a Servicing Transfer Event has occurred and is continuing (the
"Specially Serviced Mortgage Loans") and (ii) any REO Properties; provided,
however, that the Servicer shall continue to make all calculations, and prepare,
or cause to be prepared, all reports to the Certificateholders required
hereunder with respect to the Specially Serviced Mortgage Loans as if no
Servicing Transfer Event had occurred and with respect to the REO Properties
(and the related REO Loans) as if no REO Acquisition had occurred, and to render
such incidental services with respect to such Specially Serviced Mortgage Loans
and REO Properties as are specifically provided for herein; provided, further,
however, that the Servicer shall not be liable for failure to comply with such
duties insofar as such failure results from a failure of the Special Servicer to
provide sufficient information to the Servicer to comply with such duties. Each
Mortgage Loan (or Pari Passu Loan) that becomes a Specially Serviced Mortgage
Loan shall continue as such until satisfaction of the conditions specified in
Section 3.21(a). Without limiting the foregoing, subject to Section 3.21 (other
than with respect to any Pari Passu Loan), the Servicer shall be obligated to
service and administer all Mortgage Loans (or Pari Passu Loan) which are not
Specially Serviced Mortgage Loans; provided, however, that the Special Servicer
shall make the inspections, use its reasonable best efforts consistent with the
Servicing Standard to collect the statements and shall prepare the reports in
respect of the related Mortgaged Properties with respect to Specially Serviced
Mortgage Loans in accordance with Section 3.12 and, at its option, the Special
Servicer may, provided it provides notice to the Servicer of its intention,
perform inspections and use its reasonable best efforts consistent with the
Servicing Standard to collect statements and prepare reports with respect to any
other Mortgaged Property, all at no additional expense to the Trust, and if the
Special Servicer takes such actions in compliance with the Servicing Standard
and on the terms set forth herein and provides an Officer's Certificate
certifying that it has done so on or before the date on which the Servicer
otherwise would have been required to take such action, the Servicer shall be
relieved of such obligations with respect to such Mortgaged Properties during
such period.
(b) Subject only to the Servicing Standard and the
terms of this Agreement and of the respective Mortgage Loans (and to the terms
of the Pari Passu Intercreditor Agreement in connection with the Pari Passu
Loan) the Servicer and the Special Servicer each shall have full power and
authority, acting alone, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, with respect to
each Mortgage Loan (or Pari Passu Loan) it is obligated to service under this
Agreement, each of the Servicer and the Special Servicer, in its own name, is
hereby authorized and empowered by the Trustee and obligated to execute and
deliver, on behalf of the Certificateholders and the Trustee or any of them, or
on behalf of the holder of a Pari Passu Loan, any and all financing statements,
continuation statements and other documents or instruments necessary to maintain
the lien created by the related Mortgage (or Pari Passu Mortgage) or other
security document in the related Mortgage File on the related Mortgaged Property
and related collateral; subject to Section 3.20, any and all modifications,
waivers, amendments or consents to or with respect to any documents contained in
the related Mortgage File; and any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments. Subject to Section 3.10, the Trustee
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(and related holder of any Pari Passu Loan) shall furnish, or cause to be
furnished, to the Servicer or the Special Servicer any powers of attorney and
other documents necessary or appropriate to enable the Servicer or the Special
Servicer, as the case may be, to carry out its servicing and administrative
duties hereunder; provided, however, that the Trustee shall not be held liable
for any negligence with respect to, or misuse of, any such power of attorney by
the Servicer or the Special Servicer.
Notwithstanding the foregoing, the rights and obligations of
the Servicer and Special Servicer with respect to the Servicing Retained
Mortgage Loan are subject to the rights and obligations of the Retained
Servicing Servicer and Retained Servicing Special Servicer under and pursuant to
the Servicing Retained Servicing Agreement. The Servicer shall use reasonable
best efforts consistent with the Servicing Standard to monitor the servicing,
and the Special Servicer shall use reasonable best efforts consistent with the
Servicing Standard to monitor the Special Servicing, of the Servicing Retained
Mortgage Loan pursuant to the Servicing Retained Servicing Agreement and shall
enforce the rights of the Trust (as holder of the Servicing Retained Mortgage
Loan) under the Servicing Retained Servicing Agreement.
(c) The relationship of the Servicer to the Trustee under this
Agreement is intended by the parties to be that of an independent contractor and
not that of a joint venturer, partner or agent and neither the Servicer nor the
Special Servicer shall have any liability for the action or inaction of any
other party pursuant to this Agreement unless the other party's action or
inaction triggered a duty by such party or such party specifically undertook to
perform such action. Except as set forth in this Agreement, the Trustee shall
not have any liability for the action or inaction of any other party pursuant to
this Agreement.
SECTION 3.02. Collection of Payments.
(a) Each of the Servicer and the Special Servicer shall make
reasonable best efforts consistent with the Servicing Standard to collect all
payments called for under the terms and provisions of the Mortgage Loans and
Pari Passu Loan it is obligated to service hereunder, and shall follow such
collection procedures as are consistent with this Agreement (including, without
limitation, the Servicing Standard). Notwithstanding anything to the contrary
contained in this Agreement, the Servicer or Special Servicer, as the case may
be, may take action to enforce the Trust Fund's right to apply excess cash flow
to principal in accordance with the terms of the Loan Documents. Consistent with
the foregoing, the Servicer or the Special Servicer each may in its discretion
waive any Penalty Charge in connection with any delinquent payment on a Mortgage
Loan it is obligated to service hereunder.
(b) All amounts collected on any Mortgage Loan (or Pari Passu
Loan) in the form of payments from Mortgagors, Insurance and Condemnation
Proceeds or Liquidation Proceeds shall be applied to amounts due and owing under
the related Mortgage Note or Mortgage Notes and Mortgage (including, without
limitation, for principal and accrued and unpaid interest) in accordance with
the express provisions of each related Mortgage Note and the related Mortgage
(or the related mortgage note and Pari Passu Mortgage, in the case of a Pari
Passu Loan) and, in the absence of such express provisions, shall be applied
(after reimbursement to the Servicer, the
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Trustee and/or the Fiscal Agent for any related Advances and interest thereon at
the Reimbursement Rate as provided herein):
first, as a recovery of accrued and unpaid interest on such Mortgage
Loan (or Pari Passu Loan) at the related Mortgage Rate (or the
equivalent, in the case of a Pari Passu Loan) in effect from time to
time to but not including the Due Date in the Due Period of receipt;
second, as a recovery of principal of such Mortgage Loan (or Pari Passu
Loan) to the extent of its entire unpaid principal balance; and
third, in accordance with the Servicing Standard, as a recovery of any
other amounts due and owing on such Mortgage Loan (or Pari Passu Loan),
including, without limitation, Yield Maintenance Charges, Penalty
Charges and Excess Interest. Amounts collected on any REO Loan shall be
deemed to be applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage
Loans (or Pari Passu Loan) and applicable law, the Servicer shall apply all
Insurance and Condemnation Proceeds it receives on a day other than the first
day of a month to amounts due and owing under the related Mortgage Loan as if
such Insurance and Condemnation Proceeds were received on the first day of the
calendar month immediately succeeding the month in which such Insurance and
Condemnation Proceeds were received.
(d) Notwithstanding anything herein to the contrary, the Servicer and the
Special Servicer, as applicable, shall service a Pari Passu Loan for the benefit
of the owner thereof in accordance with this Agreement as if it were a Mortgage
Loan, and in connection therewith, the Servicer and the Special Servicer, as
applicable, shall without limitation (i) receive all payments made with respect
to a Pari Passu Loan and deposit such payments into the Pari Passu Account in
accordance with Section 3.04 of this Agreement or the REO Account in accordance
with Section 3.06 of this Agreement, (ii) subject to the first two provisos to
this subsection (d), withdraw from the Pari Passu Account (no later than 10 days
after the date of deposit therein pursuant to clause (i) above) and pay to the
holder of the Pari Passu Loan, in accordance with the Pari Passu Loan and a Pari
Passu Intercreditor Agreement, such amounts as are deposited therein pursuant to
clause (i) above, (iii) determine, on behalf of the Trustee as holder of the
Related Trust Fund Mortgage Loan, whether the conditions relating to a mandatory
prepayment of a Pari Passu Loan have been satisfied or whether any consent
requested pursuant to Section 2.1 of the Pari Passu Intercreditor Agreement
should be withheld or granted, (iv) exercise, on behalf of the Trustee as the
holder of the Related Trust Fund Mortgage Loan (which is entitled, pursuant to
Section 3.3 of the Pari Passu Intercreditor Agreement, to exercise remedial
rights with respect to the Pari Passu Loan), all remedial rights with respect to
the Pari Passu Loan in accordance with the Pari Passu Intercreditor Agreement
and otherwise in substantially the same way that it would exercise such rights
with respect to the Related Trust Fund Mortgage Loan pursuant to the terms of
this Agreement, (v) subject to the proviso to this subsection (d), make P&I
Advances and Servicing Advances with respect to the Pari Passu Loan and the
related Mortgaged Property in the same manner and on the same terms as are
provided for in Section 4.03 of this Agreement with respect to the Mortgage
Loans (except that references herein to the making of deposits into and
withdrawals from the Certificate Account will, in the case of the Pari Passu
Loan, be deemed
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to refer instead to the making of deposits into and withdrawals from the Pari
Passu Account), (vi) deliver reports and other information with respect to the
Pari Passu Loan that is substantially similar to the information and reports
that are required to be delivered with respect to the Mortgage Loans pursuant to
Section 4.02 of this Agreement and (vii) take such other actions with respect
thereto as shall be required in accordance with the Servicing Standard, this
Agreement and the Pari Passu Intercreditor Agreement; provided, however, that
any withdrawals from the Pari Passu Account pursuant to clause (ii) above shall
be net of any amounts that are payable to the Servicer, the Special Servicer,
the Trustee or the Fiscal Agent in respect of the Pari Passu Loan pursuant to
this Agreement (including without limitation any Servicing Fees, Special
Servicing Fees or other compensation payable to the Servicer or the Special
Servicer in respect of the Pari Passu Loan and reimbursement of any P&I Advances
or Servicing Advances made with respect to the Pari Passu Loan pursuant to
clause (v) above) and other amounts payable in respect of the Pari Passu Loan;
provided, further, that any withdrawals pursuant to clause (ii) above shall be
made only from amounts received with respect to the Pari Passu Loan, and no
amounts received with respect to any Mortgage Loans (including the Related Trust
Fund Mortgage Loan) shall under any circumstance be paid to the holder of the
Pari Passu Loan; provided, further, that the Servicer and Special Servicer shall
be entitled to (i) reimbursement of Advances made with respect to the Pari Passu
Loan, (ii) reimbursement of other expenses (including without limitation
indemnity payments) with respect to the Pari Passu Loan and (iii) the Servicing
Fee and the Special Servicing Fee, as applicable, and any other compensation
payable to the Servicer and Special Servicer with respect to the Pari Passu
Loan, in each case only from amounts received with respect to the Pari Passu
Loan which are on deposit in the Pari Passu Account. The holder of a Pari Passu
Loan shall not have any claim against the assets of the Trust for breach of any
duty by the Servicer or Special Servicer.
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts.
(a) The Servicer shall establish and maintain one or more
accounts (the "Servicing Accounts"), into which all Escrow Payments (other than
with respect to the Servicing Retained Mortgage Loan) shall be deposited and
retained, and shall administer such Servicing Accounts in accordance with the
Mortgage Loan documents. Servicing Accounts shall be Eligible Accounts.
Withdrawals of amounts so deposited from a Servicing Account may be made only
to: (i) effect payment of real estate taxes, assessments, insurance premiums,
ground rents (if applicable), repair, remediation, capital improvements, and
comparable items for which funds have been escrowed in the Servicing Accounts;
(ii) reimburse the Servicer, the Trustee or the Fiscal Agent for any Servicing
Advances; (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest to Mortgagors on balances in the Servicing Account,
if required by applicable law or the terms of the related Mortgage Loan and as
described below or, if not so required, to the Servicer; (v) withdraw amounts
deposited in error or (vi) clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. As part of its
servicing duties, the Servicer shall pay or cause to be paid to the Mortgagors
interest on funds in Servicing Accounts, to the extent required by law or the
terms of the related Mortgage Loan.
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(b) The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage Loans, shall maintain accurate
records with respect to each related Mortgaged Property reflecting the status of
real estate taxes, assessments and other similar items that are or may become a
lien thereon and the status of insurance premiums and any ground rents payable
in respect thereof. The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage Loans, shall obtain, from time to
time, all bills for the payment of such items (including renewal premiums) and
shall effect payment thereof by withdrawal from the related escrow account or
REO Account, as applicable, and if no such escrow account or REO Account is
available, then by the Servicer as Servicing Advances if such amounts would not
constitute Nonrecoverable Advances and otherwise from the REO Account prior to
the applicable penalty or termination date, employing for such purpose Escrow
Payments (which shall be so applied by the Servicer at the written direction of
the Special Servicer in the case of Specially Serviced Mortgage Loans) as
allowed under the terms of the related Mortgage Loan. The Servicer shall service
and administer any reserve accounts (including monitoring, maintaining or
changing the amounts of required escrows) in accordance with the terms of such
Mortgage Loan and the Servicing Standard; provided, however, that in the case of
a Specially Serviced Mortgage Loan, the Servicer shall obtain the written
direction from the Special Servicer prior to changing the amount of escrow
required or making any payments out of the related reserve account. To the
extent that a Mortgage Loan does not require a Mortgagor to escrow for the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, the Special Servicer, in the case of Specially
Serviced Mortgage Loans, and the Servicer, in the case of all other Mortgage
Loans, shall use reasonable best efforts consistent with the Servicing Standard
to require that payments in respect of such items be made by the Mortgagor when
and as required by the related Mortgage Loan Documents.
(c) In accordance with the Servicing Standard and for all
Mortgage Loans (and the Pari Passu Loan), the Servicer shall advance with
respect to each related Mortgaged Property (including any REO Property) all such
funds as are necessary for the purpose of effecting the payment of (i) real
estate taxes, assessments and other similar items that are or may become a lien
thereon, (ii) ground rents (if applicable) and (iii) premiums on Insurance
Policies, in each instance if and to the extent related Escrow Payments
collected from the related Mortgagor are insufficient to pay such item when due
and the related Mortgagor has failed to pay such item on a timely basis;
provided, however, that the particular Servicing Advance would not, if made,
constitute a Nonrecoverable Servicing Advance; provided, further, that with
respect to the payment of taxes and assessments, the Servicer shall not be
required to make such Servicing Advance until the earlier of five Business Days
after the Servicer has received confirmation that such item has not been paid or
the date prior to the date after which any penalty or interest would accrue in
respect of such taxes or assessments. The Special Servicer shall give the
Servicer, the Trustee and the Fiscal Agent not less than five Business Days'
written (facsimile) notice before the date on which the Servicer is requested to
make any Servicing Advance with respect to a given Specially Serviced Mortgage
Loan or REO Property; provided, however, that only two Business Days' written
(facsimile) notice shall be required in respect of Servicing Advances required
to be made on an urgent or emergency basis (which may include, without
limitation, Servicing Advances required to make tax or insurance payments). In
addition, at the time of such notice, the Special Servicer shall provide the
Servicer, the Trustee and the Fiscal Agent
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with such information in its possession as the Servicer, the Trustee or the
Fiscal Agent, as applicable, may reasonably request to enable the Servicer, the
Trustee or the Fiscal Agent, as applicable, to determine whether a requested
Servicing Advance would constitute a Nonrecoverable Advance. All such advances
shall be reimbursable as provided in Section 3.05. Notwithstanding that such
costs may ultimately be recovered from the related Mortgagor or otherwise, no
costs incurred by the Servicer or the Special Servicer in effecting the payment
of real estate taxes, assessments and, if applicable, ground rents on or in
respect of the Mortgaged Properties shall, for purposes hereof, including,
without limitation, calculating monthly distributions to Certificateholders, be
added to the unpaid principal balances of the related Mortgage Loans (or Pari
Passu Loan). The failure by the Servicer to make any required Servicing Advance
as and when due (unless such a Servicing Advance would constitute a
Nonrecoverable Servicing Advance) shall constitute an Event of Default under
Section 7.01(a)(i) and, to the extent the Trustee has actual knowledge that such
Servicing Advance is necessary, the Trustee shall make such Servicing Advance
pursuant to Section 7.05. If the Trustee fails to make such Servicing Advance,
to the extent the Fiscal Agent has knowledge that such Servicing Advance is
necessary, the Fiscal Agent shall make such Servicing Advance pursuant to
Section 7.05.
(d) In connection with its recovery of any Advance out of the
Certificate Account or Pari Passu Account pursuant to Section 3.05(a), each of
the Servicer, the Trustee and the Fiscal Agent, as the case may be, shall be
entitled to receive, first out of default interest and Penalty Charges and then,
out of any amounts then on deposit in the Certificate Account or Pari Passu
Account, as appropriate, interest at the Reimbursement Rate in effect from time
to time, accrued on the amount of such Servicing Advance from the date made to,
but not including, the date of reimbursement. The Servicer shall reimburse
itself, the Trustee or the Fiscal Agent, as the case may be, for any outstanding
Servicing Advance and any accrued interest thereon as soon as practically
possible after funds available for such purpose are deposited in the Certificate
Account or Pari Passu Account.
(e) To the extent an operations and maintenance plan is
required to be established and executed pursuant to the terms of a Mortgage Loan
or Pari Passu Loan, the Servicer shall request from the Mortgagor written
confirmation thereof within a reasonable time after the later of the Closing
Date and the date as of which such plan is required to be established or
completed. To the extent any repairs, capital improvements, actions or
remediations are required to have been taken or completed pursuant to the terms
of the Mortgage Loan or Pari Passu Loan, the Servicer shall request from the
Mortgagor written confirmation of such actions and remediations within a
reasonable time after the later of the Closing Date and the date as of which
such actions or remediations are required to be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(e), the Servicer shall use reasonable
best efforts consistent with the Servicing Standard to determine whether the
related Mortgagor has failed to perform its obligations under the related
Mortgage Loan or Pari Passu Loan and report any such failure to the Special
Servicer within a reasonable time after the later of February 1, 1999 and the
date as of which such actions or remediations are required to be or to have been
taken or completed.
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SECTION 3.04. The Certificate Account, Pari Passu Account and
the Lower-Tier and Upper-Tier Distribution Accounts.
(a) The Servicer, on behalf of the Trustee, in trust for the
benefit of the Certificateholders, shall establish and maintain, or cause to be
established and maintained, a Certificate Account into which the Servicer shall
deposit or cause to be deposited on a daily basis (and in no event later than
the Business Day following receipt of available funds), except as otherwise
specifically provided herein, the following payments and collections received or
made by or on behalf of it subsequent to the Cut-off Date (other than in respect
of principal and interest on the Mortgage Loans due and payable on or before the
Cut-off Date), or payments (other than Principal Prepayments) received by it on
or prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including
Principal Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the
Mortgage Loans (net of the Servicing Fees), including Excess
Interest, Penalty Charges and Yield Maintenance Charges;
(iii) all Insurance and Condemnation Proceeds and
Liquidation Proceeds received in respect of any Mortgage Loan
or REO Property (other than Liquidation Proceeds that are
received in connection with the purchase by the Servicer, the
Special Servicer, the Controlling Class Certificateholders, or
the Holders of the Class LR Certificates of all the Mortgage
Loans and any REO Properties in the Trust Fund and that are to
be deposited in the Lower-Tier Distribution Account pursuant
to Section 9.01);
(iv) any amounts required to be transferred from the
REO Account pursuant to Section 3.16(c);
(v) any amounts required to be deposited by the
Servicer pursuant to Section 3.06 in connection with losses
incurred with respect to Permitted Investments of funds held
in the Certificate Account; and
(vi) any amounts required to be deposited by the
Servicer or the Special Servicer pursuant to Section 3.07(b)
in connection with losses resulting from a deductible clause
in a blanket hazard or master single interest policy.
The Servicer, on behalf of the Trustee, in trust for the
benefit of the holders of the Pari Passu Loan, shall establish and maintain, or
cause to be established and maintained, a Pari Passu Account into which the
Servicer shall deposit or cause to be deposited on a daily basis (and in no
event later than the Business Day following receipt of available funds), except
as otherwise specifically provided herein, the foregoing payments and
collections with respect to the Pari Passu Loan received or made by or on behalf
of it subsequent to the Cut-off Date (other than in respect of principal and
interest on the Pari Passu Loan due and payable on or before the
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Cut-off Date), or payments (other than Principal Prepayments) received by it
with respect to the Pari Passu Loan on or prior to the Cut-off Date but
allocable to a period subsequent thereto.
The foregoing requirements for deposit in the Certificate
Account or Pari Passu Account shall be exclusive, it being understood and agreed
that, without limiting the generality of the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, charges for beneficiary statements
or demands, assumption fees, processing fees, application fees, modification
fees, extension fees or amounts collected for mortgagor checks returned for
insufficient funds need not be deposited by the Servicer in the Certificate
Account or Pari Passu Account. Assumption, extension and modification fees
actually received from Mortgagors on Specially Serviced Mortgage Loans shall be
promptly delivered to the Special Servicer as additional servicing compensation,
but only to the extent the payment of such fees are in accordance with the
second paragraph of Section 3.11(b) and any other terms hereof.
If the Servicer shall deposit in the Certificate Account or
Pari Passu Account any amount not required to be deposited therein, it may at
any time withdraw such amount therefrom, any provision herein to the contrary
notwithstanding. If the Servicer or Special Servicer shall pay any amount to the
holder of a Pari Passu Loan hereunder in the belief or expectation that a
payment had been made or would be received or collected that would constitute
proceeds of the related Mortgaged Property allocable as between such Pari Passu
Loan and the Related Trust Fund Mortgage Loan pursuant to the related Pari Passu
Intercreditor Agreement, and such payment is not received or collected, then the
holder of such Pari Passu Loan shall promptly return such amount to the Servicer
or Special Servicer on demand and the Servicer or Special Servicer, as
appropriate, will diligently seek to obtain the recovery of such amounts from
such holder. If the Servicer or Special Servicer determines that any amount
received or collected thereby must be returned to the related borrower or paid
to any other Person pursuant to any bankruptcy or insolvency law or ruling (or
the equivalent), the Servicer or Special Servicer shall not be obligated to
distribute such amount to the holder of such Pari Passu Loan, and, if so
distributed, such holder shall promptly return such amount to the Servicer or
Special Servicer on demand and the Servicer or Special Servicer, as appropriate,
will diligently seek to obtain the recovery of such amounts from such holder.
Each of the duties and obligations specified in the preceding two sentences
shall survive any termination of this Agreement.
Funds in the Certificate Account or Pari Passu Account may
only be invested in Permitted Investments in accordance with the provisions of
Section 3.06. The Servicer shall give notice to the Trustee, the Special
Servicer and the Depositor of the location of the Certificate Account and Pari
Passu Account as of the Closing Date and of the new location of the Certificate
Account and Pari Passu Account prior to any change thereof.
(b) Upon receipt of any of the amounts enumerated in Section
3.04(a) with respect to any Specially Serviced Mortgage Loan, the Special
Servicer shall remit within one Business Day such amounts to the Servicer for
deposit into the Certificate Account or Pari Passu Account in accordance with
the Section 3.04(a). Any such amounts received by the Special Servicer with
respect to an REO Property shall be deposited by the Special Servicer into the
REO Account and remitted to the Servicer for deposit into the Certificate
Account or Pari Passu Account pursuant to Section 3.16(c). Any items remitted to
the Servicer pursuant to this
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paragraph shall be accompanied by a copy of the invoice or other posting
instructions, if any, received from the related Mortgagor. With respect to any
such amounts paid by check to the order of the Special Servicer, the Special
Servicer shall endorse without recourse or warranty such check to the order of
the Servicer and shall promptly deliver any such check to the Servicer by
Federal Express or such other overnight courier as shall be approved by the
Servicer. Upon proper endorsement and addressing of package containing such
items and delivery to Federal Express or such other nationally recognized
overnight courier service, Special Servicer shall be deemed to have acted in
good faith pursuant to Section 6.03(a).
(c) The Trustee shall establish and maintain the Lower-Tier
Distribution Account and the Upper-Tier Distribution Account in trust for the
benefit of the Certificateholders. Notwithstanding anything herein to the
contrary, the Lower-Tier Distribution Account and the Upper-Tier Distribution
Account may be established as sub-accounts of a single trust account, which
shall be an Eligible Account. To the extent the Trustee is required to make
distributions from the Lower-Tier Distribution Account to the Upper-Tier
Distribution Account in respect of the Uncertificated Lower-Tier Interests or
otherwise, such distributions may be effected through accounting entries on the
books of the Trustee.
The Servicer shall, by 2:00 p.m. Houston time on each Servicer
Remittance Date, deliver to the Trustee for deposit in the Lower-Tier
Distribution Account the following amounts (without duplication):
(i) all amounts constituting the Available
Distribution Amount for the immediately following Distribution
Date;
(ii) any amounts required to be deposited by the
Servicer pursuant to Section 3.06 in connection with losses
incurred with respect to Permitted Investments of funds held
in the Lower-Tier Distribution Account;
(iii) any P&I Advances required to be made by the
Servicer in accordance with Section 4.03;
(iv) any Liquidation Proceeds paid by the Controlling
Class Certificateholders, the Servicer, the Special Servicer,
or the Holders of the Class LR Certificates in connection with
the purchase of all of the Mortgage Loans and any REO
Properties in the Trust Fund pursuant to Section 3.18(b) or
Section 9.01 (exclusive of that portion thereof required to be
deposited in the Certificate Account pursuant to Section
9.01);
(v) any Yield Maintenance Charges; and
(vi) any other amounts required to be so delivered
for deposit in the Lower-Tier Distribution Account pursuant to
any provision of this Agreement.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts received by the Trustee that are
required by the terms of this Agreement to
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be deposited therein. The Trustee shall deposit in the Lower-Tier Distribution
Account any P&I Advances required to be made by it or the Fiscal Agent in
accordance with Section 7.05.
Immediately after the deposit of all funds in the Lower-Tier
Distribution Account and prior to the close of business on such Servicer
Remittance Date, the Trustee shall deposit in the Upper-Tier Distribution
Account an aggregate amount of immediately available funds equal to the
Lower-Tier Distribution Amount and the amount of any Yield Maintenance Charges
for such Distribution Date allocated in payment of the Uncertificated Lower-Tier
Interests as specified in Sections 4.01(b) and 4.01(d), respectively.
Pursuant to Section 3.06, the Servicer shall deliver to the
Trustee for deposit in the Upper-Tier Distribution Account any amounts required
to be deposited therein in connection with losses incurred with respect to
Permitted Investments of funds held in the Upper-Tier Distribution Account.
The Trustee shall give notice to the Servicer and the
Depositor of the location of the Upper-Tier Distribution Account and the
Lower-Tier Distribution Account and of the new location of the Distribution
Accounts prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Certificate
Account, Pari Passu Account and the Distribution Accounts.
(a) The Servicer may, from time to time, make withdrawals from
the Certificate Account (and insofar as such amounts relate to the Pari Passu
Loan, from the Pari Passu Account) for any of the following purposes:
(i) to deposit in the Lower-Tier Distribution Account
the amounts that may be applied to make P&I Advances pursuant
to Section 4.03(a);
(ii) to pay to itself unpaid Servicing Fees and to
pay to the Special Servicer unpaid Special Servicing Fees;
(iii) to pay the Special Servicer Liquidation Fees
and Workout Fees in respect of each Mortgage Loan or Pari
Passu Loan, Specially Serviced Mortgage Loan and REO Loan, as
applicable (other than the Servicing Retained Mortgage Loan
unless the Servicer has succeeded to the obligations of the
Retained Servicing Servicer with respect to such Mortgage
Loan), the Servicer's or Special Servicer's, as applicable,
rights to payment pursuant to this clause (iii) with respect
to any Mortgage Loan, Pari Passu Loan, Specially Serviced
Mortgage Loan or REO Loan being limited to amounts received on
or in respect of such Mortgage Loan, Specially Serviced
Mortgage Loan, Pari Passu Loan or REO Loan;
(iv) to reimburse itself, the Trustee or the Fiscal
Agent, as applicable (in reverse of such order with respect to
any Mortgage Loan or Pari Passu Loan), for unreimbursed P&I
Advances (including with respect to the Servicing Retained
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Mortgage Loan if the Servicer or Special Servicer has succeeded to the Servicing
or Special Servicing obligations with respect thereto), the Servicer's, the
Trustee's or the Fiscal Agent's right to reimbursement pursuant to this clause
(iv) being limited to amounts received which represent Late Collections of
interest (net of the related Servicing Fees) on and principal of the particular
Mortgage Loans, Pari Passu Loan or REO Loans with respect to which such P&I
Advances were made;
(v) to reimburse itself, the Trustee or the Fiscal Agent, as
applicable (in reverse of such order with respect to any Mortgage Loan or Pari
Passu Loan), for unreimbursed Servicing Advances (including with respect to the
Servicing Retained Mortgage Loan if the Servicer or Special Servicer has
succeeded to the Servicing or Special Servicing obligations with respect
thereto), the Servicer's, the Trustee's or the Fiscal Agent's respective rights
to reimbursement pursuant to this clause (v) with respect to any Mortgage Loan,
Pari Passu Loan or REO Property being limited to, as applicable, related
payments, Liquidation Proceeds, Insurance and Condemnation Proceeds and REO
Revenues;
(vi) to reimburse itself, the Trustee or the Fiscal Agent, as
applicable (in reverse of such order with respect to any Mortgage Loan) for
Nonrecoverable Advances or, in the case of the Servicing Retained Mortgage Loan
to reimburse the Retained Servicing Servicer, the Retained Servicing Trustee or
the Retained Servicing Fiscal Agent, as applicable (in reverse of such order
with respect to the Servicing Retained Mortgage Loan) for Servicing Retained
Nonrecoverable Servicing Advances, in each case out of general collections on
the Mortgage Loans and REO Properties;
(vii) at such time as it reimburses itself, the Trustee or the
Fiscal Agent, as applicable (in reverse of such order with respect to any
Mortgage Loan), for (a) any unreimbursed P&I Advance pursuant to clause (iii)
above, to pay itself, the Trustee or the Fiscal Agent, as applicable, any
interest accrued and payable thereon in accordance with Section 4.03(d) and
3.11(c), (b) any unreimbursed Servicing Advances pursuant to clause (iv) above,
to pay itself, the Trustee or the Fiscal Agent, as the case may be, any interest
accrued and payable thereon in accordance with Section 3.03(d) or (c) any
Nonrecoverable Advances pursuant to clause (v) above, to pay itself, the Trustee
or the Fiscal Agent (or, in the case of the Servicing Retained Mortgage Loan,
the Retained Servicing Servicer, the Retained Servicing Trustee or the Retained
Servicing Fiscal Agent), as the case may be, any interest accrued and payable
thereon; provided that, in each such case, such reimbursements will be made from
default interest and penalty charges collected during the related Due Period and
thereafter (if such amounts are insufficient therefor) from other amounts on
deposit on the Certificate Account;
(viii) to reimburse itself, the Special Servicer, the Depositor or the
Trustee, as the case may be, for any unreimbursed expenses reasonably incurred
by such Person in respect of any Breach or Defect giving rise to a repurchase
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obligation of the Mortgage Loan Seller under Section 3.3 of the Mortgage Loan
Purchase and Sale Agreement, including, without limitation, any expenses arising
out of the enforcement of the repurchase obligation, each such Person's right to
reimbursement pursuant to this clause (viii) with respect to any Mortgage Loan
being limited to that portion of the Purchase Price paid for such Mortgage Loan
that represents such expense in accordance with clause (iv) of the definition of
Purchase Price;
(ix) in accordance with Section 2.03(d), to reimburse itself
or the Trustee, as the case may be, out of general collections on the Mortgage
Loans and REO Properties for any unreimbursed expense reasonably incurred by
such Person in connection with the enforcement of the Mortgage Loan Seller's
obligations under Section 3.3 of the Mortgage Loan Purchase and Sale Agreement,
but only to the extent that such expenses are not reimbursable pursuant to
clause (viii) above or otherwise;
(x) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) out of general collections on the Mortgage Loans and
REO Properties;
(xi) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with respect
to the related Mortgage Loan have been paid and are not needed to pay interest
on Advances in accordance with Section 3.11(c), (a) interest and investment
income earned in respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the extent of
the Net Investment Earnings with respect to the Certificate Account for any
period from any Distribution Date to the immediately succeeding Servicer
Remittance Date) (b) late charges and (c) Penalty Charges (other than late
charges) on Mortgage Loans (other than Specially Serviced Mortgage Loans and the
Servicing Retained Mortgage Loan); and to pay the Special Servicer, as
additional servicing compensation in accordance with the second paragraph of
Section 3.11(b), late charges on Specially Serviced Mortgage Loans and Penalty
Charges (other than late charges) on Specially Serviced Mortgage Loans (other
than the Servicing Retained Mortgage Loan) (but only to the extent collected
from the related Mortgagor and to the extent that all amounts then due and
payable with respect to the related Specially Serviced Mortgage Loan have been
paid and are not needed to pay interest on Advances in accordance with Section
3.11(c));
(xii) to recoup any amounts deposited in the Certificate
Account in error;
(xiii) to pay itself, the Special Servicer, the Depositor, the
Retained Servicing Servicer, the Retained Servicing Special Servicer or any of
their respective directors, managers, members, officers, employees and agents,
as the
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case may be, any amounts payable to any such Person pursuant to Sections 6.03(a)
or 6.03(b) or to the Trustee pursuant to Section 8.05;
(xiv) to pay for (a) the cost of the Opinions of Counsel and
any costs not paid by the related Mortgagor contemplated by Sections 3.20(a) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Sections 11.01(a) or 11.01(c) in connection
with an amendment to this Agreement requested by the Trustee or the Servicer,
which amendment is in furtherance of the rights and interests of
Certificateholders and (c) the cost of obtaining the REO Extension contemplated
by Section 3.16(a);
(xv) to pay out of general collections on the Mortgage Loans
and REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC or either of their assets or
transactions, together with all incidental costs and expenses, to the extent
that none of the Servicer, the Special Servicer, the Trustee or the Fiscal Agent
is liable therefor pursuant to Section 10.01(g);
(xvi) to reimburse the Servicer out of general collections on
the Mortgage Loans and REO Properties for expenses incurred by and reimbursable
to it by the Trust Fund pursuant to Section 10.01(c);
(xvii) to pay itself, the Special Servicer, or the Mortgage
Loan Seller, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased by such Person pursuant to this Agreement, all amounts
received thereon subsequent to the date of purchase relating to periods after
the date of purchase;
(xviii) to remit to the Trustee for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest Reserve
Account pursuant to Section 3.25;
(xix) to remit to the holder of a Pari Passu Loan the amounts
that are required to be paid to it pursuant to the terms of such Pari Passu
Loan, the respective Pari Passu Intercreditor Agreement and Section 3.02(d), and
to pay itself or the Special Servicer any amount permitted to be paid to the
Servicer or Special Servicer pursuant to Section 3.02(d);
(xx) deposit in the Lower-Tier Distribution Account the amount
required to be deposited therein pursuant to Section 4.01(a); and
(xxi) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
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The Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, for
the purpose of justifying any withdrawal from the Certificate Account.
(b) The Trustee, may, from time to time, make withdrawals from
the Lower-Tier Distribution Account for any of the following purposes:
(i) to make deposits of the Lower-Tier Distribution
Amount pursuant to Section 4.01(b) and the amount of any Yield
Maintenance Charges distributable pursuant to Section 4.01(d)
in the Upper-Tier Distribution Account and to make
distributions on the Class LR Certificates pursuant to section
4.01(b);
(ii) to pay the Servicer, as additional servicing
compensation in accordance with the second paragraph of
Section 3.11(a), interest and investment income earned in
respect of amounts relating to the Trust Fund held in the
Lower-Tier Distribution Account as provided in Section 3.06(b)
(but only to the extent of the Net Investment Earnings with
respect to the Lower-Tier Distribution Account for any period
from any Distribution Date to the immediately succeeding
Servicer Remittance Date);
(iii) [Intentionally Omitted.]
(iv) to pay to the Trustee, the Fiscal Agent or any
of their directors, officers, employees and agents, as the
case may be, any amounts payable or reimbursable to any such
Person pursuant to Section 8.05(b); (v) to clear and terminate
the Lower-Tier Distribution Account at the termination of this
Agreement pursuant to Section 9.01.
(c) The Trustee may make withdrawals from the Upper-Tier
Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders
(other than Holders of the Class LR Certificates) on each
Distribution Date pursuant to Section 4.01 or 9.01, as
applicable;
(ii) to pay the Servicer, as additional servicing
compensation in accordance with the second paragraph of
Section 3.11(a), interest and investment income earned in
respect of amounts held in the Upper-Tier Distribution Account
as provided in Section 3.06(b) (but only to the extent of the
Net Investment Earnings with respect to the Upper-Tier
Distribution Account for any period from any Distribution Date
to the immediately succeeding Servicer Remittance Date); and
(iii) to clear and terminate the Upper-Tier
Distribution Account at the termination of this Agreement
pursuant to Section 9.01.
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(d) Notwithstanding anything herein to the contrary, with
respect to any Mortgage Loan, if amounts on deposit in the Certificate Account
are not sufficient to reimburse the full amount of Advances listed in Sections
3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid first to the
Fiscal Agent, second, to the Trustee and third to the Servicer.
SECTION 3.06. Investment of Funds in the Certificate Account,
Pari Passu Account, the Interest Reserve Accounts or REO Accounts.
(a) The Servicer may only direct any depository institution
maintaining the Certificate Account, the Pari Passu Account, the Interest
Reserve Account and the Special Servicer may direct any depository institution
maintaining an REO Account (each, for purposes of this Section 3.06, an
"Investment Account") to invest, or if it is such depository institution, may
itself invest, the funds held therein only in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
no later than the Business Day immediately preceding the next succeeding date on
which such funds are required to be withdrawn from such account pursuant to this
Agreement. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such). The Servicer (in the
case of the Certificate Account, Pari Passu Account or Interest Reserve Account)
or the Special Servicer (in the case an REO Account), on behalf of the Trustee
(or the holder of the related Pari Passu Loan), shall maintain continuous
possession of any Permitted Investment of amounts in the Certificate Account,
Pari Passu Account, Interest Reserve Account or REO Account that is either (i) a
"security," as such term is defined in the UCC or (ii) other property in which a
secured party may perfect its security interest by possession under the UCC or
any other applicable law. In the event amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the Servicer or, in the case of an REO Account, the Special Servicer shall:
(i) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last
day such Permitted Investment may otherwise mature hereunder
in an amount equal to the lesser of (a) all amounts then
payable thereunder and (b) the amount required to be withdrawn
on such date; and
(ii) demand payment of all amounts due thereunder
promptly upon determination by the Servicer, the Special
Servicer or the Trustee, as the case may be, that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited
in the Certificate Account, Pari Passu Account or Interest Reserve Account, to
the extent of the Net Investment Earnings, if any, with respect to such account
for each period from any Distribution Date to the immediately succeeding
Servicer Remittance Date, shall be for the sole and exclusive benefit of the
Servicer and shall be subject to its withdrawal, or withdrawal at its direction,
in accordance with Section 3.05(a), 3.05(b) or 3.05(c), as the case may be.
Interest and investment income realized on funds deposited in the REO Account,
to the extent of the Net Investment Earnings, if
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any, with respect to such account for each period from any Distribution Date to
the immediately succeeding Servicer Remittance Date, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(c). In the event that any loss shall be incurred
in respect of any Permitted Investment on deposit in the Certificate Account,
Pari Passu Account, Interest Reserve Account or an REO Account, the Servicer or
the Special Servicer (in the case of any REO Account) shall deposit therein, no
later than the Servicer Remittance Date, without right of reimbursement, the
amount of the Net Investment Loss, if any, with respect to such account for the
period from the immediately preceding Distribution Date to such Servicer
Remittance Date. The Servicer and the Special Servicer shall have no liability
for the bankruptcy or insolvency of any institution holding an account or
Permitted Investment, if such account or the account in which such Permitted
Investment is held, was, at the time of such investment, an Eligible Account.
(c) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to a majority of the Voting Rights
allocated to any Class shall, take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Servicer shall use its reasonable best efforts
consistent with the Servicing Standard to cause the Mortgagor to maintain, to
the extent required by the terms of the related Mortgage Note, all Insurance
Policy coverage required under the related Mortgage (to the extent that the
Trustee has an insurable interest and such Insurance Policy coverage is
available at commercially reasonable rates), or, if the related Mortgagor does
not maintain such coverage, the Servicer shall itself maintain such coverage
with Qualified Insurers; provided, however, that if the Servicer obtains such
insurance, the related Insurance Policy shall include a replacement cost
endorsement providing for no deduction for depreciation but in any event in an
amount sufficient to avoid the application of any co-insurance clause unless
otherwise permitted in the related Mortgage Loan documents; provided further,
that if any of the related Loan Documents permits the holder thereof to dictate
to the Mortgagor the Insurance Policy coverage to be maintained on such
Mortgaged Property, the Servicer shall impose such insurance requirements as are
consistent with the Servicing Standard. Subject to Section 3.17(a), the Special
Servicer shall maintain for each REO Property no less Insurance Policy coverage
than was previously required of the Mortgagor under the related Mortgage Loan
with Qualified Insurers.
All such Insurance Policies shall (i) contain a "standard"
mortgagee clause, with loss payable to the Servicer on behalf of the Trustee (in
the case of insurance maintained in respect of the Mortgage Loans other than REO
Properties), (ii) be in the name of the Special Servicer (in the case of
insurance maintained in respect of REO Properties) on behalf of the Trustee,
(iii) include coverage in an amount not less than the lesser of the full
replacement cost of the REO Property without reduction for depreciation or the
outstanding principal balance owing on the related REO Loan but in any event in
an amount sufficient to avoid the application
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of any co-insurance clause unless otherwise permitted in the related Mortgage
Loan documents and (iv) be issued by a Qualified Insurer authorized under
applicable law to issue such Insurance Policies.
With respect to any other Mortgage Loan that requires or
permits the related lender to require that earthquake insurance be maintained,
the Directing Certificateholder may request that earthquake insurance be secured
for one or more Mortgaged Properties and, upon such request, the Servicer or
Special Servicer, as applicable, shall use its reasonable best efforts
consistent with the Servicing Standard to enforce such obligations consistent
with the terms of the related Loan Documents, provided, however, that the
Directing Certificateholder may not make such request with respect to Mortgaged
Properties with respect to which earthquake insurance was not required to be
maintained at origination unless there is a material adverse change in the facts
and circumstances relating to the Mortgaged Property, including a decline in the
net operating income or appraised value of the Mortgaged Property by 10%.
With respect to any Mortgage Loan (i) that does not require or
permit the related lender to require that earthquake insurance be maintained or
(ii) that the Servicer or Special Servicer, as applicable, has been unable to
enforce the provisions of the preceding sentence, the Directing
Certificateholder may request that earthquake insurance be secured by the
Servicer or Special Servicer, as applicable, at the expense of the Directing
Certificateholder.
Any amounts collected by the Servicer or the Special Servicer
under any such Insurance Policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case in accordance with
the Servicing Standard and the provisions of the related Mortgage Loan) shall be
deposited in the Certificate Account or Pari Passu Account, as appropriate,
subject to withdrawal pursuant to Section 3.05(a).
Any costs incurred by the Servicer in maintaining any such
Insurance Policies (other than in respect of REO Properties) (i) shall be
advanced by the Servicer (or, if required by Section 3.03(c) the Trustee or the
Fiscal Agent, as applicable) as a Servicing Advance (unless determined to be a
Nonrecoverable Advance) if the Mortgagor defaults on its obligation to do so,
and will be charged to the related Mortgagor, and (ii) shall not, for purposes
thereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan or Pari Passu Loan, notwithstanding that the terms of such
Mortgage Loan or Pari Passu Loan so permit. Any cost incurred by the Special
Servicer in maintaining any such Insurance Policies with respect to REO
Properties shall be an expense of the Trust payable out of the related REO
Account pursuant to Section 3.16(c) or, if the amount on deposit therein is
insufficient therefor, advanced by the Servicer (or, if required by Section
3.03(c), the Trustee or the Fiscal Agent, as applicable) as a Servicing Advance.
(b) If the Servicer or the Special Servicer shall obtain and maintain a blanket
Insurance Policy with a Qualified Insurer insuring against fire and hazard
losses on all of the Mortgage Loans, Pari Passu Loan or REO Properties, as the
case may be, required to be serviced and administered hereunder, then, to the
extent such Insurance Policy provides protection equivalent to the individual
policies otherwise required, the Servicer or the Special Servicer shall
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conclusively be deemed to have satisfied its obligation to cause fire and hazard
insurance to be maintained on the related Mortgaged Properties or REO
Properties. Such Insurance Policy may contain a deductible clause, in which case
the Servicer or the Special Servicer shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property a fire and hazard
Insurance Policy complying with the requirements of Section 3.07(a), and there
shall have been one or more losses which would have been covered by such
Insurance Policy, promptly deposit into the Certificate Account from its own
funds the amount of such loss or losses that would have been covered under the
individual policy but are not covered under the blanket Insurance Policy because
of such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan or Pari Passu
Loan, or in the absence of such deductible limitation, the deductible limitation
which is consistent with the Servicing Standard. In connection with its
activities as administrator and servicer of the Mortgage Loans and Pari Passu
Loan, the Servicer agrees to prepare and present, on behalf of itself, the
Trustee and Certificateholders (or the holder of such Pari Passu Loan), claims
under any such blanket Insurance Policy in a timely fashion in accordance with
the terms of such policy. The Special Servicer, to the extent consistent with
the Servicing Standard, may maintain, earthquake insurance on REO Properties,
provided coverage is available at commercially reasonable rates, the cost of
which shall be a Servicing Advance made by the Servicer.
If the Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a blanket insurance policy
with a Qualified Insurer naming the Servicer or the Special Servicer on behalf
of the Trustee (or the holder of such Pari Passu Loan) as the loss payee, then
to the extent such Insurance Policy provides protection equivalent to the
individual policies otherwise required, the Servicer or the Special Servicer
shall conclusively be deemed to have satisfied its obligation to cause such
insurance to be maintained on the related Mortgage Properties and REO
Properties. In the event the Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by such blanket insurance
policy, the incremental costs of such insurance applicable to such Mortgaged
Property or REO Property (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgaged Property or REO Property is
covered thereby) shall be paid by the Servicer (or, if required by Section
3.03(c), the Trustee or the Fiscal Agent, as applicable) as a Servicing Advance.
Such blanket insurance policy may contain a deductible clause, in which case the
Servicer or the Special Servicer shall, in the event that there shall not have
been maintained on the related Mortgaged Property or REO Property a policy
otherwise complying with the provisions of Section 3.07(a), and there shall have
been one or more losses which would have been covered by such policy had it been
maintained, deposit into the Certificate Account or Pari Passu Account, as
appropriate, from its own funds the amount not otherwise payable under the
blanket policy because of such deductible clause, to the extent that any such
deductible exceeds the deductible limitation that pertained to the related
Mortgage Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard.
(c) Each of the Servicer and the Special Servicer shall obtain
and maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
Insurance Policy with a Qualified Insurer covering the
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Servicer's and the Special Servicer's, as applicable, officers and employees and
other persons acting on behalf of the Servicer and the Special Servicer in
connection with its activities under this Agreement with a deductible clause
that in no event exceeds the greater of (i) $100,000 or (ii) 5% of the face
amount of the fidelity bond or errors and omissions policy. The Servicer or the
Special Servicer, as applicable, shall cause the Trustee, on behalf of the
Trust, to be named as a loss payee on each such fidelity bond and errors and
omissions policy. Notwithstanding the foregoing, (a) coverage in the form
reflected on the attached Exhibit K shall be deemed to satisfy the Servicer's
and the Special Servicer's obligations with respect to the maintenance of errors
and omissions insurance, and (b) so long as the long term debt or the deposit
obligations or claims-paying ability of the Servicer (or its immediate or remote
parent) is rated at least "A" by Moody's and "A" by S&P, the Servicer (or the
Servicer's immediate or remote parent) shall be allowed to provide
self-insurance with respect to a fidelity bond; provided, however, that if such
self-insurance is provided by the Servicer's immediate or remote parent, the
Servicer shall deliver to each Rating Agency a copy of the agreement pursuant to
which such parent is obligated to insure the Servicer with respect to a fidelity
bond. The amount of coverage shall be at least equal to the coverage that would
be required by FNMA or FHLMC, whichever is greater, with respect to the Servicer
or the Special Servicer if the Servicer or the Special Servicer, as applicable,
were servicing and administering the Mortgage Loans or Specially Serviced
Mortgage Loans, as applicable, for FNMA or FHLMC. Coverage of the Servicer or
the Special Servicer under a policy or bond obtained by an Affiliate of the
Servicer or the Special Servicer and providing the coverage required by this
Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The
Special Servicer and the Servicer will promptly report in writing to the Trustee
any material changes that may occur in their respective fidelity bonds, if any,
and/or their respective errors and omissions Insurance Policies, as the case may
be, and will furnish to the Trustee copies of all binders and policies or
certificates evidencing that such bonds, if any, and insurance policies are in
full force and effect.
(d) During all such times as any Mortgaged Property shall be
in a federally designated special flood hazard area (and such flood insurance
has been made available), the Servicer will use its reasonable best efforts
consistent with the Servicing Standard to cause the related Mortgagor (in
accordance with applicable law and the terms of the Mortgage Loan documents) to
maintain, and, if the related Mortgagor shall default in its obligation to so
maintain, shall itself maintain to the extent available at commercially
reasonable rates (as determined by the Servicer in accordance with the Servicing
Standard), flood insurance in respect thereof, but only to the extent the
related Mortgage Loan permits the mortgagee to require such coverage and the
maintenance of such coverage is consistent with the Servicing Standard. Such
flood insurance shall be in an amount not less than the lesser of (i) the unpaid
principal balance of the related Mortgage Loan, and (ii) the maximum amount of
insurance which is available under the Flood Disaster Protection Act of 1973, as
amended. If the cost of any insurance described above is not borne by the
Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs,
subject to Section 3.03(c).
(e) During all such times as any REO Property shall be located
in a federally designated special flood hazard area, the Special Servicer will
cause to be maintained, to the extent available at commercially reasonable rates
(as determined by the Special Servicer in
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accordance with the Servicing Standard), a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
in an amount representing coverage not less than the maximum amount of insurance
which is available under the Flood Disaster Protection Act of 1973, as amended.
The cost of any such flood insurance with respect to an REO Property shall be an
expense of the Trust payable out of the related REO Account pursuant to Section
3.16(c) or, if the amount on deposit therein is insufficient therefor, paid by
the Servicer or the Trustee or Fiscal Agent, as applicable, as a Servicing
Advance.
SECTION 3.08. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) As to each Mortgage Loan or Specially Serviced Mortgage
Loan which contains a provision in the nature of a "due-on-sale" clause, which
by its terms:
(i) provides that such Mortgage Loan or 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 Mortgage Loan or Specially
Serviced Mortgage Loan may not be assumed without the consent
of the mortgagee in connection with any such sale or other
transfer,
for so long as such Mortgage Loan is included in the Trust Fund, the Servicer,
and, in the case of any Specially Serviced Mortgage Loan, the Special Servicer,
in each case on behalf of the Trustee as the mortgagee of record, shall exercise
(or waive its right to exercise) any right it may have with respect, as
applicable, to such Mortgage Loan or Specially Serviced Mortgage Loan (x) to
accelerate the payments thereon or (y) to withhold its consent to any such sale
or other transfer, in a manner consistent with the Servicing Standard.
The Servicer shall notify the Special Servicer upon its
receipt of any request to permit the proposed assumption of any non-Specially
Serviced Mortgage Loan and shall provide the Directing Certificateholder with
notice of the proposed assumption five business days before it consents to any
assumption, subject to Section 3.08(e). The Servicer in its reasonable
discretion and in accordance with the Servicing Standard may consider the advice
and comments of the Special Servicer, if any, in deciding whether or not to
consent to the proposed assumption. The Servicer will have full discretion,
power and authority to determine whether or not to consent to such proposed
assumption. The Special Servicer shall not be entitled to receive any fee or
compensation for its consultation or advice regarding the assumption of any
non-Specially Serviced Mortgage Loan.
(b) As to each Mortgage Loan or Specially Serviced Mortgage
Loan which contains a provision in the nature of a "due-on-encumbrance" clause,
which by its terms:
(i) provides that such Mortgage Loan or Specially
Serviced Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the
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creation of any additional lien or other encumbrance on the
related Mortgaged Property or
(ii) requires the consent of the mortgagee to the
creation of any such additional lien or other encumbrance on
the related Mortgaged Property,
for so long as such Mortgage Loan or Specially Serviced Mortgage Loan is
included in the Trust Fund, the Servicer, as to the Mortgage Loans that are not
Specially Serviced Mortgage Loans, or the Special Servicer, as to Specially
Serviced Mortgage Loans, on behalf of the Trustee as the mortgagee of record,
shall exercise (or waive its right to exercise) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon or (y) to
withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard.
The Servicer shall notify the Special Servicer and Directing
Certificateholder of any request for consent to the creation of any additional
lien or other encumbrance on any non-Specially Serviced Mortgage Loan. The
Servicer shall not provide such consent unless it receives written approval from
the Special Servicer; provided however, that the Special Servicer shall be
deemed to have given the consent required by the preceding part of this sentence
if it fails to respond to such notification within 10 business days after
receipt, and provided further, the Servicer receives written confirmation of
each of the Rating Agencies as provided in Section 3.08(e).
(c) Nothing in this Section 3.08 shall constitute a waiver of
the Trustee's right, as the mortgagee of record, to receive notice of any
assumption of a Mortgage Loan, any sale or other transfer of the related
Mortgaged Property or the creation of any additional lien or other encumbrance
with respect to such Mortgaged Property.
(d) Except as otherwise permitted by Section 3.20, neither the
Servicer nor the Special Servicer shall agree to modify, waive or amend any term
of any Mortgage Loan in connection with the taking of, or the failure to take,
any action pursuant to this Section 3.08, other than the identity, form or
structure of the borrower pursuant to an assumption agreement.
(e) Notwithstanding anything to the contrary in this Section
3.08, neither the Servicer nor the Special Servicer shall waive any rights under
a "due-on-encumbrance" clause or, with respect to any Mortgage Loan whose
principal balance is 2% or more of the outstanding pool balance (for such
purposes, treating as a single Mortgage Loan all Mortgage Loans made to the same
Borrower and all Affiliates of any Borrower) under any "due-on-sale" clause with
respect to any Mortgage Loan, unless it obtains from each Rating Agency a
written confirmation that such waiver would not cause a downgrading,
qualification or withdrawal of the rating then assigned to any of the
Certificates; provided, however, that so long as all Holders of each Class of
Certificates, the ratings of which would otherwise be downgraded, qualified or
withdrawn, consent to such waiver in a writing which acknowledges that such
downgrading, qualification or withdrawal can occur, such Rating Agency
confirmation will not be required. Each Rating Agency and the Directing
Certificateholder shall nevertheless, be provided with copies of all
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documentation relating to any waiver by the Servicer or the Special Servicer of
rights under any "due-on-encumbrance" or "due-on-sale" clause with respect to
any Mortgage Loan.
(f) For each Mortgage Loan or Specially Serviced Mortgage Loan
whose principal balance is 2% or more of the outstanding pool balance (for such
purposes, treating as a single Mortgage Loan all Mortgage Loans made to the same
Borrower and all Affiliates of any Borrower) that contains a provision which
allows the borrower to obtain additional unsecured debt with the consent of the
mortgagee of record, the Servicer, as to the Mortgage Loans that are not
Specially Serviced Mortgage Loans, or the Special Servicer, as to Specially
Serviced Mortgage Loans, on behalf of the Trustee, as the mortgagee of record,
may consent to the creation of additional unsecured debt, provided that the
Servicer or Special Servicer, as applicable, has provided notice to each of the
Rating Agencies of the request to incur additional unsecured debt and has
received written confirmation from each of the Rating Agencies that its consent
to such request will not cause a downgrading, qualification or withdrawal of the
rating then assigned to any of the Certificates.
(g) Notwithstanding any other provisions of this Section 3.08,
the Servicer may grant (with respect to a Mortgage Loan) and the Special
Servicer may grant (with respect to any Specially Serviced Mortgage Loan or REO
Property), without any Rating Agency confirmation as provided in clause (e)
above or in the case of a Mortgage Loan without Special Servicer approval, a
request for consent to subject the related Mortgaged Property or REO Property to
an easement or right-of-way for utilities, access, parking, public improvements
or another purpose, and may consent to subordination of the related Mortgage
Loan to such easement or right-of-way provided the Servicer or Special Servicer,
as applicable, shall have determined in accordance with the Servicing Standard
that such easement or right-of-way shall not materially interfere with the
then-current use of the related Mortgaged Property or REO Property, or the
security intended to be provided by such Mortgage, the related Mortgagor's
ability to repay the Mortgage Loan, or materially or adversely affect the value
of such Mortgaged Property or REO Property.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to (i) subsections (b)
through (d) of this Section 3.09 and (ii) the approval of the Directing
Certificateholder pursuant to Section 3.21(e), exercise reasonable best efforts
consistent with the Servicing Standard, to foreclose upon or otherwise
comparably convert (which may include an REO Acquisition) the ownership of
property securing such Mortgage Loans, as come into and continue in default as
to which no satisfactory arrangements can be made for collection of delinquent
payments, and which are not released from the Trust Fund pursuant to any other
provision hereof. The foregoing is subject to the provision that, in any case in
which a Mortgaged Property shall have suffered damage from an Uninsured Cause,
the Servicer shall not be required to make a Servicing Advance and expend funds
toward the restoration of such property unless the Special Servicer has
determined in its reasonable discretion that such restoration will increase the
net proceeds of liquidation of such Mortgaged Property to Certificateholders
after reimbursement to the Servicer for such Servicing Advance, and the Servicer
has determined that such Servicing Advance together with accrued and unpaid
interest thereon will be recoverable by the Servicer out of the proceeds of
liquidation of such Mortgaged Property, as contemplated in Section 3.05(a)(iv).
To the extent that the
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Servicer (or, if required pursuant to Section 3.03(c), the Trustee or Fiscal
Agent) has determined that the same would not constitute a Nonrecoverable
Advance and has made such Advance, the Special Servicer shall be responsible for
distributing such Advance to cover all other costs and expenses incurred by it
in any such proceedings. To the extent that the Servicer or Special Servicer is
a bidder at any foreclosure proceeding, nothing contained in this Section 3.09
shall be construed so as to require the Servicer or the Special Servicer, on
behalf of the Trust, to make a bid on any Mortgaged Property at a foreclosure
sale or similar proceeding that is in excess of the fair market value of such
property, as determined by the Servicer or the Special Servicer in its
reasonable and good faith judgment taking into account the factors described in
Section 3.18(d) and the results of any Appraisal obtained pursuant to the
following sentence, all such bids to be made in a manner consistent with the
Servicing Standard. If and when the Special Servicer or the Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Defaulted Mortgage Loan, whether for purposes of
bidding at foreclosure or otherwise, the Special Servicer or the Servicer, as
the case may be, is authorized to have an Appraisal performed with respect to
such property by an Independent Appraiser the cost of which shall be paid by the
Servicer (or, if required by Section 3.03(c), the Trustee or the Fiscal Agent,
as applicable) as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real
property (within the meaning of Section 856(e)(1) of the Code)
so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an
Opinion of Counsel (the cost of which shall be a Servicing
Advance) to the effect that the holding of such personal
property by the Trust Fund will not cause the imposition of a
tax on the Lower-Tier REMIC or the Upper-Tier REMIC under the
REMIC Provisions or cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time
that any Uncertificated Lower-Tier Interest or Certificate is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section
3.09, neither the Special Servicer nor the Servicer shall, on behalf of the
Trustee, obtain title to a Mortgaged Property in lieu of foreclosure or
otherwise, or take any other action with respect to any Mortgaged Property, if,
as a result of any such action, the Trustee, on behalf of the
Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standard, based on an Environmental Assessment of such Mortgaged
Property performed by an Independent Person who regularly conducts Environmental
Assessments, that:
(i) the Mortgaged Property is in material compliance
with applicable environmental laws and regulations or, if not,
that taking such actions as are necessary to bring the
Mortgaged Property in compliance therewith is reasonably
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likely to produce a greater recovery on a present value basis
than not taking such actions; and
(ii) there are no circumstances or conditions present
at the Mortgaged Property relating to the use, management or
disposal of Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation
could be required under any applicable environmental laws and
regulations or, if such circumstances or conditions are
present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is
reasonably likely to produce a greater recovery on a present
value basis than not taking such actions.
The cost of any such Environmental Assessment shall be paid by
the Servicer or the Trustee or Fiscal Agent, as applicable, as a Servicing
Advance as the cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding sentence may be
withdrawn from the Certificate Account at the direction of the Special Servicer
as an expense of the Trust Fund pursuant to Section 3.05(a)(ix); and if any such
Environmental Assessment so warrants, the Special Servicer shall, at the expense
of the Trust Fund, retain an Independent Person who regularly conducts
Environmental Assessments to perform such additional environmental testing as it
deems necessary and prudent to determine whether the conditions described in
clauses (i) and (ii) of the preceding sentence have been satisfied in each case
subject to the Servicer's determination that such Advances, if made would not be
a Nonrecoverable Advance.
(d) If (i) the environmental testing contemplated by
subsection (c) above establishes that either of the conditions set forth in
clauses (i) and (ii) of the first sentence thereof has not been satisfied with
respect to any Mortgaged Property securing a Defaulted Mortgage Loan and (ii)
there has been no breach of any of the representations and warranties set forth
in or required to be made pursuant to Section 3.2 of the Mortgage Loan Purchase
and Sale Agreement for which the Mortgage Loan Seller could be required to
repurchase such Defaulted Mortgage Loan pursuant to Section 3.3 of the Mortgage
Loan Purchase and Sale Agreement, then the Special Servicer shall take such
action as it deems to be in the best economic interest of the Trust Fund (other
than proceeding to acquire title to the Mortgaged Property) and is hereby
authorized at such time as it deems appropriate to release such Mortgaged
Property from the lien of the related Mortgage if the Special Servicer has
obtained an Opinion of Counsel to the effect that such release will not result
in the imposition of tax on the Lower-Tier REMIC or the Upper-Tier REMIC or
cause either the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Uncertificated Lower-Tier Interst or Certificates are
outstanding.
(e) The Special Servicer shall promptly provide copies of all
written reports and any Environmental Assessments received from any Independent
Person conducting Environmental Assessments or related testing to the Trustee,
the Paying Agent and the Servicer regarding any actions taken or proposed to be
taken by the Special Servicer with respect to any Mortgaged Property securing a
defaulted Mortgage Loan as to which the environmental testing contemplated in
subsection (c) above has revealed that either of the conditions set forth in
clauses (i) and (ii) of the first sentence thereof has not been satisfied, in
each case until the earlier
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to occur of satisfaction of both such conditions, repurchase of the related
Mortgage Loan by the Mortgage Loan Seller or release of the lien of the related
Mortgage on such Mortgaged Property. The Trustee shall forward, or cause to be
forwarded all such reports to the Certificateholders and each Rating Agency
promptly following the receipt thereof. In addition, the Servicer will deliver,
or cause to be delivered to the Class F, Class G, Class H, Class I, Class J and
Class K Certificateholders a copy of any such written reports and any
Environmental Assessments within 15 days after receipt of such written reports
and Environmental Assessments from the Special Servicer.
(f) The Servicer shall report to the Internal Revenue Service
and the related Mortgagor, in the manner required by applicable law, the
information required to be reported regarding any Mortgaged Property which is
abandoned or foreclosed and the Servicer shall report, via Form 1099C, all
forgiveness of indebtedness. The Special Servicer shall provide the Servicer
with such information or reports relating to the Specially Serviced Mortgage
Loans and REO Property that the Servicer deems necessary to fulfill its
obligations under this paragraph (f) promptly upon the Servicer's request
therefor. The Servicer shall deliver a copy of any such report to the Trustee
and the Special Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan permit such an action.
(h) The Special Servicer shall prepare and maintain accurate
records of each Final Recovery Determination in respect of a Defaulted Mortgage
Loan or REO Property and the basis thereof. Each Final Recovery Determination
shall be evidenced by an Officer's Certificate delivered to the Trustee and the
Servicer no later than the next succeeding P&I Advance Determination Date.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Servicer or the Special Servicer, as the case may be, of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Servicer or Special Servicer, as the case may be, will
immediately notify the Trustee and request delivery of the related Mortgage
File. Any such notice and request shall be in the form of a Request for Release
signed by a Servicing Officer and shall include a statement to the effect that
all amounts received or to be received in connection with such payment which are
required to be deposited in the Certificate Account pursuant to Section 3.04(a)
or remitted to the Servicer to enable such deposit, have been or will be so
deposited. Within seven Business Days (or within such shorter period as release
can reasonably be accomplished if the Servicer notifies the Trustee of an
exigency) of receipt of such notice and request, the Trustee shall release, or
cause any related Custodian to release, the related Mortgage File to the
Servicer or Special Servicer, as the case may be. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Certificate Account but shall be payable by the related
borrower.
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(b) From time to time as is appropriate for servicing or
foreclosure of any Mortgage Loan, the Servicer or the Special Servicer shall
deliver to the Trustee a Request for Release signed by a Servicing Officer. Upon
receipt of the foregoing, the Trustee shall deliver or cause the related
Custodian to deliver, the Mortgage File or any document therein to the Servicer
or the Special Servicer (or a designee), as the case may be. Upon return of such
Mortgage File or such document to the Trustee or the related Custodian, or the
delivery to the Trustee of a certificate of a Servicing Officer of the Servicer
or the Special Servicer, as the case may be, stating that such Mortgage Loan was
liquidated and that all amounts received or to be received in connection with
such liquidation which are required to be deposited into the Certificate Account
pursuant to Section 3.04(a) have been or will be so deposited, or that such
Mortgage Loan has become an REO Property, a copy of the Request for Release
shall be released by the Trustee to the Servicer or the Special Servicer (or a
designee), as the case may be, with the original being released upon termination
of the Trust. The Servicer and Special Servicer also shall take such actions as
each of them shall deem reasonably necessary to facilitate the servicing of the
Servicing Retained Mortgage Loan including, but not limited to, delivering
appropriate Requests for Release to the Trustee in order to deliver any portion
of the related Mortgage file to the Servicing Retained Servicer or Servicing
Retained Special Servicer under the Servicing Retained Servicing Agreement.
(c) Within five Business Days (or within such shorter period
as delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity. The Special
Servicer shall be responsible for the preparation of all such documents and
pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Servicing Compensation.
(a) As compensation for its activities hereunder, the Servicer shall be entitled
to receive the Servicing Fee with respect to each Mortgage Loan and REO Loan. As
to each Mortgage Loan and REO Loan, the Servicing Fee shall accrue from time to
time at the Servicing Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Mortgage Loan as of the immediately preceding
Distribution Date (in each case, after giving effect to the distribution of
principal of such Mortgage Loan on such Distribution Date) and a 360-day year
consisting of twelve 30-day months and, in connection with any partial month
interest payment, for the same period respecting which any related interest
payment due on such Mortgage Loan or deemed to be due on such REO Loan is
computed. The Servicing Fee with respect to any
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Mortgage Loan or REO Loan (and any interest on Advances) shall cease to accrue
if a Liquidation Event occurs in respect thereof. The Servicing Fee shall be
payable monthly, on a loan-by-loan basis, from payments of interest (as may be
advanced by a P&I Advance) on each Mortgage Loan and REO Revenues allocable as
interest on each REO Loan. The Servicer shall be entitled to recover unpaid
Servicing Fees in respect of any Mortgage Loan or REO Loan out of that portion
of related payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
and REO Revenues (in the case of an REO Loan) allocable as recoveries of
interest, to the extent permitted by Section 3.05(a). The right to receive the
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all of the Servicer's responsibilities and obligations
under this Agreement. The Servicer shall pay, from its own funds, the Trustee
Fee and the annual fees of each of the Rating Agencies (such fees not to exceed
$25,000 in the aggregate) without being entitled to reimbursement of such
amounts as a Servicing Advance or otherwise. Any Rating Agency fee in excess of
$25,000 will be the obligation of the Depositor. No Trustee Fee will be payable
hereunder with respect to the Pari Passu Loan; provided that trustee fees may be
payable with respect to the Pari Passu Loan upon the inclusion of the Pari Passu
Loan in a future securitization to the extent specified by the separate pooling
and servicing agreement executed in connection therewith. Any such fees with
respect to the Pari Passu Loan will be payable by the Servicer to the trustee
appointed under any such pooling and servicing agreement from servicing
compensation paid hereunder at a rate not in excess of a rate equal to 0.007%
per annum computed on the basis of the Stated Principal Balance of the Pari
Passu Loan and on the basis of a year assumed to consist of 360 days and twelve
30-day months as of the immediately preceding Distribution Date (in each case,
after giving effect to the distribution of principal of such Pari Passu Loan on
such Distribution Date).
Additional servicing compensation in the form of all
assumption fees paid by the Mortgagor on Mortgage Loans (other than the
Servicing Retained Mortgage Loan) that are not Specially Serviced Mortgage Loans
and only to the extent that all amounts then due and payable with respect to the
related Mortgage Loan (including interest on Advances) have been paid, and
charges for beneficiary statements or demands and amounts collected for checks
returned for insufficient funds, processing fees and application fees, in each
case only to the extent actually paid by the related Mortgagor, shall be
retained by the Servicer and shall not be required to be deposited in the
Certificate Account pursuant to Section 3.04(a). The Servicer shall also be
entitled to additional servicing compensation in the form of: (i) Penalty
Charges received on the Mortgage Loans (other than the Servicing Retained
Mortgage Loan and any Specially Serviced Mortgage Loans), but only to the extent
actually paid by the related Mortgagor and to the extent that all amounts then
due and payable with respect to the related Mortgage Loan (including interest on
Advances) have been paid and are not needed to pay interest on Advances with
respect to any other Mortgage Loan; (ii) interest or other income earned on
deposits relating to the Trust Fund in the Certificate Account, the Pari Passu
Account and the Interest Reserve Account in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with respect to each
such account for each period from any Distribution Date to the immediately
succeeding Servicer Remittance Date); and (iii) interest earned on deposits in
the Servicing Account which are not required by applicable law or the related
Mortgage Loan to be paid to the Mortgagor. The Servicer shall be required to pay
out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation,
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payment of any amounts due and owing to any of its Sub-Servicers and, except as
provided in Section 3.07, the premiums for any blanket Insurance Policy insuring
against hazard losses pursuant to Section 3.07), if and to the extent such
expenses are not payable directly out of the Certificate Account, and the
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan and interest or other income
earned on deposits relating to the Trust Fund in any REO Account in accordance
with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to each such account for each period from any Distribution
Date to the immediately succeeding Servicer Remittance Date). As to each
Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall
accrue from time to time at the Special Servicing Fee Rate and shall be computed
on the basis of the Stated Principal Balance of such Specially Serviced Mortgage
Loan or REO Loan as of the immediately preceding Distribution Date (in each
case, after giving effect to the distribution of principal of such Mortgage Loan
on such Distribution Date) and a 360-day year consisting of twelve 30-day months
and, in connection with any partial month interest payment, for the same period
respecting which any related interest payment due on such Specially Serviced
Mortgage Loan or deemed to be due on such REO Loan is computed. The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. The
Special Servicing Fee shall be payable monthly, on a loan-by-loan basis, to the
extent permitted by Section 3.05(a). The right to receive the Special Servicing
Fee may not be transferred in whole or in part except in connection with the
transfer of all of the Special Servicer's responsibilities and obligations under
this Agreement.
Additional servicing compensation in the form of (a) all
assumption fees received on Specially Serviced Mortgage Loans and (b) all
modification fees received on all Mortgage Loans (other than the Servicing
Retained Mortgage Loan), regardless of whether or not such Mortgage Loans are
Specially Serviced Mortgage Loans, but only to the extent actually collected
from the related Mortgagor and only to the extent that all amounts then due and
payable with respect to the related Mortgage Loan (including those payable to
the Servicer pursuant to Section 3.11(a)) have been paid, shall be promptly paid
to the Special Servicer by the Servicer and shall not be required to be
deposited in the Certificate Account pursuant to Section 3.04(a). The Special
Servicer shall also be entitled to additional servicing compensation in the form
of a Workout Fee with respect to each Corrected Mortgage Loan (other than the
Servicing Retained Mortgage Loan) at the Workout Fee Rate on such Mortgage Loan
for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if such loan
again becomes a Specially Serviced Mortgage Loan; provided that a new Workout
Fee will become payable if and when such Mortgage Loan again becomes a Corrected
Mortgage Loan. If the Special Servicer is terminated pursuant to Section 7.01(c)
(other than for cause), it shall retain the right to receive any and all Workout
Fees payable with respect to Mortgage Loans that became Corrected Mortgage Loans
during the period that it acted as Special Servicer and were Corrected Mortgage
Loans at the time of such termination (and the successor Special Servicer shall
not be entitled to any portion of such Workout Fees), in each
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case until the Workout Fee for any such loan ceases to be payable in accordance
with the preceding sentence; provided, that at any time that the Directing
Certificateholder is the Servicer, Special Servicer or an Affiliate thereof, any
termination pursuant to Section 7.01(c) other than for cause will be deemed to
be a resignation by the Special Servicer, and, under such circumstances, the
Special Servicer will not have any right to any Workout Fees following such
termination. A Liquidation Fee will be payable with respect to each Specially
Serviced Mortgage Loan (other than the Servicing Retained Mortgage Loan) as to
which the Special Servicer receives any Liquidation Proceeds subject to the
exceptions set forth in the definition of Liquidation Fee.
Notwithstanding anything to the contrary described above, no
Liquidation Fee will be payable based on, or out of, Liquidation Proceeds
received in connection with the repurchase of any Mortgage Loan by the Mortgage
Loan Seller for a breach of representation or warranty or for defective or
deficient Mortgage Loan documentation, the purchase of any Specially Serviced
Mortgage Loan by the Controlling Class Certificateholder holding the largest
Certificate Balance of the Certificates of the Controlling Class, the Special
Servicer or the Holders of Class LR Certificates or the purchase of all of the
Mortgage Loans and REO Properties in connection with an optional termination of
the Trust Fund pursuant to Section 9.01. If, however, Liquidation Proceeds are
received with respect to any Corrected Mortgage Loan and the Special Servicer is
properly entitled to a Workout Fee, such Workout Fee will be payable based on
and out of the portion of such Liquidation Proceeds that constitute principal
and/or interest on such Mortgage Loan.
The Special Servicer will also be entitled to additional fees
in the form of Penalty Charges on Specially Serviced Mortgage Loans (other than
the Servicing Retained Mortgage Loan), but only to the extent actually collected
from the related Mortgagor and to the extent that all amounts then due and
payable with respect to the related Mortgage Loan (including interest on
Advances) have been paid and are not needed to pay interest on Advances with
respect to any other Mortgage Loan.
The Special Servicer shall be required to pay out of its own
funds all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts, other than
management fees in respect of REO Properties, due and owing to any of its
Sub-Servicers and the premiums for any blanket Insurance Policy obtained by it
insuring against hazard losses pursuant to Section 3.07), if and to the extent
such expenses are not payable directly out of the Certificate Account or the REO
Account, and the Special Servicer shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
(c) In determining the compensation of the Servicer or Special
Servicer, as applicable, with respect to Penalty Charges, on any Distribution
Date, the aggregate Penalty Charges collected during the related Due Period
shall first be applied to reimburse the Servicer or the Trustee or Fiscal Agent
for interest on Advances due on such Distribution Date, and any Penalty Charges
remaining thereafter shall be distributed pro rata to the Servicer and the
Special Servicer based upon the amount of Penalty Charges the Servicer or the
Special Servicer would otherwise have been entitled to receive during such
period without any such application.
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SECTION 3.12. Inspections; Collection of Financial Statements.
(a) The Servicer shall perform (at its own expense), or shall
cause to be performed (at its own expense), a physical inspection of each
Mortgaged Property (other than with the Mortgaged Property securing the
Servicing Retained Mortgage Loan) at such times and in such manner as are
consistent with the Servicing Standard, but in any event shall inspect each
Mortgaged Property (other than with the Mortgaged Property securing the
Servicing Retained Mortgage Loan) securing a Mortgage Note with a Stated
Principal Balance of (a) $2,000,000 or more at least once every 12 months and
(b) less than $2,000,000 at least once every 24 months, in each case commencing
in the calendar year 2000; provided, however, that if the Servicer has a
reasonable basis to believe that (i) the Debt Service Coverage Ratio with
respect to any Mortgaged Property has decreased by 25% or more from the Debt
Service Coverage Ratio as of the Cut-off Date or (ii) the Debt Service Coverage
Ratio with respect to any Mortgaged Property has decreased to 1.05x or less, the
Servicer shall inspect the related Mortgaged Property as soon as practicable
thereafter (the reasonable cost of which inspection shall be at the expense of
the Trust Fund); provided, further, however, that if any scheduled payment
becomes more than 60 days delinquent on the related Mortgage Loan, the Special
Servicer shall inspect the related Mortgaged Property as soon as practicable
thereafter. The cost of such inspection by the Special Servicer shall be an
expense of the Trust Fund. The Special Servicer or the Servicer, as applicable,
shall prepare or cause to be prepared a written report of each such inspection
detailing the condition of the Mortgaged Property and specifying the existence
of (i) any vacancy in the Mortgaged Property that the preparer of such report
deems material, (ii) any sale, transfer or abandonment of the Mortgaged
Property, (iii) any adverse change in the condition of the Mortgaged Property
that the preparer of such report deems material and (iv) any visible waste
committed on the Mortgaged Property. 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 loan that is not a Specially Serviced Mortgage
Loan, provided that the Special Servicer notifies the Servicer prior to such
inspection, and provides a copy of such inspection to the Servicer. If the
Special Servicer performs such inspection in accordance with the Servicing
Standard and other provisions of this paragraph (a) and of the related Loan
Documents, such inspection shall satisfy the Servicer's inspection obligations
pursuant to this paragraph (a). The Special Servicer and the Servicer shall
deliver a copy of each such report prepared by the Special Servicer and the
Servicer, respectively, to the other, each of the Rating Agencies and the
Trustee, and the Trustee shall deliver such reports to the Paying Agent, the
Underwriter, the Placement Agent and, upon request, each Holder of a Class F,
Class G, Class H, Class I, Class J and Class K Certificate.
(b) The Servicer, or with respect to Specially Serviced
Mortgage Loans, the Special Servicer, as applicable, shall make reasonable best
efforts consistent with the Servicing Standard to collect promptly from each
Mortgagor annual and quarterly operating statements and rent rolls of the
related Mortgaged Property, financial statements of such Mortgagor and any
other reports required to be delivered under the terms of the Mortgage Loans,
if delivery of such items is required pursuant to the terms of the related
Mortgage. The Special Servicer or Servicer, as applicable, shall promptly: (i)
review all such items as may be collected and (ii) prepare written reports in
the form of Exhibits I-7 and I-8 based on such reviews identifying the Debt
Service Coverage Ratios for the related Mortgage Loans. The Special Servicer
shall deliver
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copies of the collected items, and the written reports in the form of Exhibits
I-7 and I-8 or in a format acceptable to Servicer, in each case within 20 days
of its receipt or preparation, as applicable, but in no event less than annually
by January 1st of each year. The Servicer shall deliver copies of the collected
items, and of reports in the form of Exhibits I-7 and I-8 in respect of the
written reports prepared in respect thereof or received from the Special
Servicer in an electronic format mutually agreed upon by the Servicer and the
Trustee, to the Trustee and the Special Servicer and each of the Rating
Agencies. To the extent received from the Servicer, the Trustee shall deliver
reports in the form of Exhibits I-7 and I-8 to the Underwriter, the Placement
Agent and each Holder of a Class F, Class G, Class H and Class I, Class J and
Class K Certificate, via diskette or other electronic transmission and by
written report to follow, in each case (other than quarterly operating
statements received by the Servicer, which will be provided to the Rating
Agencies and the Directing Certificateholder, and otherwise, only upon request
(which such request may state that such operating statements be delivered until
further notice) within 30 days of its receipt or preparation, as applicable,
beginning in June, 1999 but thereafter in no event less frequently than annually
by June 30th of each year.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Servicer and the Special Servicer will deliver to
the Trustee, with a copy to the Paying Agent, each Rating Agency and the
Depositor and the Directing Certificateholder, on or before April 30th of each
year, beginning April 30, 2000, an Officer's Certificate stating, as to each
signer thereof, that (i) a review of the activities of the Servicer or the
Special Servicer, as the case may be, during the preceding calendar year and of
its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Servicer or the Special Servicer, as the case may be, has maintained an
effective internal control system relating to its servicing of the Mortgage
Loans serviced by it and has fulfilled in all material respects its obligations
under this Agreement throughout such year, or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof and (iii) the Servicer or the
Special Servicer, as the case may be, has received no notice regarding
qualification, or challenging the status, of either the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC from the Internal Revenue Service or any other
governmental agency or body or, if it has received any such notice, specifying
the details thereof. A copy of such Officer's Certificate may be obtained by
Certificateholders upon written request to the Trustee pursuant to Section 8.12
hereof.
SECTION 3.14. Reports by Independent Public Accountants.
Each of the Servicer and the Special Servicer at their own
expense shall cause a nationally recognized firm of independent certified public
accountants to furnish to the Servicer or the Special Servicer, as the case may
be, the Trustee, the Paying Agent and each Rating Agency, on or before April
30th of each year, commencing with 2000, a report stating that (i) it has
obtained from the Servicer or the Special Servicer, as the case may be, a letter
of representation regarding certain matters from the management of the Servicer
or the Special Servicer, as the case may be, which includes an assertion that
the Servicer or the Special Servicer, as the case may be, has maintained an
effective internal control system with respect to
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the servicing of the Mortgage Loans and has complied with certain minimum
mortgage loan servicing standards (to the extent applicable to commercial,
multifamily and manufactured housing community mortgage loans), identified in
the Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage Bankers Association of America, with respect to the Servicer's or the
Special Servicer's, as the case may be, servicing of commercial, multifamily and
manufactured housing community mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such assertion is fairly stated in all material respects,
subject to such exceptions and other qualifications that, in the opinion of such
firm, such standards require it to report. In rendering its report such firm may
rely, as to the matters relating to the direct servicing of commercial,
multifamily and manufactured housing community mortgage loans by Sub-Servicers,
upon comparable reports of firms of independent certified public accountants
rendered on the basis of examinations conducted in accordance with the same
standards (rendered within 1 year of such statement) with respect to those
Sub-Servicers.
SECTION 3.15. Access to Certain Information.
Each of the Servicer and the Special Servicer shall provide or
cause to be provided to any Certificateholder or Certificate Owner that is, or
is affiliated with, a federally insured financial institution, the Trustee, the
Depositor, each Rating Agency, to the Servicer, or to the Special Servicer, as
applicable, and to the OTS, the FDIC, the Federal Reserve Board and the
supervisory agents and examiners of such boards and such corporations, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, and each Holder of a Class F,
Class G, Class H, Class I, Class J and Class K Certificate, access to any
documentation regarding the Mortgage Loans and the Trust Fund within its control
which may be required by this Agreement or by applicable law. Such access shall
be afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Servicer or the Special
Servicer, as the case may be, designated by it; provided, however, that the
Class F, Class G, Class H, Class I, Class J and Class K Certificateholders shall
be required to pay a reasonable and customary fee for access to the
aforementioned information, shall pay their own photocopying costs and execute a
reasonable and customary confidentiality agreement with respect to such
information. Nothing in this Section 3.15 shall detract from the obligation of
the Servicer and the Special Servicer to observe any applicable law prohibiting
disclosure of information with respect to the Mortgagors, and the failure of the
Servicer or the Special Servicer to provide access as provided in this Section
3.15 as a result of such obligation shall not constitute a breach of this
Section 3.15. The Servicer and the Special Servicer may each deny any of the
foregoing persons access to confidential information or to any intellectual
property which the Servicer or the Special Servicer is restricted by license or
contract from disclosing. Notwithstanding the foregoing, the Servicer and the
Special Servicer shall maintain separate from such confidential information and
intellectual property, all documentation regarding the Mortgage Loans that is
not confidential.
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SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee on behalf of the
Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property prior to the close of the third calendar year following
the year in which the Trust Fund acquires ownership of such REO Property, within
the meaning of Treasury Regulations Section 1.856-6(b)(1), for purposes of
Section 860G(a)(8) of the Code, unless the Special Servicer either (i) is
granted an extension of time (an "REO Extension") by the Internal Revenue
Service to sell such REO Property or (ii) obtains for the Trustee and the
Servicer an Opinion of Counsel (the cost of which shall be paid as a Servicing
Advance), addressed to the Trustee and the Servicer, to the effect that the
holding by the Trust Fund of such REO Property subsequent to such third
anniversary of such acquisition will not result in the imposition of taxes on
"prohibited transactions" of the Trust Fund or the Lower-Tier REMIC or the
Upper-Tier REMIC constituted thereby as defined in Section 860F of the Code or
cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as
a REMIC at any time that any Uncertificated Lower-Tier Interests or Certificates
are outstanding. If the Special Servicer is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel contemplated by clause (ii) of the immediately preceding
sentence, the Special Servicer shall sell such REO Property within such longer
period as is permitted by such REO Extension or such Opinion of Counsel, as the
case may be. Any expense incurred by the Special Servicer in connection with its
being granted the REO Extension contemplated by clause (i) of the second
preceding sentence shall be an expense of the Trust Fund payable out of the
Certificate Account pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish or cause to be established and maintain or
cause to be maintained, one or more REO Accounts, held on behalf of the Trustee
in trust for the benefit of the Certificateholders, for the retention of
revenues and other proceeds derived from each REO Property. The REO Account
shall be an Eligible Account. Subject to Section 3.17, the Special Servicer
shall deposit, or cause to be deposited, in the REO Account, within one Business
Day after receipt, all REO Revenues, Insurance and Condemnation Proceeds and
Liquidation Proceeds received by it in respect of an REO Property. Funds in the
REO Account may only be invested in Permitted Investments in accordance with
Section 3.06. The Special Servicer shall give notice to the Trustee and the
Servicer of the location of the REO Account when first established and of the
new location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. No later than 12:00 p.m. Dallas
time on the Business Day immediately following each Determination Date, the
Special Servicer shall deposit into the Certificate Account the aggregate of all
amounts received in respect of each REO Property during the most recently ended
Due Period, net of any withdrawals made out of such amounts pursuant to the
preceding sentence;
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provided, however, that the Special Servicer may retain in such REO Account, in
accordance with the Servicing Standard, such portion of such balance as may be
necessary to maintain a reasonable reserve for repairs, replacements, leasing,
management and tenant improvements and other related expenses for the related
REO Property. In addition, no later than 3:00 p.m. Dallas time on the Business
Day immediately following each Determination Date, the Special Servicer shall
provide the Servicer with an accounting, on a loan by loan basis in an
electronic format reasonably determined by the Servicer, of amounts deposited in
the Certificate Account on such date.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or (c).
SECTION 3.17. Management of REO Property.
(a) If title to any REO Property is acquired, the Special
Servicer shall manage, conserve, protect, operate and lease such REO Property
for the benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are in the
best interests of and for the benefit of the Certificateholders (as determined
by the Special Servicer in its good faith and reasonable judgment and in
accordance with the Servicing Standard). Subject to this Section 3.17, the
Special Servicer may earn "net income from foreclosure property" within the
meaning of Code Section 860G(c) if it determines that earning such income is in
the best interests of Certificateholders on a net after-tax basis as compared
with net leasing such REO Property or operating such REO Property on a different
basis. In connection therewith, the Special Servicer shall deposit or cause to
be deposited on a daily basis (and in no event later than the Business Day
following receipt of such funds) in the applicable REO Account all revenues
received by it with respect to each REO Property and the related REO Loan, and
shall withdraw or cause to be withdrawn from the REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing and maintenance of such REO
Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
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(iv) all costs and expenses necessary to maintain and lease
such REO Property.
To the extent that amounts on deposit in the REO Account in
respect of any REO Property are insufficient for the purposes set forth in
clauses (i) - (iv) above with respect to such REO Property, the Servicer shall
advance from its own funds such amount as is necessary for such purposes unless
the Servicer determines (as evidenced by an Officer's Certificate delivered to
the Trustee, the Paying Agent and the Depositor) such advances would, if made,
constitute Nonrecoverable Servicing Advances. The Special Servicer shall give
the Servicer and the Trustee not less than five Business Days' notice, together
with all information reasonably requested by the Servicer (upon which the
Servicer may conclusively rely) before the date on which the Servicer is
requested to make any Servicing Advance with respect to an REO Property;
provided, however, that only two Business Days' notice shall be required in
respect of Servicing Advances required to be made on an urgent or emergency
basis (which may include, without limitation, Servicing Advances required to
make tax or insurance payments).
(b) Without limiting the generality of the foregoing, the
Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or
extend any New Lease with respect to any REO Property, if the
New Lease by its terms will give rise to any income that does
not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued
under any New Lease other than amounts that will constitute
Rents from Real Property;
(iii) authorize or permit any construction on any REO
Property, other than the completion of a building or other
improvement thereon, and then only if more than 10% of the
construction of such building or other improvement was
completed before default on the related Mortgage Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of
the Code; or
(iv) Directly Operate, or allow any other Person,
other than an Independent Contractor, to Directly Operate, any
REO Property on any date more than 90 days after its
acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer (or, if required by
Section 3.03(c), the Trustee or the Fiscal Agent, as applicable) as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
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(i) the terms and conditions of any such contract may
not be inconsistent herewith and shall reflect an agreement
reached at arm's length;
(ii) the fees of such Independent Contractor (which
shall be an expense of the Trust Fund) shall be reasonable and
customary in light of the nature and locality of the Mortgaged
Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor (A)
pay all costs and expenses incurred in connection with the
operation and management of such REO Property, including,
without limitation, those listed in subsection (a) hereof, and
(B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer for deposit
in the REO Account no less frequently than monthly;
(iv) none of the provisions of this Section 3.17(c)
relating to any such contract or to actions taken through any
such Independent Contractor shall be deemed to relieve the
Special Servicer of any of its duties and obligations
hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with
respect thereto to the same extent as if it alone were
performing all duties and obligations in connection with the
operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for it related to
its duties and obligations hereunder for indemnification of the Special Servicer
and the Trust by such Independent Contractor, and nothing in this Agreement
shall be deemed to limit or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to
the Trustee and the Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non-customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property in accordance with Sections 3.17(a) and
3.17(b).
SECTION 3.18. Sale of Defaulted Mortgage Loans and REO
Properties.
(a) Each of the Servicer and the Special Servicer may sell or
purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property
only on the terms and subject to the conditions set forth in this Section 3.18
and Section 3.21(e) or as otherwise expressly provided in or contemplated by
Section 2.03(b) and Section 9.01.
(b) In the event that any Mortgage Loan becomes a Defaulted
Mortgage Loan and the Special Servicer has determined in good faith that such
Defaulted Mortgage Loan will become subject to foreclosure proceedings, the
Special Servicer shall promptly so notify in
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writing the Trustee, the Servicer and the Controlling Class Certificateholder
holding the largest Certificate Balance of the Certificates of the Controlling
Class. The Special Servicer, the Servicer and the Controlling Class
Certificateholder holding the largest Certificate Balance of the Certificates of
the Controlling Class may at their respective option purchase such Defaulted
Mortgage Loan from the Trust Fund, at a price equal to the Purchase Price;
provided, however, that the Controlling Class Certificateholder holding the
largest Certificate Balance of the Certificates of the Controlling Class shall
have the first right to exercise such option, which first right of refusal shall
extend for 15 Business Days following its receipt of notification of the
Servicer's determination. The Purchase Price for any Defaulted Mortgage Loan
purchased hereunder shall be deposited into the Certificate Account, and the
Trustee, upon receipt of an Officer's Certificate from the Special Servicer to
the effect that such deposit has been made, shall release or cause to be
released to the Special Servicer or the Servicer, as the case may be, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be necessary to
vest in the Special Servicer or the Servicer (in that order), as the case may
be, ownership of such Defaulted Mortgage Loan.
(c) The Special Servicer may offer to sell any Defaulted
Mortgage Loan not otherwise purchased by the Special Servicer, the Servicer or
the Controlling Class Certificateholders pursuant to subsection (b) above, if
and when the Special Servicer determines, consistent with the Servicing
Standard, that such a sale would produce a greater recovery on a present value
basis than would liquidation of the related Mortgaged Property. Such offering
shall be made in a commercially reasonable manner. The Special Servicer shall
accept the highest cash bid received from any Person for such Defaulted Mortgage
Loan in an amount at least equal to the Purchase Price therefor; provided, that
in the absence of any such bid, the Special Servicer shall accept the highest
cash bid received from any Person (including any Controlling Class
Certificateholders) that is determined by the Special Servicer to be a fair
price for such Defaulted Mortgage Loan. In the absence of any bid determined (as
provided below) to be a fair price, the Special Servicer shall proceed with
respect to such Defaulted Mortgage Loan in accordance with Section 3.09.
The Special Servicer shall use reasonable best efforts
consistent with the Servicing Standard to solicit bids for each REO Property in
such manner as will be reasonably likely to realize a fair price within the time
period provided for by Section 3.16(a). Such solicitation shall be made in a
commercially reasonable manner. The Special Servicer shall accept the highest
cash bid received from any Person for such REO Property in an amount at least
equal to the Purchase Price therefor; provided that in the absence of any such
bid, the Special Servicer shall accept the highest cash bid received from any
Person that is determined by the Special Servicer to be a fair price for such
REO Property. If the Special Servicer reasonably believes that it will be unable
to realize a fair price for any REO Property within the time constraints imposed
by Section 3.16(a), then the Special Servicer shall dispose of such REO Property
upon such terms and conditions as the Special Servicer shall deem necessary and
desirable to maximize the recovery thereon under the circumstances and, in
connection therewith, shall accept the highest outstanding cash bid, regardless
of from whom received. Notwithstanding the foregoing, the Special Servicer shall
not be obligated by the foregoing or otherwise to accept the highest bid if the
Special Servicer determines, in accordance with the
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Servicing Standard, that rejection of such bid would be in the best interests of
the Certificateholders. In the event that the Special Servicer determines with
respect to any REO Property that the offers being made with respect thereto are
not in the best interests of the Certificateholders and that the end of the
period referred to in Section 3.16(a) with respect to such REO Property is
approaching, the Special Servicer shall seek an extension of such period in the
manner described in Section 3.16(a); provided, however, that the Special
Servicer shall use its reasonable best efforts consistent with the Servicing
Standard, to sell any REO Property prior to two years prior to the Rated Final
Distribution Date.
The Special Servicer shall give the Trustee, the Servicer and
the Directing Certificateholder not less than three Business Days' prior written
notice of its intention to sell any Defaulted Mortgage Loan or REO Property. No
Interested Person shall be obligated to submit a bid to purchase any Defaulted
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Defaulted Mortgage Loan or any REO
Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any
Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of
Section 3.18(c), shall be determined by the Special Servicer, if the highest
bidder is a Person other than an Interested Person, and by the Trustee, if the
highest bidder is an Interested Person. In determining whether any bid received
from an Interested Person represents a fair price for any Defaulted Mortgage
Loan or any REO Property, the Trustee may conclusively rely on the opinion of an
Independent Appraiser or other expert in real estate matters retained by the
Special Servicer at the expense of the Trust Fund. In determining whether any
bid constitutes a fair price for any Defaulted Mortgage Loan or any REO
Property, such appraiser or other expert in real estate matters shall be
instructed to take into account, as applicable, among other factors, the period
and amount of any delinquency on the affected Defaulted Mortgage Loan, the
occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a). The Purchase
Price for any Defaulted Mortgage Loan or REO Property shall in all cases be
deemed a fair price.
(e) Subject to subsections (a) through (d) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Mortgage Loan or REO Property, and the collection of all amounts payable in
connection therewith. Any sale of a Defaulted Mortgage Loan or any REO Property
shall be final and without recourse to the Trustee or the Trust Fund, and if
such sale is consummated in accordance with the terms of this Agreement, neither
the Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
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SECTION 3.19. [Intentionally Omitted]
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) Except as set forth in this Section 3.20(a) and Section
3.08, the Servicer shall not agree to any modification, waiver or amendment of a
Mortgage Loan, and, except as provided in the following paragraph, Section
3.08(e), Section 3.08(f) and in Section 3.20(d), no Mortgage Loan that is not a
Specially Serviced Mortgage Loan may be modified, waived or amended; provided,
however, that subject to Section 3.21(e) the Special Servicer may agree to
extend the maturity date of a Mortgage Loan that is not a Specially Serviced
Mortgage Loan, provided, further, that no such extension entered into pursuant
to this Section 3.20(a) shall be for a period of more than twelve months from
the original maturity date of such Mortgage Loan or shall extend the maturity
date beyond the earlier of (i) two years prior to the Rated Final Distribution
Date and (ii) in the case of a Mortgage Loan secured by a leasehold estate, the
date ten years prior to the expiration of such leasehold estate. If such
extension would extend the Maturity Date of a Mortgage Loan for more than twelve
months from and after the original maturity date of such Mortgage Loan, the
Special Servicer may only enter into such extension if it provides the Trustee
with an Opinion of Counsel (at the expense of the related Mortgagor) that such
extension would not constitute a "significant modification" of the Mortgage Loan
within the meaning of Treasury Regulations Section 1.860G-2(b). Any substitution
of collateral shall be treated hereunder as a modification or amendment of the
applicable Mortgage Loan.
Notwithstanding the foregoing, the Servicer may, consistent
with the Servicing Standard, modify or amend the terms of any Mortgage Loan
without the consent of the Special Servicer in order to (i) cure any ambiguity
therein, (ii) correct or supplement any provisions therein which may be
inconsistent with any other provisions therein or correct any error (iii) waive
defaults with respect to minor covenants (other than financial covenants),
including with respect to late financial statements, to the extent such waiver
will not have any material adverse affect on the rights or interests of the
Certificateholder of any Class, (iv) release parcels of a Mortgaged Property to
the extent that any such release will not have any material adverse affect on
the rights or interests of the Certificateholders of any Class, if each Rating
Agency has been notified by the Servicer of its intent to permit such release
and each Rating Agency has provided written notice that such release will not
result in the withdrawal, qualification or downgrade of its then current rating
of any Class of Certificates (provided that releases as to which the Loan
Documents expressly require the mortgagee thereunder to make such releases upon
the satisfaction of certain conditions shall be made as required in the Loan
Documents), (v) make any other modifications, waivers, or amendments which the
Servicer determined, in accordance with the Servicing Standard, are of routine
nature and will not have a material adverse affect on the rights or interests of
the Certificateholders of any Class, in each casae provided that such
modification, waiver or amendment would not be a "significant modification" of
the Mortgage Loan within the meaning of Treasury Regulations Section
1.860G-2(b), and provided further that the proposed modification, waiver or
amendment will not cause (x) either the Upper-Tier REMIC or the Lower-Tier REMIC
to fail to qualify as a REMIC for purposes of the Code or (y) either the
Upper-Tier REMIC or the Lower-Tier REMIC to be subject to any tax under the
REMIC Provisions.
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Neither the Servicer nor the Special Servicer shall permit the
substitution of any Mortgaged Property (or any portion thereof) at any time the
Mortgage Loan is not in default pursuant to the terms of the related Mortgage
Loan Documents except in accordance with the next sentence. Neither the Servicer
nor the Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan at any time such
Mortgage Loan is not in default pursuant to the terms of the related Mortgage
Loan documents unless the Servicer or the Special Servicer, as applicable, has
(a) provided notice to the Rating Agencies of such substitution and has received
written confirmation by each of the Rating Agencies that such substitution will
not cause the Rating Agency to downgrade, withdraw or qualify any of the ratings
assigned by the Rating Agency to any Class of Certificates; and (b) received (i)
a certificate of an Independent Certified public accountant (at the expense of
the related Mortgagor) to the effect that (A) in the event of a total defeasance
such substituted property will provide cash flows sufficient to meet all
payments of interest and principal (including payments at maturity) on such
Mortgage Loan, (B) in the event of a partial defeasance the remaining Mortgaged
Properties will have a Debt Service Coverage Ratio at least equal to the Debt
Service Coverage Ratio required by the related Mortgage Loan documents and (C)
in either case such defeasance is in compliance with the requirements of the
terms of the related Mortgage Loan documents and (ii) one or more Opinions of
Counsel (at the expense of the related Mortgagor) to the effect that (1) such
substitution will not cause the related Mortgage Loan to fail to qualify as a
"qualified mortgage" for REMIC purposes, (2) such substitution will not affect
the status as a REMIC of either the Upper-Tier REMIC or the Lower-Tier REMIC,
(3) such substitution will not subject the Trust Fund, the Upper-Tier REMIC or
the Lower-Tier REMIC to any tax, and (4) the Trustee, on behalf of the Trust
Fund, will have a first priority perfected security interest in such substituted
Mortgaged Property and (5) to the extent permitted by the related Mortgage Loan
Documents (and to the extent that the lender can require the same), the
substituted Mortgaged Property will be held in a special-purpose entity
established for this purpose; provided, however, that to the extent the related
Mortgage Loan documents provide the lender with discretion, the Servicer or the
Special Servicer, as applicable, shall require that the related Mortgagor pay
the cost of any such opinion as a condition to granting such defeasance. The
Servicer or the Special Servicer, as applicable, shall notify the Directing
Certificateholder of each defeasance of a Mortgage Loan pursuant to this
paragraph and shall provide each Rating Agency with a copy of each certificate
of a certified public accountant received by the Servicer pursuant to clause (i)
above and the Opinion of Counsel received by the Servicer pursuant to clause
(ii) above.
Notwithstanding anything to the contrary herein, with respect
to any Mortgage Loan the outstanding principal balance of which exceeds the
lesser of $15,000,000 or 5% of the outstanding aggregate balance of all Mortgage
Loans in the Trust Fund, the Servicer will not consent to the removal or
replacement of any property manager or (b) consent to or approve of (to the
extent the related Loan Documents require the related borrower to obtain the
consent to or approval of the related mortgagee) any transfer of equity of (or
equivalent ownership interests in) the related borrower or of any equity owner
of the borrower that is itself required to be a special purpose entity, if,
during the term of such Mortgage Loan, in excess of 49% of such equity (or
equivalent) will have been transferred to any other party, in either case unless
notice thereof shall have been given to each Rating Agency and each Rating
Agency shall have confirmed in writing
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that such action will not, by itself, result in the downgrade, withdrawal or
reduction of its then-current rating of any outstanding Class of Certificates.
(b) If, but only if, the Special Servicer determines that a
modification, waiver or amendment (including, without limitation, the
forgiveness or deferral of interest or principal or the substitution of
collateral pursuant to the terms of the Mortgage Loan or otherwise, the release
of collateral or the pledge of additional collateral) of the terms of a
Specially Serviced Mortgage Loan with respect to which a payment default or
other material default has occurred or a payment default or other material
default is, in the Special Servicer's judgment, reasonably foreseeable (as
evidenced by an Officer's Certificate of the Special Servicer), and is
reasonably likely to produce a greater recovery on a net present value basis
(the relevant discounting to be performed at the related Mortgage Rate) than
liquidation of such Specially Serviced Mortgage Loan, then the Special Servicer
may agree to a modification, waiver or amendment of such Specially Serviced
Mortgage Loan, subject to the provisions of this Section 3.20(b) and Section
3.20(c) and Section 3.21(e).
The Special Servicer shall use its reasonable best efforts consistent
with the Servicing Standard to the extent possible to cause each Specially
Serviced Mortgage Loan to fully amortize no later than two years prior to the
Rated Final Distribution Date and shall not agree to a modification, waiver or
amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would:
(i) extend the maturity date of any such Specially
Serviced Mortgage Loan to a date occurring later than the
earlier of (a) two years prior to the Rated Final Distribution
Date and (b) if such Specially Serviced Mortgage Loan is
secured by a leasehold estate, the date occurring ten years
prior to the expiration of such leasehold;
(ii) reduce the related Mortgage Rate on any such
Specially Serviced Mortgage Loan to less than the lesser of
(a) the Net Mortgage Rate as of the Cut-off Date and (b) the
highest Pass-Through Rate on any Class of Certificate (other
than the Class X Certificates); or
(iii) provide for the deferral of interest unless (a)
interest accrues thereon, generally, at the related Mortgage
Rate and (b) the aggregate amount of such deferred interest
does not exceed 10% of the unpaid principal balance of the
Specially Serviced Mortgage Loan.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, no fee described in this paragraph shall be collected by any
Servicer or Special Servicer from a Mortgagor (or on behalf of the Mortgagor) in
conjunction with any consent or any modification, waiver or amendment of a
Mortgage Loan (unless the amount thereof is specified in the related Mortgage
Note) if the collection of such fee would cause such consent, modification,
waiver or amendment to be a "significant modification" of the Mortgage Note
within the meaning of Treasury Regulations Section 1.860G-2(b).
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(d) Notwithstanding anything to the contrary in this
Agreement, the Special Servicer may agree to any waiver, modification or
amendment of a Mortgage Loan that is not in default or as to which default is
not reasonably foreseeable only to the extent that it would not be a
"significant modification" of the Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b), provided that the proposed modification,
amendment or waiver will not cause (x) either the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or (y)
either the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax
under the REMIC Provisions. With respect to all modifications, amendments and
waivers entered into by the Special Servicer pursuant to this Section 3.20(d),
the Special Servicer shall provide the Trustee with an Opinion of Counsel (at
the expense of the related Mortgagor or such other Person requesting such
modification or, if such expense cannot be collected from the related Mortgagor
or such other Person, to be paid by the Servicer or the Trustee or Fiscal Agent,
as applicable, as a Servicing Advance) to the effect that the contemplated
waiver, modification or amendment (i) will not be a "significant modification"
of the Mortgage Loan within the meaning of Treasury Regulations Section
1.860G-2(b) and (ii) will not cause either clause (x) or (y) of this Section
3.20(d) to occur. Notwithstanding the foregoing, the Special Servicer may not
waive the payment of any Yield Maintenance Charge with respect to any Mortgage
Loan that is not a Specially Serviced Mortgage Loan.
(e) In the event of a modification to a Mortgage Loan that
creates Mortgage Deferred Interest, such Mortgage Deferred Interest will be
allocated to reduce the Distributable Certificate Interest of one or more
Classes of Certificates pursuant to Section 4.06(a) and will be added to the
Certificate Balance of such Class or Classes pursuant to Section 4.06(b).
(f) Subject to Section 3.20(c), the Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification, waiver or indulgence or any other matter or thing, the
granting of which is within the Servicer's or the Special Servicer's, as the
case may be, discretion pursuant to the terms of the instruments evidencing or
securing the related Mortgage Loan and is permitted by the terms of this
Agreement, require that such Mortgagor pay to the Servicer or the Special
Servicer, as the case may be, as additional servicing compensation, a reasonable
or customary fee, for the additional services performed in connection with such
request; provided, however, that the Special Servicer shall not be entitled to
compensation with respect to the assumption of any Mortgage Loan that is not a
Specially Serviced Mortgage Loan.
(g) All modifications, waivers and amendments of the Mortgage
Loans entered into pursuant to this Section 3.20 shall be in writing, signed by
the Servicer or the Special Servicer, as the case may be, and the related
Mortgagor (and by any guarantor of the related Mortgage Loan, if such
guarantor's signature is required by the Servicer or the Special Servicer, as
the case may be, in accordance with the Servicing Standard).
(h) Each of the Servicer and the Special Servicer shall notify
the Rating Agencies, the Trustee and each other and the Directing
Certificateholder in writing of any modification, waiver or amendment of any
term of any Mortgage Loan and the date thereof, and shall deliver to the Trustee
or the related Custodian for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly (and
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in any event within 10 Business Days) following the execution thereof. In
addition, the Special Servicer shall promptly send a copy of such a
modification, waiver or amendment to the Servicer. Within 15 days of the
Servicer's delivery of the aforesaid modification, waiver or amendment to the
Trustee or its receipt from the Special Servicer, as applicable, the Trustee
shall forward a copy thereof to each Holder of a Class F, Class G, Class H,
Class I, Class J and Class K Certificate.
SECTION 3.21. Transfer of Servicing Between Servicer and
Special Servicer; Record Keeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has
occurred with respect to any Mortgage Loan, the Servicer shall immediately give
notice thereof, and shall deliver the related Mortgage File and Credit File to
the Special Servicer and shall use its reasonable best efforts consistent with
the Servicing Standard to provide the Special Servicer with all information,
documents and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to the Mortgage Loan and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto. The Special Servicer may conclusively rely upon any such
documentation or information supplied to it by the Servicer, in the absence of
manifest error. The Servicer shall use its reasonable best efforts consistent
with the Servicing Standard to comply with the preceding sentence within 5
Business Days of the occurrence of each related Servicing Transfer Event and in
any event shall continue to act as Servicer and administrator of such Mortgage
Loan until the Special Servicer has commenced the servicing of such Mortgage
Loan, which will commence upon receipt by the Special Servicer of the Mortgage
File. The Trustee shall deliver to the Paying Agent, the Underwriter, the
Placement Agent and to each Holder of a Class F, Class G, Class H, Class I,
Class J and Class K Certificate a copy of the notice of such Servicing Transfer
Event provided by the Servicer to the Special Servicer pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan
(other than an REO Loan) has become current and has remained current for three
consecutive Monthly Payments (provided no additional Servicing Transfer Event is
foreseeable in the reasonable judgment of the Special Servicer), and that no
other Servicing Transfer Event is continuing with respect thereto, the Special
Servicer shall promptly give notice thereof, and shall return the related
Mortgage File and Credit File to the Servicer and upon giving such notice, and
returning such Mortgage File and Credit File to the Servicer, the Special
Servicer's obligation to service such Corrected Mortgage Loan shall terminate
and the obligations of the Servicer to fully service and administer such
Mortgage Loan shall recommence.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer will provide to the Trustee originals of documents included
within the definition of "Mortgage File" for inclusion in the related Mortgage
File (with a copy of each such original to the Servicer), and provide the
Servicer with copies of any additional related Mortgage Loan information
including correspondence with the related Mortgagor.
(c) No later than 3:00 p.m. Dallas time on the Business Day
immediately following each Determination Date, the Special Servicer shall
deliver to the Servicer and each
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Rating Agency the CSSA Standard Information Package (upon which the Servicer and
the Trustee may conclusively rely) describing, on a loan-by-loan and
property-by-property basis, (1) the information described in clause (iv) of
Section 4.02(a) with respect to each Specially Serviced Mortgage Loan and the
information described in clause (vii) and (viii) of Section 4.02(a) with respect
to each REO Property, (2) the amount of all payments, Insurance and Condemnation
Proceeds and Liquidation Proceeds received with respect to each Specially
Serviced Mortgage Loan during the related Due Period, and the amount of all REO
Revenues, Insurance and Condemnation Proceeds and Liquidation Proceeds received
by it with respect to each REO Property during the related Due Period, (3) the
amount, purpose and date of all Servicing Advances made by the Servicer with
respect to each Specially Serviced Mortgage Loan and REO Property during the
related Due Period, (4) the information described in clauses (iii), (iv)(C),
(iv)(D), (v), (xiii) and (xv) of Section 4.02(a) and (5) such additional
information relating to the Specially Serviced Mortgage Loans and REO Properties
as the Servicer reasonably requests to enable it to produce the CSSA Data Files
and CSSA Surveillance Reports and perform its responsibilities under this
Agreement which is in the Special Servicer's possession or is reasonably
obtainable by the Special Servicer.
(d) Notwithstanding the provisions of the preceding clause
(c), the Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and REO Properties and shall provide the
Special Servicer with any information in its possession reasonably required by
the Special Servicer to perform its duties under this Agreement.
(e) No later than 30 days after a Servicing Transfer Event for
a Mortgage Loan, the Special Servicer shall deliver to each Rating Agency, the
Servicer and the Directing Certificateholder a report (the "Asset Status
Report") with respect to such Mortgage Loan and the related Mortgaged Property.
Such Asset Status Report shall set forth the following information to the extent
reasonably determinable:
(i) summary of the status of such Specially Serviced
Mortgage Loan and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer,
consistent with the Servicing Standard, that are applicable to
the exercise of remedies as aforesaid and to the enforcement
of any related guaranties or other collateral for the related
Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or
operating statement available for the related Mortgaged
Property;
(iv) the Special Servicer's recommendations on how
such Specially Serviced Mortgage Loan might be returned to
performing status and returned to the Servicer for regular
servicing or otherwise realized upon including any proposed
actions pursuant to Section 3.09, 3.18 or 3.20;
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(v) the Appraised Value of the Mortgaged Property
together with the assumptions used in the calculation thereof;
provided, however, that in the event that the Servicer has
obtained an Appraisal with respect to the related Mortgaged
Property within the 12-month period immediately prior to the
Servicing Transfer Event and there has been no material change
to the Mortgaged Property that would affect the validity of
such Appraisal, the Special Servicer may use such prior
Appraisal in determining the Appraised Value of the Mortgaged
Property; and
(vi) such other information as the Special Servicer
reasonably deems relevant in light of the Servicing Standard.
If within 10 Business Days of receiving an Asset Status
Report, the Directing Certificateholder does not disapprove such Asset Status
Report in writing, the Special Servicer shall implement the recommended action
as outlined in such Asset Status Report; provided, however, that the Special
Servicer may not take any action that is contrary to applicable law or the terms
of the applicable Mortgage Loan documents. If the Directing Certificateholder
disapproves such Asset Status Report, the Special Servicer will revise such
Asset Status Report and deliver to the Directing Certificateholder, the Rating
Agencies and the Servicer a new Asset Status Report as soon as practicable, but
in no event later than 30 days after such disapproval. The Special Servicer
shall revise such Asset Status Report as described above in this Section 3.21(e)
until the Directing Certificateholder shall fail to disapprove such revised
Asset Status Report in writing within 10 Business Days of receiving such revised
Asset Status Report or until the Special Servicer makes one of the
determinations described below. The Special Servicer may, from time to time,
modify any Asset Status Report it has previously delivered and implement such
report, provided that such report shall have been prepared, reviewed and not
rejected pursuant to the terms of this Section; provided, however, that the
Special Servicer shall not make any material modifications to any Asset Status
Report without first having obtained the Directing Certificateholder's approval
as provided above in this paragraph.
Notwithstanding the foregoing, the Special Servicer (i) may,
following the occurrence of an extraordinary event with respect to the related
Mortgaged Property, take any action set forth in such Asset Status Report before
the expiration of a 10-Business Day period if the Special Servicer has
determined that failure to take such action would materially and adversely
affect the interests of the Certificateholders and it has made a reasonable
effort to contact the Directing Certificateholder and (ii) in any case, shall
determine whether such affirmative disapproval by the Directing
Certificateholder is not in the best interest of the Trust pursuant to the
Servicing Standard. The Special Servicer shall have the authority to meet with
the Mortgagor for any Specially Serviced Mortgage Loan and take action
consistent with the Servicing Standard and the related Asset Status Report.
No direction of the Directing Certificateholder, under this
Section 3.21 or otherwise under this Agreement, shall (a) require or cause the
Special Servicer to violate the terms of a Specially Serviced Mortgage Loan,
applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standard and to
maintain the REMIC status of each of the Lower-Tier REMIC and the Upper-Tier
REMIC, or
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(b) result in the imposition of a "prohibited transaction" or "prohibited
contribution" tax under the REMIC Provisions, or (c) expose the Servicer, the
Special Servicer, the Depositor, the Mortgage Loan Seller, the Trust Fund, the
Trustee, the Fiscal Agent or their officers, directors, employees or agents to
any claim, suit or liability, (d) materially expand the scope of the Special
Servicer's or the Servicer's responsibilities under this Agreement or cause or
direct the Special Servicer to act in a manner contrary to the Servicing
Standard or (e) cause or direct the Servicer to act in a manner contrary to the
Servicing Standard.
(f) Upon receiving notice of (i) the filing of a case under
any present or future federal or state bankruptcy, insolvency or similar law or
the commencing of any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings with respect to a Mortgage Loan or the
related Mortgagor or (ii) the request by a Mortgagor for the amendment or
modification of a Mortgage Loan other than an amendment or modification provided
for in the second paragraph in Sections 3.20(a) or 3.08(f), the Servicer shall
promptly give notice thereof, and shall deliver copies of the related Mortgage
File and Credit File to the Special Servicer and shall use its reasonable best
efforts consistent with the Servicing Standard to provide the Special Servicer
with all information relating to the Mortgage Loan and reasonably requested by
the Special Servicer to enable it to negotiate with the related Mortgagor and
prepare for any such proceedings. The Servicer shall use its reasonable best
efforts consistent with the Servicing Standard to comply with the preceding
sentence within 5 Business Days of the occurrence of each such event, and upon
receiving such documents and information, the Special Servicer shall use its
reasonable best efforts consistent with the Servicing Standard to cause the
related Mortgagor to cure any default and/or remedy any such event, work out or
modify the Mortgage Loan consistent with the terms of this Agreement, and/or
prepare for such proceedings. Notwithstanding the foregoing, the occurrence of
any of the above-referenced events shall not in and of itself be considered a
Servicing Transfer Event and, unless a Servicing Transfer Event has occurred
with respect to a related Mortgage Loan, the Servicer shall continue to act as
Servicer and administrator of such Mortgage Loan and no fees shall be payable to
the Special Servicer with respect to such Mortgage Loan other than any related
modification, assumption or extension fees provided for herein.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Servicer and the Special Servicer may each enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations under Articles III and IV hereof;
provided, however, that the Sub-Servicing Agreement: (i) is consistent with
this Agreement in all material respects and requires the Sub-Servicer to comply
with all of the applicable conditions of this Agreement; (ii) provides that if
the Servicer or the Special Servicer, as applicable, shall for any reason no
longer act in such capacity hereunder (including, without limitation, by reason
of an Event of Default), the Trustee or its designee shall thereupon assume all
of the rights and, except to the extent they arose prior to the date of
assumption, obligations of the Servicer or Special Servicer, as applicable,
under such agreement, or, alternatively, may act in accordance with Section
7.02 hereof under the circumstances described therein (subject to the
assumption requirements of Section 3.22(g) hereof); (iii) provides that the
Trustee for the benefit of the Certificateholders shall be a third
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party beneficiary under such Sub-Servicing Agreement, but that (except to the
extent the Trustee or its designee assumes the obligations of the Servicer or
Special Servicer, as applicable, thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trust Fund, the Trustee, any successor
Servicer, any successor Special Servicer or any Certificateholder shall have any
duties under such Sub-Servicing Agreement or any liabilities arising therefrom;
(iv) permits any purchaser of a Mortgage Loan pursuant to this Agreement to
terminate such Sub-Servicing Agreement with respect to such purchased Mortgage
Loan at its option and without penalty, (v) does not permit the Sub-Servicer any
direct rights of indemnification that may be satisfied out of assets of the
Trust Fund, (vi) does not permit the Sub-Servicer to amend Mortgage Loans
without the prior consent of the Servicer or Special Servicer that appointed it;
and (vii) provides that the Sub-Servicer cannot foreclose on Mortgaged Property
or sell REO Property without the prior consent of the Servicer or Special
Servicer that appointed it. Any successor Servicer or Special Servicer
hereunder, as applicable, shall, upon becoming successor Servicer or Special
Servicer, as applicable, be assigned and shall assume any Sub-Servicing
Agreements from the predecessor Servicer or Special Servicer, as applicable
(subject to the assumption requirements of Section 3.22(g) hereof). In addition,
each Sub-Servicing Agreement entered into by the Servicer may provide that the
obligations of the Sub-Servicer thereunder shall terminate with respect to any
Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes a
Specially Serviced Mortgage Loan. Each of the Servicer and the Special Servicer
shall deliver to the Trustee copies of all Sub-Servicing Agreements entered into
by them, and any amendments thereto and modifications thereof, entered into by
it promptly upon its execution and delivery of such documents. References in
this Agreement to actions taken or to be taken by the Servicer or the Special
Servicer, as applicable, include actions taken or to be taken by a Sub-Servicer
on behalf of the Servicer or the Special Servicer, as the case may be; and, in
connection therewith, all amounts advanced by any Sub-Servicer retained by the
Servicer to satisfy the obligations of the Servicer hereunder to make Advances
shall be deemed to have been advanced by the Servicer out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer in the same
manner and out of the same funds as if such Sub-Servicer were the Servicer, and,
for so long as they are outstanding, such Advances shall accrue interest in
accordance with Section 3.03(d), such interest to be allocable between the
Servicer and such Sub-Servicer retained by the Servicer pursuant to the terms of
the Sub-Servicing Agreement. For purposes of this Agreement, the Servicer shall
be deemed to have received any payment when a Sub-Servicer retained by it
receives such payment. The Servicer or Sub-Servicer (as the case may be) shall
notify the other party, the Trustee and the Depositor in writing promptly of the
appointment by it of any Sub-Servicer. The Special Servicer shall notify the
Servicer, the Trustee, the Depositor and each Rating Agency in writing promptly
of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the
Servicer and the Special Servicer, as applicable, for the benefit of the Trustee
and the Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust Fund) monitor the performance and
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enforce the obligations of each Sub-Servicer retained by it under the related
Sub-Servicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Sub-Servicing Agreements in
accordance with their respective terms and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Servicer would require were it the owner of the Mortgage Loans. Each
of the Servicer and the Special Servicer, as applicable, shall have the right to
remove a Sub-Servicer retained by it in accordance with the terms of the related
Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Servicer and assumes the rights and obligations of the Servicer under any
Sub-Servicing Agreement, the Servicer, at its expense, shall deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable best efforts consistent with the Servicing Standard to
effect the orderly and efficient transfer of the Sub-Servicing Agreement to the
assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing
Agreement or agreement described in subparagraph (i) below, each of the Servicer
and the Special Servicer represents and warrants that it shall remain obligated
and liable to the Trustee and the Certificateholders for the performance of its
obligations and duties under this Agreement in accordance with the provisions
hereof to the same extent and under the same terms and conditions as if it alone
were servicing and administering the Mortgage Loans for which it is responsible,
and the Servicer and the Special Servicer shall each pay the respective fees of
any Sub-Servicer retained by it thereunder from its own funds. In no event shall
the Trust Fund bear any termination fee required to be paid to any Sub-Servicer
as a result of such Sub-Servicer's termination under any Sub-Servicing
Agreement. In addition, the Servicer and the Special Servicer shall indemnify
the Trust Fund against any loss, damage or liability arising by reason of
willful misfeasance, bad faith or negligence in the performance of duties by any
Sub-Servicer appointed by it or by reason of negligent disregard by such
Sub-Servicer of obligations and duties under this Agreement and such
Sub-Servicing Agreement; provided, however, that the Servicer and the Special
Servicer, as applicable, shall not be required to indemnify any Sub-Servicer
that the Servicer or the Special Servicer, as the case may be, has not itself
selected for appointment.
(f) The Trustee shall furnish to any Sub-Servicer any powers
of attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer.
(g) Each Sub-Servicing Agreement shall provide that, in the
event the Trustee or any other Person becomes successor Servicer, the Trustee or
such successor Servicer shall have the right to terminate such Sub-Servicing
Agreement without a fee.
(h) Promptly after the execution of any Sub-Servicing
Agreement entered into by the Servicer, the Servicer shall forward a copy of
such Sub-Servicing Agreement to the Trustee, the Special Servicer and the
Depositor. The Special Servicer shall comply with the terms of each
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such Sub-Servicing Agreement to the extent the terms thereof are not
inconsistent with the terms of this Agreement and the Special Servicer's
obligations hereunder. With respect to Mortgage Loans subject to a Sub-Servicing
Agreement, the Special Servicer shall, among other things, remit amounts,
deliver reports and information, and afford access to facilities and information
to the related Sub-Servicer that would be required to be remitted, delivered or
afforded, as the case may be, to the Servicer pursuant to the terms hereof
within a sufficient period of time to allow the Sub-Servicer to fulfill its
obligations under such Sub-Servicing Agreement and in no event later than one
Business Day prior to the applicable Determination Date (or such other date as
specified herein).
(i) Notwithstanding anything to the contrary contained herein,
to the extent consistent with the Servicing Standard, the Servicer or Special
Servicer may retain qualified third parties to perform ministerial functions,
including tax monitoring, reconvenyances, inspections and similar functions
without requiring such party to execute a Sub-Servicing Agreement; provided that
notwithstanding any such appointment and any other provision herein to the
contrary, the Servicer or Special Servicer, as appropriate, will remain liable
for the performance of such functions hereunder.
(j) Promptly after the execution of any Sub-Servicing
Agreement entered into by the Special Servicer, the Special Servicer shall
forward a copy of such Sub-Servicing Agreement to the Trustee and the Servicer.
The Servicer shall comply with the terms of each such Sub-Servicing Agreement to
the extent the terms thereof are not inconsistent with the terms of this
Agreement and the Servicer's obligations hereunder.
SECTION 3.23. Representations and Warranties of the Servicer.
(a) The Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor and the Special Servicer and the Fiscal Agent, as of the Closing
Date, that:
(i) The Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware, and the Servicer is in compliance with the
laws of each State in which any Mortgaged Property is located
to the extent necessary to perform its obligations under this
Agreement;
(ii) The execution and delivery of this Agreement by
the Servicer, and the performance and compliance with the
terms of this Agreement by the Servicer, will not violate the
Servicer's formation documents as amended and restated, and
by-laws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable
to it or any of its assets, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the
Servicer or its property is subject;
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(iii) The Servicer has the full power and authority
to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery
and performance of this Agreement and has duly executed and
delivered this Agreement;
(iv) This Agreement, assuming due authorization,
execution and delivery by the Trustee and the Depositor,
constitutes a valid, legal and binding obligation of the
Servicer, enforceable against the Servicer in accordance with
the terms hereof, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and
general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) The Servicer is not in default with respect to
any law, any order or decree of any court, or any order,
regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences
that would materially and adversely affect the condition
(financial or other) or operations of the Servicer or its
properties or might have consequences that would materially
and adversely affect its ability to perform its duties and
obligations hereunder;
(vi) No litigation is pending or, to the best of the
Servicer's knowledge, threatened against the Servicer which
would prohibit the Servicer from entering into this Agreement
or, in the Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability
of the Servicer to perform its obligations under this
Agreement or the financial condition of the Servicer;
(vii) The Servicer will examine each Sub-Servicing
Agreement and will be familiar with the terms thereof. Any
Sub-Servicing Agreements will comply with the provisions of
Section 3.22;
(viii) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the execution, delivery and performance by the Servicer, or
compliance by the Servicer with, this Agreement or the
consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or
order which has not been obtained or cannot be obtained prior
to the actual performance by the Servicer of its obligations
under this Agreement, and which, if not obtained would not
have a materially adverse effect on the ability of the
Servicer to perform its obligations hereunder; and
(ix) The Servicer hereby covenants, to its best
knowledge, which may be based upon information obtained from
vendors who have responded to Servicer's supplier inquiries
and/or from information obtained by Servicer from sources
which Servicer reasonably believes are reliable, that by
August 31, 1999,
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any custom-made software or hardware designed or purchased or
licensed by Servicer, which Servicer has identified as being
mission-critical to its business for purposes of its
operations and for purposes of compiling, reporting or
generating data required by this Agreement, will be capable of
accurately performing calculations or other processing with
respect to dates after August 31, 1999 as a result of the
changing of the date from 1999 to 2000, including leap year
calculations, when used for the purpose for which it was
intended, assuming that all other products, including other
software or hardware, when used in combination with such
software or hardware designed or purchased or licensed by the
Servicer properly exchange date data.
(b) The representations and warranties set forth in paragraph
(a) above shall survive the execution and delivery of the Agreement. The
Servicer shall indemnify the Trustee, the Fiscal Agent and the Trust Fund and
hold each of them harmless against any losses, damages, penalties, fines,
forfeitures, and legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion arising from, or
resulting from a material breach of the Servicer's representations and
warranties contained in paragraph (a) above. Such indemnification shall survive
any termination or resignation of the Servicer, and any termination of the
Agreement.
SECTION 3.24. Representations and Warranties of the Special
Servicer.
(a) The Special Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor, the Servicer and the Fiscal Agent, as of the Closing Date, that:
(i) The Special Servicer is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Texas, and the Special Servicer is in
compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by
the Special Servicer, and the performance and compliance with
the terms of this Agreement by the Special Servicer, will not
violate the Special Servicer's charter and by-laws or
constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result
in the breach of, any material agreement or other instrument
to which it is a party or which is applicable to it or any of
its assets, or result in the violation of any law, rule,
regulation, order, judgment or decree which the Special
Servicer or its property is subject;
(iii) The Special Servicer has the full power and
authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement;
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(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto,
constitutes a valid, legal and binding obligation of the
Special Servicer, enforceable against the Special Servicer in
accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally
and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at
law;
(v) The Special Servicer is not in violation of, and
its execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement
will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or
regulatory authority, which violation, in the Special
Servicer's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the
Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer;
(vi) No litigation is pending or, to the best of the
Special Servicer's knowledge, threatened against the Special
Servicer which would prohibit the Special Servicer from
entering into this Agreement or, in the Special Servicer's
good faith and reasonable judgment is likely to materially and
adversely affect either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial
condition of the Special Servicer;
(vii) Each officer, director or employee of the
Special Servicer that has or, following the occurrence of a
Servicing Transfer Event, would have responsibilities
concerning the servicing and administration of Mortgage Loans
is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c). Neither the
Special Servicer nor any of its officers, directors or
employees that is or, following the occurrence of a Servicing
Transfer Event, would be involved in the servicing or
administration of Mortgage Loans has been refused such
coverage or insurance;
(viii) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the execution, delivery and performance by the Special
Servicer, or compliance by the Special Servicer with, this
Agreement or the consummation of the transactions contemplated
by this Agreement, except for any consent, approval,
authorization or order which has not been obtained or cannot
be obtained prior to the actual performance by the Special
Servicer of its obligations under this Agreement, and which,
if not obtained would not have a materially adverse effect on
the ability of the Special Servicer to perform its obligations
hereunder; and
(ix) Special Servicer hereby covenants, to its best
knowledge, which may be based upon information obtained from
vendors who have responded to Special Servicer's supplier
inquiries and/or from information obtained by Special
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Servicer from sources which Special Servicer reasonably
believes are reliable, that by August 31, 1999, any
custom-made software or hardware designed or purchased or
licensed by Special Servicer, which Special Servicer has
identified as being mission-critical to its business for
purposes of its operations and for purposes of compiling,
reporting or generating data required by this Agreement, will
be capable of accurately performing calculations or other
processing with respect to dates after August 31, 1999 as a
result of the changing of the date from 1999 to 2000,
including leap year calculations, when used for the purpose
for which it was intended, assuming that all other products,
including other software or hardware, when used in
combination with such software or hardware designed or
purchased or licensed by the Special Servicer properly
exchange date data.
(b) The representations and warranties set forth in paragraph
(a) above shall survive the execution and delivery of the Agreement. The Special
Servicer shall indemnify the Trustee, the Fiscal Agent and the Trust Fund and
hold them harmless against any losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from a material breach of the Special Servicer's representations and
warranties contained in paragraph (a) above. Such indemnification shall survive
any termination or resignation of the Special Servicer, and any termination of
the Agreement.
SECTION 3.25. Interest Reserve Account.
(a) The Servicer shall establish and maintain, or cause to be
established and maintained the Interest Reserve Account as an Eligible Account,
on behalf of the Trustee in trust for the benefit of the Certificateholders.
(b) On each Servicer Remittance Date relating to any Interest
Accrual Period ending in any January and on any Servicer Remittance Date
relating to any Interest Accrual Period ending in any December of a year
immediately preceding a leap year, in respect of the Interest Reserve Loans, the
Servicer shall deposit into the Interest Reserve Account an amount equal to one
day's interest on the Stated Principal Balance of the Interest Reserve Loans as
of the Due Date occurring in the month preceding the month in which such
Servicer Remittance Date occurs at the related Mortgage Rate), to the extent a
full Monthly Payment or P&I Advance is made in respect thereof (all amounts so
deposited in any consecutive February and January, "Withheld Amounts").
(c) On each Servicer Remittance Date occurring in March,
except in the case of the first Servicer Remittance Date, the Servicer shall
withdraw from the Interest Reserve Account an amount equal to the Withheld
Amounts from the preceding January, if any, and February, if any, and shall
remit such amount into the Lower-Tier Distribution Account.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
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SECTION 4.01. Distributions.
(a) On each Servicer Remittance Date, to the extent of the
Available Distribution Amount for such Distribution Date withdrawn from the
Certificate Account pursuant to Section 3.04(c), the Servicer shall transfer to
the Lower-Tier Distribution Account, and on each Distribution Date the Trustee
shall transfer the Lower-Tier Distribution Amount from the Lower-Tier
Distribution Account to the Upper-Tier Distribution Account in the amounts and
priorities set forth in Section 4.01(b) with respect to each class of
Uncertificated Lower-Tier Interests, and immediately thereafter, shall make
distributions thereof from the Upper-Tier Distribution Account in the following
order of priority, satisfying in full, to the extent required and possible, each
priority before making any distribution with respect to any succeeding priority:
(i) first, to the Holders of the Class A-1
Certificates, the Class A-2 Certificates and the Class X
Certificates, pro rata (based upon their respective
entitlements to interest for such Distribution Date), in
respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Classes of
Certificates for such Distribution Date;
(ii) second, (A) to the Holders of the Class A-1
Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount, until
the outstanding Certificate Balance of such Class has been
reduced to zero and (B) after the Certificate Balance of the
Class A-1 Certificates has been reduced to zero, to the
Holders of the Class A-2 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after
any distributions in respect of the Class A-1 Certificates on
such Distribution Date), until the outstanding Certificate
Balance of such Class has been reduced to zero;
(iii) third, to the Holders of the Class A-1
Certificates and the Class A-2 Certificates, pro rata (based
upon the aggregate unreimbursed Collateral Support Deficit
allocated to each such Class), until all amounts of Collateral
Support Deficit previously allocated to such Classes, but not
previously reimbursed, have been reimbursed in full;
(iv) fourth, to the Holders of the Class B
Certificates, in respect of interest, up to an amount equal to
the aggregate Interest Distribution Amount in respect of such
Class of Certificates for such Distribution Date;
(v) fifth, after the Certificate Balances of the
Class A-1 and Class A-2 Certificates have been reduced to
zero, to the Holders of the Class B Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A
Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class B Certificates has been
reduced to zero;
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(vi) sixth, to the Holders of the Class B
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class B Certificates, but not
previously reimbursed, have been reimbursed in full;
(vii) seventh, to the Holders of the Class C
Certificates, in respect of interest, up to an amount equal to
the aggregate Interest Distribution Amount in respect of such
Class of Certificates for such Distribution Date;
(viii) eighth, after the Certificate Balances of the
Class A-1, Class A-2 and Class B Certificates have been
reduced to zero, to the Holders of the Class C Certificates,
in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the
Class A and Class B Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class C
Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class C
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class C Certificates, but not
previously reimbursed, have been reimbursed in full;
(x) tenth, to the Holders of the Class D
Certificates, in respect of interest, up to an amount equal to
the aggregate Interest Distribution Amount in respect of such
Class of Certificates for such Distribution Date;
(xi) eleventh, after the Certificate Balances of the
Class A-1, Class A-2, Class B and Class C Certificates have
been reduced to zero, to the Holders of the Class D
Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect
of the Class A, Class B and Class C Certificates on such
Distribution Date), until the outstanding Certificate Balance
of the Class D Certificates has been reduced to zero;
(xii) twelfth, to the Holders of the Class D
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class D Certificates, but not
previously reimbursed, have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class E
Certificates, in respect of interest, up to an amount equal to
the aggregate Interest Distribution Amount in respect of such
Class of Certificates for such Distribution Date;
(xiv) fourteenth, after the Certificate Balances of
the Class A-1, Class A-2, Class B, Class C and Class D
Certificates have been reduced to zero, to the Holders of the
Class E Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount
(or the portion thereof remaining after any distributions in
respect of the Class A, Class B, Class C and
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Class D Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class E Certificates
has been reduced to zero;
(xv) fifteenth, to the Holders of the Class E
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class E Certificates, but not
previously reimbursed, have been reimbursed in full;
(xvi) sixteenth, to the Holders of the Class F
Certificates, in respect of interest, up to an amount equal to
the aggregate Interest Distribution Amount in respect of such
Class of Certificates for such Distribution Date;
(xvii) seventeenth, after the Certificate Balances of
the Class A-1, Class A-2, Class B, Class C, Class D and Class
E Certificates have been reduced to zero, to the Holders of
the Class F Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B. Class C,
Class D and Class E Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class F
Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of the Class F
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class F Certificates, but not
previously reimbursed, have been reimbursed in full;
(xix) nineteenth, to the Holders of the Class G
Certificates in respect of interest, up to an amount equal to
the aggregate Interest Distribution Amount in respect of such
Class of Certificates for such Distribution Date;
(xx) twentieth, after the Certificate Balances of the
Class A-1, Class A-2, Class B, Class C, Class D, Class E and
Class F Certificates have been reduced to zero, to the Holders
of the Class G Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C,
Class D, Class E and Class F Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class
G Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of the Class G
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class G Certificates, but not
previously reimbursed, have been reimbursed in full;
(xxii) twenty-second, to the Holders of the Class H
Certificates in respect of interest, up to an amount equal to
the aggregate Interest Distribution Amount in respect of such
Class of Certificates for such Distribution Date;
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(xxiii) twenty-third, after the Certificate Balances
of the Class A-1, Class A-2, Class B, Class C, Class D, Class
E, Class F and Class G Certificates have been reduced to zero,
to the Holders of the Class H Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G
Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class H Certificates has been
reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class H
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class H Certificates, but not
previously reimbursed, have been reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class I
Certificates in respect of interest, up to an amount equal to
the aggregate Interest Distribution Amount in respect of such
Class of Certificates for such Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances
of the Class A-1, Class A-2, Class B, Class C, Class D, Class
E, Class F, Class G and Class H Certificates have been reduced
to zero, to the Holders of the Class I Certificates, in
reduction of the Certificate Balance thereof, an amount equal
to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A,
Class B, Class C, Class D, Class E, Class E, Class G and Class
H Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class I Certificates
has been reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class I
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class I Certificates, but not
previously reimbursed, have been reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class J
Certificates in respect of interest, up to an amount equal to
the aggregate Interest Distribution Amount in respect of such
Class of Certificates for such Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances
of the Class A-1, Class A-2, Class B, Class C, Class D, Class
E, Class F, Class G, Class H and Class I Certificates have
been reduced to zero, to the Holders of the Class J
Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect
of the Class A, Class B, Class C, Class D, Class E, Class F,
Class G, Class H and Class I Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class
J Certificates has been reduced to zero;
(xxx) thirtieth, to the Holders of the Class J
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class J Certificates, but not
previously reimbursed, have been reimbursed in full;
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(xxxi) thirty-first, to the Holders of the Class K
Certificates in respect of interest, up to an amount equal to
the aggregate Interest Distribution Amount in respect of such
Class of Certificates for such Distribution Date;
(xxxii) thirty-second, after the Certificate Balances
of the Class A-1, Class A-2, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class I and Class J Certificates
have been reduced to zero, to the Holders of the Class K
Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect
of the Class A, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class I and Class J Certificates on such
Distribution Date), until the outstanding Certificate Balance
of the Class K Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class K
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class K Certificates, but not
previously reimbursed, have been reimbursed in full;
(xxxiv) thirty-fifth, to the Holders of the Class R
Certificates, the amount, if any, of the Available
Distribution Amount remaining in the Upper-Tier Distribution
Account with respect to such Distribution Date.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall receive distributions in respect of principal or reimbursement of
Collateral Support Deficit in an amount equal to the amount of principal or
reimbursement of Collateral Support Deficit actually distributable to its
respective Related Certificates as provided in Sections 4.01(a) and (c).
On each Distribution Date, each Uncertificated Lower-Tier
Interest shall receive distributions of interest as follows:
(A) the Class LA-1 Uncertificated Interest shall
receive distributions in respect of interest in an amount
equal to the sum of (i) the amount of interest actually
distributable on the Class A-1 Certificates and (ii) an amount
equal to the product of the Class LA-1 Interest Fraction and
the amount of interest distributable on the Class X
Certificates;
(B) the Class LA-2 Uncertificated Interest shall
receive distributions in respect of interest in an amount
equal to the sum of (i) the amount of interest actually
distributable on the Class A-2 Certificates and (ii) an amount
equal to the product of the Class LA-2 Interest Fraction and
the amount of interest distributable on the Class X
Certificates;
(C) the Class LB Uncertificated Interest shall
receive distributions in respect of interest in an amount
equal to the sum of (i) the amount of interest actually
distributable on the Class B Certificates and (ii) an amount
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equal to the product of the Class LB Interest Fraction and the
amount of interest distributable on the Class X Certificates;
(D) the Class LC Uncertificated Interest shall
receive distributions in respect of interest in an amount
equal to the sum of (i) the amount of interest actually
distributable on the Class C Certificates and (ii) an amount
equal to the product of the Class LC Interest Fraction and the
amount of interest distributable on the Class X Certificates;
(E) the Class LD Uncertificated Interest shall
receive distributions in respect of interest in an amount
equal to the sum of (i) the amount of interest actually
distributable on the Class D Certificates and (ii) an amount
equal to the product of the Class LD Interest Fraction and the
amount of interest distributable on the Class X Certificates;
(F) the Class LE Uncertificated Interest shall
receive distributions in respect of interest in an amount
equal to the sum of (i) the amount of interest actually
distributable on the Class E Certificates and (ii) an amount
equal to the product of the Class LE Interest Fraction and the
amount of interest distributable on the Class X Certificates;
(G) the Class LF Uncertificated Interest shall
receive distributions in respect of interest in an amount
equal to the sum of (i) the amount of interest actually
distributable on the Class F Certificates and (ii) an amount
equal to the product of the Class LF Interest Fraction and the
amount of interest distributable on the Class X Certificates;
(H) the Class LG Uncertificated Interest shall
receive distributions in respect of interest in an amount
equal to the sum of (i) the amount of interest actually
distributable on the Class G Certificates and (ii) an amount
equal to the product of the Class LG Interest Fraction and the
amount of interest distributable on the Class X Certificates;
(I) the Class LH Uncertificated Interest shall
receive distributions in respect of interest in an amount
equal to the sum of (i) the amount of interest actually
distributable on the Class H Certificates and (ii) an amount
equal to the product of the Class LH Interest Fraction and the
amount of interest distributable on the Class X Certificates;
(J) the Class LI Uncertificated Interest shall
receive distributions in respect of interest in an amount
equal to the sum of (i) the amount of interest actually
distributable on the Class I Certificates and (ii) an amount
equal to the product of the Class LI Interest Fraction and the
amount of interest distributable on the Class X Certificates;
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(K) the Class LJ Uncertificated Interest shall
receive distributions in respect of interest in an amount
equal to the sum of (i) the amount of interest actually
distributable on the Class J Certificates and (ii) an amount
equal to the product of the Class LJ Interest Fraction and the
amount of interest distributable on the Class X Certificates;
(L) the Class LK Uncertificated Interest shall
receive distributions in respect of interest in an amount
equal to the sum of (i) the amount of interest actually
distributable on the Class K Certificates and (ii) an amount
equal to the product of the Class LK Interest Fraction and the
amount of interest distributable on the Class X Certificates.
Such amounts distributed to the Uncertificated Lower-Tier Interests in respect
of principal and interest with respect to any Distribution Date are referred to
herein collectively as the "Lower-Tier Distribution Amount," and shall be made
by the Trustee by depositing such Lower-Tier Distribution Amount in the
Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto. The initial principal balance of each Uncertificated
Lower-Tier Interest equals the respective Original Lower-Tier Principal Amount.
The pass-through rate with respect to each Uncertificated Lower-Tier Interest
will be the rate per annum set forth in the Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account
on each Distribution Date after distribution of the Lower-Tier Distribution
Amount shall be distributed to the Holders of the Class LR Certificates (but
only to the extent of the Available Distribution Amount for such Distribution
Date remaining in the Lower-Tier Distribution Account, if any).
(c) On and after the Distribution Date on which the
Certificate Balances of the Subordinate Certificates have all been reduced to
zero (without regard to any amounts of Collateral Support Deficit remaining
unreimbursed), the Principal Distribution Amount will be distributed, pro rata
(based upon Certificate Balances), among the Class A Certificates without regard
to the priorities set forth in Section 4.01(a)(ii).
(d) On each Distribution Date, the Trustee shall withdraw from
the Lower-Tier Distribution Account an aggregate amount equal to all Yield
Maintenance Charges actually collected on the Mortgage Loans or any REO Loans
during the related Due Period and shall distribute such amount in respect of the
Class LA-1 Uncertificated Interest by depositing such amount in the Upper-Tier
Distribution Account (notwithstanding that all principal and interest
distributable with respect to the Class LA-1 Uncertificated Interest has been
paid in full).
(e) On each Distribution Date, until the Certificate Balances
of the Class A-1, Class A-2, Class B, Class C, Class D and Class E Certificates
have each been reduced to zero, the Trustee shall withdraw any amounts on
deposit in the Upper-Tier Distribution Account that represent Yield Maintenance
Charges actually collected on Mortgage Loans or REO Loans during the related Due
Period and remitted in respect of the Class LA-1 Uncertificated Interest
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pursuant to Section 4.01(d), and shall distribute to each of the Class A, Class
B, Class C, Class D and Class E Certificates, for each such Class an amount
equal to the product of (a) a fraction, the numerator of which is the amount of
principal distributed with respect to such Class pursuant to Section 4.01(a) on
such Distribution Date, and the denominator of which is the total amount of
principal distributed to all Classes of Certificates pursuant to Section 4.01(a)
on such Distribution Date, (b) the Base Interest Fraction for the related
principal prepayment and such Class of Certificates and (c) the aggregate amount
of Yield Maintenance Charges collected on such principal prepayment during the
related Due Period. Any Yield Maintenance Charges received during the related
Due Period with respect to such Mortgage Loans and remitted in respect of the
Class LA-1 Uncertificated Interest pursuant to Section 4.01(d) remaining after
such distributions shall be distributed on the Class X Certificates.
Notwithstanding anything to the contrary in this Agreement, on
each Distribution Date on and after the Senior Principal Distribution Cross-Over
Date, and in any event on the final Distribution Date in connection with the
termination of the Trust Fund, distributions of principal on the Class A-1
Certificates and the Class A-2 Certificates will be paid to holders of such two
Classes of Certificates, pro rata in accordance with their respective
Certificate Balances outstanding immediately prior to such Distribution Date,
until the Certificate Balance of each such Class of Certificates is reduced to
zero.
Following the reduction of the Certificate Balances of the
Class A-1, Class A-2, Class B, Class C, Class D and Class E Certificates to
zero, the Trustee shall distribute 100% of any Yield Maintenance Charges
actually received during the related Due Period with respect to such Mortgage
Loans and remitted in respect of the Class LA-1 Uncertificated Interest pursuant
to Section 4.01(d), to the Class X Certificates.
(f) On each Distribution Date, any Excess Interest collected
by the Servicer during the related Due Period shall be distributed to the Holder
of the Class L Certificates.
(g) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise specifically provided in Sections 4.01(g), 4.01(h) and 9.01, all such
distributions with respect to each Class on each Distribution Date shall be made
to the Certificateholders of the respective Class of record at the close of
business on the related Record Date and shall be made by wire transfer of
immediately available funds to the account of any such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
less than 5 Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in like Manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
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Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Paying
Agent, the Certificate Registrar, the Depositor, the Servicer, the Special
Servicer, the Underwriter, the Placement Agent or the Fiscal Agent shall have
any responsibility therefor except as otherwise provided by this Agreement or
applicable law.
(h) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall, no
later than the related P&I Advance Determination Date, mail to each Holder on
such date of such Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution
with respect to such Class of Certificates will be made on
such Distribution Date but only upon presentation and
surrender of such Certificates at the offices of the
Certificate Registrar or such other location therein
specified; and
(ii) no interest shall accrue on such Certificates
from and after such Distribution Date.
Any funds not distributed to any Holder or Holders of
Certificates of such Class on such Distribution Date because of the failure of
such Holder or Holders to tender their Certificates shall, on such date, be set
aside and held uninvested in trust and credited to the account or accounts of
the appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 4.01(g) shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee or the Paying Agent as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(g).
(i) Distributions in reimbursement of Collateral Support
Deficit previously allocated to the Regular Certificates shall be made in the
amounts and manner specified in
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Section 4.01(a) to the Holders of the respective Class otherwise
entitled to distributions of interest and principal on such Class on the
relevant Distribution Date; provided that all distributions in reimbursement of
Collateral Support Deficit previously allocated to a Class of Certificates which
has since been retired shall be to the prior Holders that surrendered the
Certificates of such Class upon retirement thereof and shall be made by check
mailed to the address of each such prior Holder last shown in the Certificate
Register. Notice of any such distribution to a prior Holder shall be made in
accordance with Section 11.05 at such last address. The amount of the
distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Trustee shall attempt to contact such prior Holder in the
manner contemplated by Section 4.01(g) as if such Holder had failed to surrender
its Certificates.
SECTION 4.02. Statements to Certificateholders; CSSA Standard
Information Package.
(a) On or before each Distribution Date, the Trustee shall
prepare a statement (substantially in the form set forth as Exhibit H hereto) as
to the distributions made on such Distribution Date (each, a "Distribution Date
Statement") setting forth:
(i) the amount of distributions, if any, made on such
Distribution Date to the holders of each Class of Certificates
in reduction of the Certificate Balance thereof;
(ii) the amount of distributions, if any, made on
such Distribution Date to the holders of such Class of
Certificates allocable to (A) Distributable Certificate
Interest and/or (B) Yield Maintenance Charges;
(iii) the number and the aggregate unpaid principal
balance of the Mortgage Loans at the close of business on the
related Determination Date;
(iv) the number and the aggregate unpaid principal
balance of the Mortgage Loans (A) delinquent 30-59 days, (B)
delinquent 60-89 days, (C) delinquent 90 days or more, (D)
that are Specially Serviced Mortgage Loans that are not
delinquent or (E) as to which foreclosure proceedings have
been commenced.
(v) with respect to any Mortgage Loans as to which
the related Mortgaged Property became an REO Property during
the preceding Due Period, the Stated Principal Balance and the
unpaid principal balance of such Mortgage Loan as of the date
on which such Mortgaged Property became an REO Property;
(vi) as to any Mortgage Loan repurchased by the
Mortgage Loan Seller or otherwise liquidated or disposed of
during the related Due Period, the loan number thereof and the
amount of proceeds of any repurchase of a Mortgage
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Loan, Liquidation Proceeds and/or other amounts, if any,
received thereon during the related Due Period and the
portion thereof included in the Available Distribution Amount
for such Distribution Date;
(vii) with respect to any REO Property included in
the Trust Fund as of the end of the related Due Period, the
value of such REO Property based on the most recent Appraisal
or valuation and the amount of any other income collected
with respect to any REO Property net of related expenses and
other amounts, if any, received on such REO Property during
the related Due Period;
(viii) with respect to any REO Property sold or
otherwise disposed of during the related Due Period, (A) the
loan number of the related Mortgage Loan and the amount of
sale proceeds and other amounts, if any, received in respect
of such REO Property during the related Due Period and the
portion thereof included in the Available Distribution Amount
and (B) the date of the related determination by the Special
Servicer that it has recovered all payments which it expects
to be fully recoverable;
(ix) the aggregate Certificate Balance of each Class
of Certificates before and after giving effect to the
distributions made on such Distribution Date, separately
identifying any reduction in the aggregate Certificate
Balance of each such Class due to Collateral Support Deficits
and any increase in the aggregate Certificate Balance due to
allocation of Certificate Deferred Interest;
(x) the aggregate amount of Unscheduled Principal
Distribution Amount received during the related Due Period;
(xi) the Pass-Through Rate for such Class of
Certificates for such Distribution Date;
(xii) the aggregate amount of the Servicing Fee,
Special Servicing Fee, Workout Fee, Liquidation Fee and any
other servicing or special servicing compensation retained by
or paid to the Servicer or the Special Servicer for the
related Due Period.
(xiii) the amount of Collateral Support Deficits, if
any, incurred with respect to the Mortgage Loans during the
related Due Period and in the aggregate for all prior Due
Periods (except to the extent reimbursed or paid);
(xiv) the aggregate amount of Servicing Advances and
P&I Advances outstanding which have been made by the
Servicer, the Trustee and the Fiscal Agent and the amounts of
interest accrued thereon;
(xv) the amount of any Appraisal Reduction allocable
to the related Due Period on a loan-by-loan basis and the
total Appraisal Reduction Amount as of such Distribution
Date; and
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(xvi) the amount of any Excess Interest included in
any payment on an ARD Loan.
In the case of information furnished pursuant to clauses (i), (ii), (ix) and
(xiii) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per Definitive Certificate.
On or before each Distribution Date, the Trustee shall prepare
a report in tabular form (the "Collateral Tabulation Report") containing
information regarding the Mortgage Loans as of the end of the related Due Period
setting forth substantially the categories of information regarding the Mortgage
Loans set forth in the charts and tables contained in the Prospectus
(calculated, where applicable, on the basis of the most recent relevant
information provided by the borrowers to the Servicer or the Special Servicer
and by the Servicer or the Special Servicer, as the case may be, to the
Trustee).
On each Distribution Date, the Trustee shall forward by mail
and/or make available via its internet site or electronic bulletin board, the
Distribution Date Statement and the Collateral Tabulation Report to all Holders
of each Class of Certificates, the Underwriter, each Rating Agency, the
Depositor, the Placement Agent, the Servicer, the Special Servicer and the
Fiscal Agent. In addition, the Trustee shall make the Distribution Date
Statement and the Collateral Tabulation Report available to certain financial
market publishers identified to the Trustee from time to time (which initially
shall be Intex Solutions, Inc., Trepp Group and Charter Research Corporation)
via its electronic bulletin board or its internet site located at
http://www.lnbabs.com and shall deliver the Distribution Date Statement and the
Collateral Tabulation Report via e-mail to Bloomberg, L.P.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall furnish to each Person who at any time during
the calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Trustee deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time are in force.
(b) With respect to each Distribution Date commencing on the
Distribution Date occurring in March 1999, the Servicer shall furnish to the
Trustee, the Depositor and each Rating Agency an accurate and complete CSSA
Standard Information Package no later than 4:00 p.m. Houston time on the second
Business Day after the related Determination Date. The CSSA Standard Information
Package shall be provided by the Servicer to the Trustee in such formats as the
Servicer and the Trustee may agree. The Trustee shall make the CSSA Standard
Information Package supplied by the Servicer available on its electronic
bulletin board and, as soon as capable, its internet site located at
http://www.lnbabs.com.
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The Trustee shall have no obligation to recompute, verify or
recalculate the information provided thereto by the Servicer in the CSSA
Standard Information Package.
(c) As soon as reasonably practicable, upon the written
request of any Certificateholder, the Trustee shall provide the requesting
Certificateholder with such information that is in the Trustee's possession or
can reasonably be obtained by the Trustee as is requested by such
Certificateholder, for purposes of satisfying applicable reporting requirements
under Rule 144A under the Securities Act.
(d) The Trustee shall make available to Persons who have
obtained an account number on the Trustee's ASAP (Automatic Statements Accessed
by Phone) System (or similar system), the reports described above in this
Section 4.02 and a summary report of Certificate Factors via automated
facsimile. The Trustee shall make available, upon request, to
Certificateholders, Certificate Owners identified to the reasonable satisfaction
of the Trustee, the Depositor, the Initial Purchaser, the Servicer, the Special
Servicer and the Rating Agencies account numbers on the Trustee's ASAP System
(or a similar system). In addition, if the Depositor so directs the Trustee and
on terms acceptable to the Trustee, the Trustee will make available through its
electronic bulletin board system, on a confidential basis, such information
related to the Mortgage Loans as the Depositor may reasonably request. A
directory has been set upon on the bulletin board in which an electronic file is
stored containing monthly servicer data. All files shall be password protected.
Passwords to each file will be released by the Trustee, upon request, to
Certificateholders, Certificate Owners identified to the reasonable satisfaction
of the Trustee, the Depositor, the Initial Purchaser, the Master Servicer, the
Special Servicer and the Rating Agencies. The Trustee also maintains a site on
the internet at www.lnbabs.com at which certain of the above information will be
available.
(e) The Trustee shall prepare, sign and file, on behalf of
the Depositor, any and all Exchange Act Reports; provided, however, that the
Depositor shall prepare, sign and file with the Commission the initial Form 8-K
relating to the Trust Fund. Each Exchange Act Report consisting of a monthly
Distribution Date Statement, Comparative Financial Status Report, Delinquent
Loan Status Report, Historical Loss Estimate Report, Historical Loan
Modification Report, REO Status Report, Operating Statement Analysis, Operating
Statement Analysis Worksheet, Watch List or report pursuant to Section 4.02(a)
shall be prepared as an exhibit or exhibits to a Form 8-K. Each Exchange Act
Report consisting of an Annual Report filed on Form 10-K shall identify the
aggregate number of Holders of Public Certificates and direct participants of
the Depository holding positions in Public Certificates as of December 31 (or
the nearest Business Day if such date is not a Business Day) of the related
year based on information provided by the Trustee. The Trustee shall provide
the Servicer and the Special Servicer with a list of Certificateholders and
direct participants of the Depository holding Public Certificates as of
December 31 of the related year no later than two Business Days prior to the
date on which the Servicer is required to deliver the related Exchange Act
Report to the Trustee. For each Exchange Act Report, the Trustee or the Special
Servicer, as applicable, shall prepare (i) a manually-signed paper version of
such report and (ii) an electronic version of such report, which version shall
be prepared as a Microsoft "Word for Windows" file (or in such other format as
the Trustee, the Depositor and the Servicer or the Special Servicer may agree),
that is suitable for
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filing via EDGAR. Exchange Act Reports consisting of (i) a monthly Distribution
Date Statement, a Comparative Financial Status Report, Delinquent Loan Status
Report, Historical Loss Estimate Report, Historical Loan Modification Report,
REO Status Report, Operating Statement Analysis, Operating Statement Analysis
Worksheet, Watch List, or other report pursuant to Section 4.02 shall be filed
within ten days after each Distribution Date; and (ii) an Annual Report on Form
10-K shall be filed on or prior to March 15 of each calendar year.
Manually-signed copies of each Exchange Act Report shall be delivered to the
Trustee.
All reports and notices to be filed by the Trustee, other than
the monthly Distribution Date Statements, shall be delivered by the Servicer to
the Trustee no later than 8 days after each Distribution Date, and shall be in
standard CSSA format or such other format that is mutually agreed by the Trustee
and the Servicer from time to time.
If information for any Exchange Act Report is incomplete by
the date on which such report is required to be filed under the Exchange Act,
the Trustee shall prepare and execute a Form 12b-25 under the Exchange Act. The
Trustee shall file the related report in electronic form when such information
is available.
If the requirements of Section 15(d) of the Exchange Act have
not been met, the Trustee shall suspend filing reports with the Commission as of
fiscal year 2000 and shall file Form 15 with the Commission no later than
January 30, 2000.
The Trustee shall solicit any and all proxies of the
Certificateholders whenever such proxies are required to be solicited pursuant
to the Exchange Act.
(f) The Servicer shall, in accordance with such reasonable
rules and procedures as it may adopt (which may include the requirement that an
agreement be executed, to the extent the Servicer deems such action to be
necessary or appropriate, to provide that such information shall be used solely
for purposes of evaluating the investment characteristics of the Certificates
and shall be used in accordance with applicable law governing securities), also
make available any additional information relating to the Mortgage Loans, the
Mortgaged Properties or the Mortgagors, for review by the Depositor, the
Underwriter, Rating Agencies and any other Persons to whom the Servicer believes
such disclosure is appropriate, in each case except to the extent doing so is
prohibited by applicable law or by any related Loan Documents related to a
Mortgage Loan.
(g) The Servicer and the Special Servicer shall make available
at its offices during normal business hours, or send to the requesting party at
the expense of each such requesting party (other than the Rating Agencies and
the Depositor) for review by the Depositor, the Trustee, the Rating Agencies,
the Underwriter and any other Persons, including any Certificateholder, to whom
the Servicer or the Special Servicer, as applicable, believes such disclosure to
be appropriate, the following items: (i) all financial statements, occupancy
information, rent rolls, retail sales information, average daily room rates and
similar information received by the Servicer or the Special Servicer, as
applicable, from each Borrower, (ii) the inspection reports prepared by or on
behalf of the Servicer or the Special Servicer, as applicable, in connection
with the property inspections pursuant to Section 3.12, (iii) any and all
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modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Servicer or the Special Servicer, as applicable, in accordance with
Sections 3.08 and 3.20 and (iv) any and all officer's certificates and other
evidence delivered to the Trustee and the Depositor to support the Servicer's
determination that any Advance was, or if made would be, a Nonrecoverable
Advance. Copies of any and all of the foregoing items shall be available, to the
extent in their possession, from the Servicer or the Special Servicer, as
applicable, or the Trustee, as applicable, upon request.
(h) Notwithstanding the obligations of the Servicer set forth
in the preceding provisions of this Section 4.02, the Servicer may withhold any
information not yet included in a Form 8-K filed with the Commission or
otherwise made publicly available with respect to which the Trustee or the
Servicer has determined that such withholding is appropriate.
(i) Notwithstanding any provisions in this Agreement to the
contrary, the Trustee shall not be required to review the content of any
Exchange Act Report for compliance with applicable securities laws or
regulations, completeness, accuracy or otherwise, and the Trustee shall have no
liability with respect to any Exchange Act Report filed with the Commission or
delivered to Certificateholders. None of the Servicer, the Special Servicer and
the Trustee shall be responsible for the accuracy or completeness of any
information supplied by a Borrower or a third party for inclusion in any Form
8-K, and each of the Servicer, the Special Servicer and the Trustee, and each of
their respective directors, officers, employees and agents shall be indemnified
and held harmless by the Trust Fund against any loss, liability or expense
incurred in connection with any legal action relating to any statement or
omission or alleged statement or omission therein. None of the Trustee, the
Special Servicer and the Servicer shall have any responsibility or liability
with respect to any Exchange Act Report filed by or on behalf of the Depositor,
and each of the Servicer, the Special Servicer and the Trustee shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
expense incurred in connection with any legal action relating to any statement
or omission or alleged statement or omission therein provided, however, that the
Servicer and the Special Servicer may not be so indemnified for any loss,
liabilities, damages or expenses caused by its willful misconduct, bad faith or
negligence.
(j) The Trustee represents that it will use reasonable
commercial reasonable best efforts to cure by August 1999 any deficiencies with
regard 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 reasonable best efforts to
obtain reasonable assurance 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 regard to the manipulation or calculation of dates beyond December 31, 1999
and such systems shall, as of August 1999, contain no deficiencies with regard
to the manipulation or calculation of dates beyond December 31, 1999 which would
materially and adversely affect the ability of the Trustee to perform its
obligations under this agreement.
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SECTION 4.03. P&I Advances.
(a) On or before 2:00 p.m., Houston time, on each Servicer
Remittance Date, the Servicer shall either (i) deposit into the Lower-Tier
Distribution Account from its own funds an amount equal to the aggregate amount
of P&I Advances, if any, to be made in respect of the related Distribution Date,
(ii) apply amounts held in the Certificate Account for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make P&I Advances or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made. Any
amounts held in the Certificate Account for future distribution and so used to
make P&I Advances shall be appropriately reflected in the Servicer's records and
replaced by the Servicer by deposit in the Certificate Account on or before the
next succeeding P&I Advance Determination Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal
and/or interest in respect of which such P&I Advances were made). With respect
to the Pari Passu Loan and the Related Trust Fund Mortgage Loan, and the
Servicing Retained Mortgage Loan and the Servicing Retained Paired Mortgage
Loan, P&I Advances will be allocated on the basis specified in the definitions
of "Appraised Value." The Servicer shall notify the Trustee and the Fiscal Agent
and the holder of the Pari Passu Loan (or the servicer designated by such
holder) by a certificate of the Servicing Officer of (i) the amount of any
Nonrecoverable P&I Advances for such Distribution Date, and (ii) the aggregate
amount of P&I Advances for a Distribution Date on or before the P&I Advance
Determination Date. If the Servicer fails to make a required P&I Advance by 2:00
p.m., Houston time, on any Servicer Remittance Date, an Event of Default as set
forth in clause (a)(i) of Section 7.01 shall occur and the Trustee shall make
such P&I Advance pursuant to Section 7.05, and if the Trustee fails to make such
P&I Advance by 11:00 a.m., Houston time, on such Distribution Date, the Fiscal
Agent shall make such P&I Advance pursuant to Section 7.05 by the close of
business, Houston time, on the Distribution Date. In the event that the Servicer
fails to make a required P&I Advance hereunder, the Paying Agent shall notify
the Trustee and the Fiscal Agent of such circumstances by 3:00 p.m. Houston time
on the related Servicer Remittance Date.
(b) Subject to Section 4.03(c) and (e) below, the aggregate
amount of P&I Advances to be made by the Servicer with respect to any
Distribution Date shall equal the aggregate of: (i) all Monthly Payments (in
each case, net of related Servicing Fees) other than Balloon Payments, that were
due during the related Due Period and delinquent as of the close of business on
the Business Day preceding the related Servicer Remittance Date or, in the case
of the Servicing Retained Mortgage Loan not advanced under the Servicing
Retained Servicing Agreement and (ii) with respect to each Mortgage Loan as to
which the related Balloon Payment was due during or prior to the related Due
Period and was delinquent as of the end of the related Due Period (including any
REO Loan as to which the Balloon Payment would have been past due), an amount
equal to the Assumed Scheduled Payment therefor. Subject to subsection (c)
below, the obligation of the Servicer to make such P&I Advances is mandatory,
and with respect to any Mortgage Loan or REO Loan, shall continue until the
Distribution Date on which the proceeds, if any, received in connection with a
Liquidation Event with respect thereto are to be distributed.
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(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance.
(d) In connection with the recovery of any P&I Advance out of
the Certificate Account pursuant to Section 3.05(a), the Servicer shall be
entitled to pay itself, the Trustee or the Fiscal Agent and as the case may be
(in reverse of such order with respect to any Mortgage Loan), out of any amounts
then on deposit in the Certificate Account, interest at the Reimbursement Rate
in effect from time to time, accrued on the amount of such P&I Advance from the
date made to but not including the date of reimbursement. The Servicer shall
reimburse itself, the Trustee or the Fiscal Agent, as the case may be, for any
outstanding P&I Advance as soon as practicably possible after funds available
for such purpose are deposited in the Certificate Account.
(e) Notwithstanding the foregoing, (i) none of the Servicer,
the Trustee and the Fiscal Agent shall be required to make an Advance for Excess
Interest or Yield Maintenance Charges and (ii) the amount required to be
advanced in respect of the interest portion of any delinquent Monthly Payment or
Assumed Scheduled Payment on a Mortgage Loan that has been subject to an
Appraisal Reduction Event will equal, with respect to any Distribution Date and
any Mortgage Loan, the amount that would be required to be advanced by the
Servicer in respect of interest without giving effect to the Appraisal Reduction
less the portion of any Appraisal Reduction Amount attributable to the interest
component of such Monthly Payment or Assumed Scheduled Payment with respect to
such Mortgage Loan for such Distribution Date.
SECTION 4.04. Allocation of Collateral Support Deficit.
(a) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the
Trustee or the Paying Agent shall calculate the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Mortgage Loans and any REO Loans
expected to be outstanding immediately following such Distribution Date, is less
than (ii) the then aggregate Certificate Balance of the Regular Certificates
after giving effect to distributions of principal on such Distribution Date and
the allocation of Certificate Deferred Interest pursuant to Section 4.06 (any
such deficit, the "Collateral Support Deficit"). Any allocation of Collateral
Support Deficit to a Class of Regular Certificates shall be made by reducing the
Certificate Balance thereof by the amount so allocated. Any Collateral Support
Deficit allocated to a Class of Regular Certificates shall be allocated among
the respective Certificates of such Class in proportion to the Percentage
Interests evidenced thereby. The allocation of Collateral Support Deficit shall
constitute an allocation of losses and other shortfalls experienced by the Trust
Fund. Reimbursement of previously allocated Collateral Support Deficit will not
constitute distributions of principal for any purpose and will not result in an
additional reduction in the Certificate Balance of the Class of Certificates in
respect of which any such reimbursement is made.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates will be reduced without distribution as a write-off to the
extent of any Collateral Support Deficit,
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if any, allocable to such Certificates with respect to such Distribution Date.
Any such write-off shall be allocated among the respective Certificates as
follows: first, to the Class K Certificates; second to the Class J Certificates;
third, to the Class I Certificates; fourth, to the Class H Certificates; fifth,
to the Class G Certificates; sixth, to the Class F Certificates; seventh, to the
Class E Certificates; eighth, to the Class D Certificates; ninth, to the Class C
Certificates; tenth, to the Class B Certificates, in each case, until the
remaining Certificate Balance of each such Class of Certificates has been
reduced to zero and tenth, to the Class A-1 Certificates and the Class A-2
Certificates, pro rata (based upon Certificate Balance), until the remaining
Certificate Balances of such Classes of Certificates have been reduced to zero.
(c) With respect to any Distribution Date, any Collateral
Support Deficit allocated to a Class of Certificates pursuant to Section 4.04(b)
with respect to such Distribution Date shall reduce the Lower-Tier Principal
Amount of the Related Uncertificated Lower-Tier Interest with respect thereto as
a write-off.
SECTION 4.05. Appraisal Reductions.
The aggregate Appraisal Reduction will be allocated by the
Trustee on each Distribution Date to the Certificate Balance of the Class K,
Class J, Class I, Class H, Class G, Class F, Class E, Class D, Class C and Class
B Certificates, in that order, up to the amount of their respective Certificate
Balances. On any Distribution Date, an Appraisal Reduction that otherwise would
be allocated to a Class of Certificates will be allocated to the next most
subordinate Class to the extent tha the Certificate Balance for such Class of
Certificates (prior to taking the Appraisal Reduction into account) is less than
the Appraisal Reduction Amount.
SECTION 4.06. Certificate Deferred Interest.
(a) On each Distribution Date, the amount of interest
distributable to a Class of Certificates (other than the Class X Certificates)
shall be reduced by an amount equal to the amount of Mortgage Deferred Interest
for all Mortgage Loans for the Due Dates occurring in the related Due Period
allocated to such Class of Certificates, such Mortgage Deferred Interest to be
allocated first to the Class K Certificates, second to the Class J Certificates,
third to the Class I Certificates, fourth to the Class H Certificates, fifth to
the Class G Certificates, sixth to the Class F Certificates, seventh to the
Class E Certificates, eighth to the Class D Certificates; ninth to the Class C
Certificates, tenth, to the Class B Certificates, and eleventh, pro rata (based
upon Accrued Certificate Interest), to the Class A-1 and Class A-2 Certificates,
in each case up to the respective Accrued Certificate Interest for each such
Class of Certificates for such Distribution Date.
(b) On each Distribution Date, the Certificate Balances of the
Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class I, Class J and Class K Certificates shall be increased by the
amount of the Certificate Deferred Interest allocated to such Class of
Certificates on such Distribution Date pursuant to Section 4.06(a) above.
(c) With respect to any Distribution Date, any Certificate
Deferred Interest with respect to such Distribution Date allocated pursuant to
Section 4.06(a) to a Class of Certificates
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shall be allocated in reduction of the amount of interest distributable to the
Related Uncertificated Lower-Tier Interest with respect thereto. On each
Distribution Date, to the extent provided in Section 4.06(b), Certificate
Deferred Interest will be added to the Lower-Tier Principal Amount of the
Uncertificated Lower-Tier Interests in the same manner as the interest thereon
was reduced pursuant to the preceding sentence.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective
forms annexed hereto as Exhibits A-1 through and including A-14. The
Certificates will be issuable in registered form only; provided, however, that
in accordance with Section 5.03, beneficial ownership interests in the Class A,
Class B, Class C, Class D, Class E and Class X Certificates shall initially be
held and transferred through the book-entry facilities of the Depository and, if
and for so long as they are accepted for trading through the PORTAL System, in
accordance with Section 5.03, beneficial interests in the Class F, Class G,
Class H, Class I, Class J and Class K Certificates also initially shall be held
and transferred through the book-entry facilities of the Depository. The Class
L, Class R and Class LR Certificates will each be issuable in one or more
registered, definitive physical certificates (each, a "Definitive Certificate")
substantially in the form of Certificates of each Class and with such applicable
legends as are set forth in the Exhibits hereto corresponding to such Class.
Each Certificate will share ratably in all rights of the related Class. The
Class X Certificates will be issuable only in minimum Denominations of
authorized initial Notional Amount of not less than $1,000,000 and in integral
multiples of $1,000 in excess thereof. The Offered Certificates (other than the
Class X Certificates) will be issuable only in minimum Denominations of
authorized initial Certificate Balance of not less than $25,000, and in integral
multiples of $1,000 in excess thereof. The Non-Public Certificates (other than
the Class L and Residual Certificates) will be issuable in minimum Denominations
of authorized initial Certificate Balance of not less than $250,000, and in
integral multiples of $1,000 in excess thereof. If the Original Certificate
Balance or initial Notional Amount, as applicable, of any Class does not equal
an integral multiple of $1,000, then a single additional Certificate of such
Class may be issued in a minimum denomination of authorized initial Certificate
Balance or initial Notional Amount, as applicable, that includes the excess of
(i) the Original Certificate Balance or initial Notional Amount, as applicable,
of such Class over (ii) the largest integral multiple of $1,000 that does not
exceed such amount.
(b) The Class L, Class R and Class LR Certificates will be
issuable only in one or more Definitive Certificates in denominations
representing Percentage Interests of not less than 25%.
(c) With respect to any Certificate or any beneficial interest
in a Certificate, the "Denomination" thereof shall be (i) the amount (a) set
forth on the face thereof or, (b) set forth on a schedule attached thereto or
(c) in the case of any beneficial interest in a Book-Entry Certificate, the
interest of the related Certificate Owner in the applicable Class of
Certificates as
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reflected on the books and records of the Depository or related Participants, as
applicable, (ii) expressed in terms of initial Certificate Balance or initial
Notional Amount, as applicable, and (iii) be in an authorized denomination, as
set forth above.
(d) The Book-Entry Certificates will be issued as one or more
certificates registered in the name of a nominee designated by the Depository,
and Certificate Owners will hold interests in the Book-Entry Certificates
through the book-entry facilities of the Depository in the minimum Denominations
and aggregate Denominations as set forth in the above. No Certificate Owner of a
Book-Entry Certificate of any Class thereof will be entitled to receive a
Definitive Certificate representing its interest in such Class, except as
provided in Section 5.03 herein. Unless and until Definitive Certificates are
issued in respect of a Class of Book-Entry Certificates, beneficial ownership
interests in such Class of Certificates will be maintained and transferred on
the book-entry records of the Depository and Depository Participants, and all
references to actions by Holders of such Class of Certificates will refer to
action taken by the Depository upon instructions received from the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures and, except as otherwise set forth
herein, all references herein to payments, notices, reports and statements to
Holders of such Class of Certificates will refer to payments, notices, reports
and statements to the Depository or its nominee as the registered Holder
thereof, for distribution to the related registered Holders of Certificates
through the Depository Participants in accordance with the Depository's
procedures.
(e) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized officer.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized officers of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. LaSalle National
Bank, is hereby initially appointed Authenticating Agent with power to act on
the Trustee's behalf in the authentication and delivery of the Certificates in
connection with transfers and exchanges as herein provided. If the
Authenticating Agent resigns or is terminated, the Trustee shall appoint a
successor Authenticating Agent which may be the Trustee or an Affiliate thereof.
Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
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SECTION 5.02. Registration of Transfer and Exchange of
Certificates.
(a) At all times during the term of this Agreement, there
shall be maintained at the office of the Certificate Registrar a Certificate
Register in which, subject to such reasonable regulations as the Certificate
Registrar may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. LaSalle National Bank is hereby initially appointed Certificate
Registrar for the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided. The Certificate Registrar may
appoint, by a written instrument delivered to the Depositor, the Trustee, the
Fiscal Agent, the Special Servicer and the Servicer, any other bank or trust
company to act as Certificate Registrar under such conditions as the predecessor
Certificate Registrar may prescribe; provided, however, that the predecessor
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment. If the Certificate
registrar resigns as Certificate Registrar, the Trustee shall immediately
succeed to its predecessor's duties as Certificate Registrar.
The Depositor, the Trustee, the Fiscal Agent, the Paying
Agent, the Servicer and the Special Servicer shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register. The names and addresses of
all Certificateholders and the names and addresses of the transferees of any
Certificates shall be registered in the Certificate Register; provided, however,
in no event shall the Certificate Registrar be required to maintain in the
Certificate Register the names of Certificate Owners.
The Person in whose name any Certificate is so registered
shall be deemed and treated as the sole owner and Holder thereof for all
purposes of this Agreement and the Certificate Registrar, the Servicer, the
Trustee, the Fiscal Agent, the Paying Agent, the Special Servicer and any agent
of any of them shall not be affected by any notice or knowledge to the contrary.
A Definitive Certificate is transferable or exchangeable only
upon the surrender of such Certificate to the Certificate Registrar at its
office maintained at 135 South LaSalle Street, Suite 1625, Chicago, Illinois
60674-4107 or at the Corporate Trust Office, if the Trustee is the Certificate
Registrar (the "Registrar Office") together with an assignment and transfer
(executed by the Holder or his duly authorized attorney). Subject to the
requirements of Sections 5.02(b), (c) and (d), the Certificate Registrar shall
execute and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
Denominations of a like aggregate Denomination as the Definitive Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e). Each Certificate surrendered for
registration of transfer shall be cancelled, and the Certificate Registrar shall
hold such cancelled Certificates in accordance with its standard procedures.
(b) If a transfer of Non-Public Securities (other than a
transfer by the Depositor to an Affiliate thereof) is to be made in reliance
upon an exemption from the Securities Act, and under applicable state securities
laws, the Certificate Registrar shall require (in the case of a
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Definitive Certificate) that the transferee deliver to the Certificate Registrar
an investment representation letter (the "Investment Representation Letter")
substantially in the form of Exhibit C attached hereto, which Investment
Representation Letter shall certify, among other things, that (subject to the
first proviso to this sentence) the transferee is an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act or an entity all of the equity owners of which come within
such paragraphs (an "Institutional Accredited Investor") or a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act (a
"Qualified Institutional Buyer"); provided, however, that no transfer of an
Ownership Interest in a Residual Certificate may be made to any person other
than a Qualified Institutional Buyer and that transfers of Non-Public
Certificates other than the Residual Certificates may be made only to Eligible
Investors; provided further that a transfer of a Non-Public Certificate may be
made to a trust that is otherwise eligible to purchase such Certificate if the
transferor provides to the Certificate Registrar and to the Trustee a
certification that interests in such trust may only be transferred subject to
requirements substantially to the effect set forth in this Section 5.02.
None of the Depositor, the Trustee, the Fiscal Agent, the
Servicer or the Certificate Registrar is obligated to register or qualify any
Class of Non-Public Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer of any Non-Public Certificate without registration or
qualification. Any Holder of a Non-Public Certificate desiring to effect such a
transfer shall, and does hereby agree to, indemnify the Depositor, the Trustee,
the Servicer and the Certificate Registrar against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
The Servicer will furnish, or cause to be furnished, upon the
request of any Holder of Non-Public Certificates, to a prospective purchaser of
such Non-Public Certificates who is a Qualified Institutional Buyer, such
information as is specified in paragraph (d)(4) of Rule 144A with respect to the
Trust Fund, unless, at the time of such request, the entity with respect to
which such information is to be provided is subject to the reporting
requirements of Section 15(d) of the Exchange Act.
Transfers of a beneficial interest in a Book-Entry Certificate
representing an interest in a Non-Public Certificate may be made to a Qualified
Institutional Buyer by means of the PORTAL System, which is an "SRO Rule 144A
System" approved for such purpose by the Commission.
Unless the Certificate Registrar determines otherwise in
accordance with applicable law and the rules and procedures of, or applicable
to, the Depository (the "Depository Rules"), transfers of a beneficial interest
in a Book-Entry Certificate representing an interest in a Non-Public Certificate
that is not rated in one of the top four rating categories by a NRSRO 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 foregoing provisions of this Section
5.02(b).
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Unless the Non-Public Certificates have been registered under
the Securities Act, each of the Non-Public Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, RESOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER
THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER
OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST
HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER
REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION
LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND
SERVICING AGREEMENT.
Unless the Non-Public Certificates (other than the Residual
Certificates) have been registered under the Securities Act, each of such
Certificates shall bear a legend substantially to the following effect:
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE
WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (B) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR") WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (OR
AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR
OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF
THIS CERTIFICATE.
Unless the Residual Certificates have been registered under
the Securities Act, each of such Certificates shall bear a legend substantially
to the following effect:
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE
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EXCEPT IN ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND FOR
SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
SUBJECT TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
(c) With respect to the Subordinate Certificates and Class L
Certificates, no sale, transfer, pledge or other disposition by any Holder of
any such Certificate that is a Definitive Certificate shall be made unless the
Certificate Registrar shall have received either (i) a representation letter
from the proposed purchaser or transferee of such Certificate substantially in
the form of Exhibit G attached hereto, to the effect that such proposed
purchaser or transferee is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of ERISA or Section 4975 of the Code, or a
governmental plan (as defined in Section 3(32) of ERISA) subject to any federal,
state or local law ("Similar Law") which is, to a material extent, similar to
the foregoing provisions of ERISA or the Code (each a "Plan") or (b) a person
acting on behalf of or using the assets of any such Plan (including an entity
whose underlying assets include Plan assets by reason of investment in the
entity by such Plan and the application of Department of Labor Regulation ss.
2510.3-101), other than an insurance company using the assets of its general
account under circumstances whereby the purchase and holding of such
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Prohibited Transaction
Exemption 90-33, as amended by Prohibited Transaction Exemption 97-34 or (ii) if
such Certificate is presented for registration in the name of a purchaser or
transferee that is any of the foregoing, an Opinion of Counsel in form and
substance satisfactory to the Certificate Registrar and the Depositor to the
effect that the acquisition and holding of such Certificate by such purchaser or
transferee will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the fiduciary responsibility provisions of ERISA,
the prohibited transaction provisions of the Code or the provisions of any
Similar Law, will not constitute or result in a "prohibited transaction" within
the meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Fiscal Agent, the Certificate Registrar, the Servicer,
the Special Servicer, the Paying Agent, the Underwriter, the Placement Agent or
the Depositor to any obligation or liability (including obligations or
liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in
addition to those set forth in the Agreement. The Certificate Registrar shall
not register the sale, transfer, pledge or other disposition of any such
Definitive Certificate unless the Certificate Registrar has received either the
representation letter described in clause (i) above or the Opinion of Counsel
described in clause (ii) above. The costs of any of the foregoing representation
letters or Opinions of Counsel shall not be borne by any of the Depositor, the
Servicer, the Special Servicer, the Trustee, the Fiscal Agent, the Paying Agent,
the Underwriter, the Placement Agent, the Certificate Registrar or and the Trust
Fund. Each Certificate Owner of a Subordinate Certificate shall be deemed to
represent that it is not a Person specified in clauses (a) or (b) above. Any
transfer, sale, pledge or other disposition of any such Certificates that would
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constitute or result in a prohibited transaction under ERISA, Section 4975 of
the Code or any Similar Law, or would otherwise violate the provisions of this
Section 5.02(c) shall be deemed absolutely null and void ab initio, to the
extent permitted under applicable law.
With respect to the transfer of any Subordinated Certificate
that is a Book-Entry Certificate, the transferee or purchaser thereof, or of any
beneficial interest therein, by accepting the transfer of such Certificate or
interest therein, represents and warrants to the Depositor, Trustee, Fiscal
Agent, Paying Agent, Certificate Registrar, Servicer, Special Servicer and
transferor thereof that it is not (a) a Plan or (b) a person acting on behalf of
or using the assets of any such Plan (including an entity whose underlying
assets include Plan assets by reason of investment in the entity by such Plan
and the application of Department of Labor Regulation ss. 2510.3-101), other
than an insurance company using the assets of its general account under
circumstances whereby the purchase and holding of such Certificates by such
insurance company would be exempt from the prohibited transaction provisions of
ERISA and the Code under Prohibited Transaction Exemption 90-33, as amended by
Prohibited Transaction Exemption 97-34. Any transfer, sale, pledge or other
disposition of any such Certificates as to which such representation is false,
or that otherwise would constitute or result in a prohibited transaction under
ERISA, Section 4975 of the Code or any Similar Law, or would otherwise violate
the provisions of this Section 5.02(c), shall be deemed absolutely null and void
ab initio, to the extent permitted under applicable law.
So long as any of the Class of Certificates remains
outstanding, the Servicer will make available, or cause to be made available,
upon request, to any Holder and any Person to whom any such Certificate of any
such Class of Certificates may be offered or sold, transferred, pledged or
otherwise disposed of by such Holder, information with respect to the Servicer,
the Special Servicer or the Mortgage Loans necessary to the provision of an
Opinion of Counsel described in this Section 5.02(c).
Each of the Subordinate Certificates and Class L Certificates shall
bear a legend substantially to the following effect:
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT
REPRESENTATION LETTER FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH
CERTIFICATE, IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT SUCH PROPOSED PURCHASER
OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A
PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN
(INCLUDING AN ENTITY WHOSE
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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.
(d) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Paying Agent under clause (ii) below to
deliver payments to a Person other than such Person. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) No Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Disqualified
Organization or agent thereof (including a nominee, middleman
or similar person) (an "Agent"), a Plan or a Person acting on
behalf of or investing the assets of a Plan (such Plan or
Person, an "ERISA Prohibited Holder") or a Non-U.S. Person and
shall promptly notify the Servicer, the Trustee and the
Certificate Registrar of any change or impending change to
such status;
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Certificate
Registrar shall require delivery to it, and no Transfer of any
Residual Certificate shall be registered until
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the Certificate Registrar receives, an affidavit substantially
in the form attached hereto as Exhibit D-1 (a "Transfer
Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such
Transferee is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and
that it has reviewed the provisions of this Section 5.02(d)
and agrees to be bound by them;
(C) Notwithstanding the delivery of a Transfer
Affidavit by a proposed Transferee under clause (b) above, if
the Certificate Registrar has actual knowledge that the
proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no
Transfer of an Ownership Interest in a Residual Certificate to
such proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (1) to require
a Transfer Affidavit from any prospective Transferee to whom
such Person attempts to transfer its Ownership Interest in
such Residual Certificate and (2) not to transfer its
Ownership Interest in such Residual Certificate unless it
provides to the Certificate Registrar a letter substantially
in the form attached hereto as Exhibit D-2 (a "Transferor
Letter") certifying that, among other things, it has no actual
knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a
Holder of a Residual Certificate in violation of the
provisions of this Section 5.02(d), then the last preceding
Holder of such Residual Certificate that was in compliance
with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder
thereof retroactive to the date of registration of such
Transfer of such Residual Certificate. None of the Trustee,
the Servicer, the Authenticating Agent and the Certificate
Registrar shall be under any liability to any Person for any
registration of Transfer of a Residual Certificate that is in
fact not permitted by this Section 5.02(d) or for making any
payments due on such Certificate to the Holder thereof or for
taking any other action with respect to such Holder under the
provisions of this Agreement; provided, however, that the
Certificate Registrar shall be under such liability for a
registration of Transfer of a Residual Certificate if it has
actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person in violation of Section
5.02(d)(i)(C) above.
(iii) The Servicer shall make available to the
Internal Revenue Service and those Persons specified by the
REMIC Provisions, upon written request of the Trustee, all
information in its possession and necessary to compute any tax
imposed as a result of the Transfer of an Ownership Interest
in a Residual Certificate to any Person who is a Disqualified
Organization or Agent thereof,
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including the information described in Treasury Regulations
sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the
"excess inclusions" of such Residual Certificate.
(e) Subject to the restrictions on transfer and exchange set
forth in this Section 5.02, the Holder of any Definitive Certificate may
transfer or exchange the same in whole or in part (with a Denomination equal to
any authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Depository Rules, any Certificate Owner owning a beneficial interest in a
Non-Public Certificate may cause the Certificate Registrar to request that the
Depository exchange such Certificate Owner's beneficial interest in a Book-Entry
for a Definitive Certificate or Certificates. Following a proper request for
transfer or exchange, the Certificate Registrar shall, within 5 Business Days of
such request if made at such Registrar Office, or within 10 Business Days if
made at the office of a transfer agent (other than the Certificate Registrar),
execute and deliver at such Registrar Office or at the office of such transfer
agent, as the case may be, to the transferee (in the case of transfer) or Holder
(in the case of exchange) or send by first class mail (at the risk of the
transferee in the case of transfer or Holder in the case of exchange) to such
address as the transferee or Holder, as applicable, may request, a Definitive
Certificate or Certificates, as the case may require, for a like aggregate
Denomination and in such Denomination or Denominations as may be requested. The
presentation for transfer or exchange of any Definitive Certificate shall not be
valid unless made at the Registrar Office or at the office of a transfer agent
by the registered Holder in person, or by a duly authorized attorney-in-fact.
The Certificate Registrar may decline to accept any request for an exchange or
registration of transfer of any Certificate during the period of 15 days
preceding any Distribution Date.
(f) In the event a Responsible Officer of the Certificate
Registrar becomes aware that (i) a Definitive Certificate (other than a
Definitive Certificate issued in exchange for a Certificate representing an
interest in the Class A-1, Class A-2, Class B, Class C, Class D, Class E or
Class X Certificates) is being held by or for the benefit of a Person who is not
an Eligible Investor or (ii) that (A) a beneficial interest in a Book-Entry
Certificate representing a Non-Public Certificate or (B) any Residual
Certificate is held by or for the benefit of a Person who is not a Qualified
Institutional Buyer or (iii) that such holding is unlawful under the laws of a
relevant jurisdiction, then the Certificate Registrar shall have the right to
void such transfer, if permitted under applicable law, or to require the
investor to sell such Definitive Certificate or beneficial interest in such
Book-Entry Certificate to an Eligible Investor (in the case of a circumstance
described in clause (i) or (iii) above) or to a QIB (in the case of a
circumstance described in clause (ii) above) within 14 days after notice of such
determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
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(g) The Certificate Registrar shall provide to the Trustee,
the Servicer, the Special Servicer, the Paying Agent and the Depositor, upon
request of any such party, an updated copy of the Certificate Register.
(h) No fee or service charge shall be imposed by the
Certificate Registrar for its services in respect of any registration of
transfer or exchange referred to in this Section 5.02 except as provided below.
In connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(i) All Certificates surrendered for transfer and exchange
shall be physically cancelled by the Certificate Registrar, and the Certificate
Registrar shall hold such cancelled Certificates procedures.
SECTION 5.03. Book-Entry Certificates.
(a) The Regular Certificates sold to Qualified Institutional
Buyers shall initially be issued as one or more Certificates registered in the
name of the Depository or its nominee and, except as provided in subsection (c)
below, transfer of such Certificates may not be registered by the Certificate
Registrar unless such transfer is to a successor Depository that agrees to hold
such Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(e) above or
subsection (c) below, shall not be entitled to Definitive Certificates in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Servicer, the Special Servicer, the
Paying Agent, the Fiscal Agent, the Depositor and the Certificate Registrar may
for all purposes, including the making of payments due on the Book-Entry
Certificates, deal with the Depository as the authorized representative of the
Certificate Owners with respect to such Certificates for the purposes of
exercising the rights of Certificateholders hereunder. The rights of Certificate
Owners with respect to the Book-Entry Certificates shall be limited to those
established by law and agreements between such Certificate Owners and the
Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository as
Holder of the Book-Entry Certificates with respect to any particular matter
shall not be deemed inconsistent if they are made with respect to different
Certificate Owners.
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The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee, the Paying
Agent and the Certificate Registrar in writing that the Depository is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Certificates and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee, the Paying
Agent and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository with respect to all, any Class or any
portion of any Class of the Certificates or (iii) the Trustee determines that
Definitive Certificates are required in accordance with the provisions of
Section 5.03(e), the Paying Agent shall notify the affected Certificate Owners
of the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Depository or any
custodian acting on behalf of the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, within 5 Business Days of such request if made at the Registrar Office,
or within 10 Business Days if made at the office of a transfer agent (other than
the Certificate Registrar), the Definitive Certificates to the Certificate
Owners identified in such instructions. None of the Depositor, the Paying Agent,
the Servicer, the Trustee, the Fiscal Agent, the Special Servicer, the
Authenticating Agent and the Certificate Registrar shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Class of Certificates,
the registered Holders of such Definitive Certificates shall be recognized as
Certificateholders hereunder and, accordingly, shall be entitled directly to
receive payments on, to exercise Voting Rights with respect to, and to transfer
and exchange such Definitive Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Certificate Registrar for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
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(e) If the Trustee has instituted or has been directed to
institute any judicial proceeding in a court to enforce the rights of the
Certificateholders under the Certificates, and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or appropriate
for the Trustee to obtain possession of all or any portion of the Certificates
evidenced by Book-Entry Certificates, the Trustee may in its sole discretion
determine that such Certificates shall no longer be represented by such
Book-Entry Certificates. In such event, the Certificate Registrar will execute,
the Authenticating Agent will authenticate and the Certificate Registrar will
deliver, in exchange for such Book-Entry Certificates, Definitive Certificates
in a Denomination equal to the aggregate Denomination of such Book-Entry
Certificates to the party so requesting such Definitive Certificates. In such
event, the Trustee shall notify the affected Certificate Owners and make
appropriate arrangements for the effectuation of the purpose of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such scheduled affixed
to such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Definitive Certificate issued in exchange therefor or upon
transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in the Book-Entry Certificate, such transfer
may be effected only in accordance with Depository Rules and this Section
5.03(g). Upon receipt by the Certificate Registrar at the Registrar Office of
(i) the Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), (ii) written instructions given in accordance with
Depository Rules directing the Certificate Registrar to credit or cause to be
credited to another account a beneficial interest in the related Book-Entry
Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interest and (iv) if the affected Certificate is a
Non-Public Certificate, an Investment Representation Letter from the transferee
to the effect that such transferee is a Qualified Institutional Buyer, the
Certificate Registrar shall cancel such Definitive Certificate, execute and
deliver a new Definitive Certificate for the Denomination of the Definitive
Certificate not so transferred, registered in the name of the Holder or the
Holder's transferee (as instructed by the Holder), and the Certificate Registrar
shall instruct the Depository or the custodian holding such Book-Entry
Certificate on behalf of the Depository to increase the Denomination of the
related Book-Entry Certificate by the Denomination of the Definitive Certificate
to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a corresponding Denomination of such
Book-Entry Certificate.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (ii) there
is delivered to the Trustee and the Certificate Registrar such security or
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indemnity as may be required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and of like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar and any agents of any
of them may treat the person in whose name such Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 9.01 and for all other purposes whatsoever, except as and to the extent
provided in the definition of "Certificateholder," and none of the Depositor,
the Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate Registrar and any agent of any of them shall be affected by notice
to the contrary except as provided in Section 5.02(d).
SECTION 5.06. Appointment of Paying Agent.
LaSalle National Bank is hereby initially appointed Paying
Agent. If the Paying Agent resigns or is terminated, the Trustee shall appoint a
successor Paying Agent which may be an Affiliate thereof; provided, however,
that if the Trustee resigns as Paying Agent in connection with its resignation
as Trustee pursuant to Section 8.07, the Depositor shall appoint a successor
Paying Agent. Any Paying Agent will hold funds it received in such capacity only
in Eligible Accounts.
ARTICLE VI
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and the
Special Servicer.
The Depositor, the Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and the
Special Servicer herein.
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SECTION 6.02. Merger, Consolidation or Conversion of the
Depositor, the Servicer or the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the
Servicer and the Special Servicer each will keep in full effect its existence,
rights and franchises as a corporation or limited liability company, as the case
may be, under the laws of the jurisdiction of its incorporation or organization,
and each will obtain and preserve its qualification to do business as a foreign
entity in each jurisdiction in which such qualification is or shall be necessary
to protect the validity and enforceability of this Agreement, the Certificates
or any of the Mortgage Loans and to perform its respective duties under this
Agreement.
(b) The Depositor, the Servicer and the Special Servicer each
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets to any Person, in which case any Person
resulting from any merger or consolidation to which the Depositor, the Servicer
or the Special Servicer shall be a party, or any Person succeeding to the
business of the Depositor, the Servicer or the Special Servicer, shall be the
successor of the Depositor, the Servicer and the Special Servicer, as the case
may be, hereunder, without the execution or filing of any paper (other than an
assumption agreement wherein the successor shall agree to perform the
obligations of and serve as the Depositor, the Servicer or the Special Servicer,
as the case may be, in accordance with the terms of this Agreement) or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that such merger, consolidation or
succession will not result in a withdrawal, downgrading or qualification of the
then-current ratings of the Classes of Certificates that have been so rated (as
evidenced by a letter to such effect from each Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the
Servicer, the Special Servicer and Others.
(a) Neither the Depositor, the Servicer, the Special Servicer
nor any of the directors, officers, employees or agents of any of the foregoing
shall be under any liability to the Trust or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Servicer, the Special
Servicer or any such Person against any breach of warranties or representations
made herein or any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of negligent disregard of obligations and duties hereunder. The
Depositor, the Servicer, the Special Servicer and any director, officer,
manager, member, employee or agent of the Depositor, the Servicer or the Special
Servicer may rely in good faith on any document of any kind which, prima facie,
is properly executed and submitted by any Person respecting any matters arising
hereunder.
The Depositor, the Servicer, the Special Servicer and any
director, officer, manager, member, employee or agent of any of the foregoing
shall be indemnified and held harmless by the Trust against any loss, liability,
expense, penalties, fines, forfeitures, legal fees and related costs incurred in
connection with any legal action or proceeding relating to this Agreement or the
Certificates (including any legal action or proceeding arising from the
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performance of its duties hereunder), other than any loss, liability or expense:
(i) specifically required to be borne thereby pursuant to the terms hereof; (ii)
incurred in connection with any breach of a representation, warranty or covenant
made by it herein; (iii) incurred by reason of bad faith, willful misconduct or
negligence in the performance of its obligations or duties hereunder, or by
reason of negligent disregard of such obligations or duties or (iv) in the case
of the Depositor and any of its directors, officers, employees and agents,
incurred in connection with any violation by any of them of any state or federal
securities law.
The Retained Servicing Servicer, the Retained Servicing
Special Servicer and any director, officer, manager, member, employee or agent
of either of them shall be indemnified and held harmless by the Trust against
any loss, liability or expense incurred in connection with any legal action or
proceeding relating to this Agreement and the Servicing Retained Servicing
Agreement, and relating to the servicing of the Servicing Retained Mortgage
Loan, other than any loss, liability or expense: (i) specifically required to be
borne thereby pursuant to the terms of the Servicing Retained Servicing
Agreement; (ii) incurred in connection with any breach of a representation,
warranty or covenant made by it in the Servicing Retained Servicing Agreement;
or (iii) incurred by reason of bad faith, willful misconduct or negligence in
the performance of its obligations or duties under the Servicing Retained
Servicing Agreement, or by reason of negligent disregard of such obligations or
duties, and with respect to any such indemnification relating to both the
Servicing Retained Paired Mortgage Loan and the Servicing Retained Mortgage
Loan, only to the extent of the pro rata portion of such amounts relating to the
Servicing Retained Mortgage Loan (on the basis set forth in the definition of
"Appraised Value" herein).
(b) None of the Depositor, the Servicer and the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action, proceeding, hearing or examination that is not
incidental to its respective duties under this Agreement and which in its
opinion may involve it in any expense or liability; provided, however, that the
Depositor, the Servicer or the Special Servicer may in its discretion undertake
any such action, proceeding, hearing or examination that it may deem necessary
or desirable in respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action, proceeding, hearing or
examination and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Servicer and the Special
Servicer shall be entitled to be reimbursed therefor out of amounts attributable
to the Mortgage Loans on deposit in the Certificate Account as provided in this
Section 6.0 by Section 3.05(a); provided, however, that neither the Depositor,
the Servicer nor the Special Servicer may be reimbursed for any expenses in
circumstances where they would not otherwise be entitled to indemnification
under this Agreement.
(c) Each of the Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trustee, the Fiscal Agent and the Trust and any
director, officer, employee or agent thereof, and hold them harmless, from and
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that any of them may sustain arising from or as a result of any willful
misfeasance, bad
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faith or negligence of the Servicer or the Special Servicer, as the case may be,
in the performance of its obligations and duties under this Agreement (including
acts or omissions occurring in their capacity as agent for the Trustee) or by
reason of reckless disregard by the Servicer or the Special Servicer, as the
case may be, of its duties and obligations hereunder or by reason of breach of
any representations or warranties made herein. The Trustee, the Depositor or the
Fiscal Agent, as the case may be, shall immediately notify the Servicer or the
Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling it to indemnification
hereunder, whereupon the Servicer or the Special Servicer, as the case may be,
shall assume the defense of such claim (with counsel reasonably satisfactory to
the Trustee, the Depositor or 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 Servicer or the Special
Servicer, as the case may be, shall not affect any rights any of the foregoing
Persons may have to indemnification under this Agreement or otherwise, unless
the Servicer's, or the Special Servicer's, as the case may be, defense of such
claim is materially prejudiced thereby. The indemnification provided in this
Section 6.03 herein shall survive the termination of this Agreement and the
termination or resignation of the Servicer, the Trustee, the Fiscal Agent and
the Special Servicer.
The Directing Certificateholder (only when acting in such
capacity) will have no liability to the Certificateholders for any action taken,
or for refraining from the taking of any action, in good faith and without
negligence pursuant to this Agreement; provided, however, that the Directing
Certificateholder will not be protected against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the exercise of its rights or by reason of reckless disregard in the exercise
of its rights. By its acceptance of a Certificate, each Certificateholder
confirms its understanding that the Directing Certificateholder may take actions
that favor the interests of one or more Classes of the Certificates over other
Classes of the Certificates, and that the Directing Certificateholder may have
special relationships and interests that conflict with those of holders of some
Classes of the Certificates and, absent willful misfeasance, bad faith or
negligence on the part of the Directing Certificateholder, agrees to take no
action against the Directing Certificateholder or any of its officers,
directors, employees, principals or agents as a result of such a special
relationship or conflict, and further agrees that the Directing
Certificateholder will not be deemed to have been negligent or reckless, or to
have acted in bad faith or engaged in willful misconduct solely by reason of its
having acted in the interests of the Controlling Class Certificateholders, and
the Directing Certificateholder shall have no liability whatsoever for having so
acted.
SECTION 6.04. Depositor, Servicer and Special Servicer Not to
Resign.
Subject to the provisions of Section 6.02, none of the
Depositor, the Servicer and the Special Servicer shall resign from their
respective obligations and duties hereby imposed on each of them except (a) upon
determination that such party's duties hereunder are no longer permissible under
applicable law or are in material conflict with, by reason of applicable law,
the other activities carried on by it or (b) in the case of the Servicer or
Special Servicer, upon the appointment of, and the acceptance of such
designation or appointment by, a successor Servicer
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or Special Servicer, as the case may be, and receipt by the Trustee of written
confirmation from each applicable Rating Agency that such resignation and
appointment will not cause the Rating Agency to downgrade, withdraw or qualify
any of the ratings assigned by the Rating Agency to any Class of Certificates.
Any such determination permitting the resignation of the Depositor, the Servicer
or the Special Servicer pursuant to clause (a) above shall be evidenced by an
Opinion of Counsel (at the expense of the resigning party) to such effect
delivered to the Trustee. No such resignation by the Servicer or the Special
Servicer shall become effective until the Trustee or a successor Servicer shall
have assumed the Servicer's or Special Servicer's, as applicable,
responsibilities and obligations in accordance with Section 7.02.
SECTION 6.05. Rights of the Depositor in Respect of the
Servicer and the Special Servicer.
The Depositor may, but is not obligated to, enforce the
obligations of the Servicer and the Special Servicer hereunder and may, but is
not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Servicer and the Special Servicer hereunder or exercise the
rights of the Servicer or Special Servicer, as applicable, hereunder; provided,
however, that the Servicer and the Special Servicer shall not be relieved of any
of their respective obligations hereunder by virtue of such performance by the
Depositor or its designee. The Depositor shall not have any responsibility or
liability for any action or failure to act by the Servicer or the Special
Servicer and is not obligated to supervise the performance of the Servicer or
the Special Servicer under this Agreement or otherwise.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default; Servicer and Special Servicer
Termination.
(a) "Event of Defaults" wherever used herein, means any one of
the following events:
(i) any failure by the Servicer to make any
remittance required to be made by the Servicer to the
Certificate Account, escrow account or either Distribution
Account on the day and by the time such remittance is required
to be made under the terms of this Agreement provided,
however, that if such failure to remit occurs only once in any
consecutive 12 month period, which failure is corrected by
11:00 a.m. New York City time on the following Business Day
and does not result in any delay in any distributions to be
made on the related Distribution Date, then, with respect to
such one failure only, a default shall not be deemed to have
occurred; or
(ii) any failure by the Special Servicer to deposit
into, or to remit to the Servicer for deposit into, or the
Servicer to make a required deposit into the Certificate
Account or the REO Account, or to deposit into, or to remit to
the Trustee or the Paying Agent for deposit into, the
Lower-Tier Distribution Account
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any amount required to be so deposited or remitted by the
Servicer or the Special Servicer, as the case may be, pursuant
to, and at the time specified by, the terms of this Agreement
provided; however that if such failure to deposit or remit
occurs only once in any consecutive 12 month period, which
failure is corrected by 11:00 a.m. New York City time on the
related Distribution Date and does not result in any delay in
any distributions to be made on the related Distribution Date,
then with respect to such one failure only, a default shall
not be deemed to have occurred; or
(iii) any failure on the part of the Servicer or the
Special Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part
of the Servicer or the Special Servicer contained in this
Agreement which continues unremedied for a period of 30 days
(15 days in the case of a failure to pay the premium for any
insurance policy required to be maintained hereunder) after
the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer
or the Special Servicer, as the case may be, by any other
party hereto, or to the Servicer, the Special Servicer, the
Depositor and the Trustee by the Holders of Certificates of
any Class evidencing, as to such Class, Percentage Interests
aggregating not less than 25%; provided, however, with respect
to any failure which is not reasonably curable within such
30-day period, the Master Servicer and the Special Servicer,
as applicable, shall have an additional 30-day period to
effect cure, so long as it has provided an Officer's
Certificate to the Trustee, certifying that it has diligently
pursued and is continuing to diligently pursue, a cure and
failure to cure within such 30 day period or such 30 day
extension period will not have a material adverse affect on
the Certificateholders, and provided further, that the
Servicer shall pay interest on any amount not timely remitted
at the Reimbursement Rate from and including the day such
remittances was required to be made to, but not including, the
day on which such remittance was actually made; or
(iv) any breach on the part of the Servicer or the
Special Servicer of any representation or warranty contained
in Section 3.23 or Section 3.24, as applicable, which
materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period
of 30 days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to
the Servicer or the Special Servicer, as the case may be, by
the Depositor or the Trustee, or to the Servicer, the Special
Servicer, the Depositor and the Trustee by the Holders of
Certificates of any Class evidencing, as to such Class,
Percentage Interests aggregating not less than 25%; or
(v) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in
an involuntary case under any present or future federal or
state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy,
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insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against
the Servicer or the Special Servicer and such decree or order
shall have remained in force undischarged or unstayed for a
period of 60 days; or
(vi) the Servicer or the Special Servicer shall
consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy,
insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or
substantially all of its property; or
(vii) the Servicer or the Special Servicer shall
admit in writing its inability to pay its debts generally as
they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors,
voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) the Trustee shall have received notice from
Moody's that the continuation of the Servicer or Special
Servicer, as the case may be, has resulted, or would result,
in and of itself, in a downgrading, qualification (it being
understood that the placing of any Class on "negative" credit
watch shall constitute a qualification) or withdrawal of the
then-current rating on any Class of Certificates that are
rated by Moody's if the Servicer or Special Servicer, as the
case may be, is not replaced or the Trustee has knowledge that
the Servicer or Special Servicer, as the case may be, has been
removed from S&P's List of Approved Servicers.
(b) If any Event of Default with respect to the Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of the Voting Rights, shall, terminate, by notice in
writing to the Defaulting Party, with a copy of such notice to the Depositor,
all of the rights and obligations of the Defaulting Party under this Agreement
and in and to the Mortgage Loans and the proceeds thereof; provided, however,
that the Defaulting Party shall be entitled to the payment of accrued and unpaid
compensation and reimbursement through the date of such termination as provided
for under this Agreement for services rendered and expenses incurred. From and
after the receipt by the Defaulting Party of such written notice, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee pursuant to and
under this Section, and, without limitation, the Trustee is hereby authorized
and empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Servicer and Special Servicer each agree
that if
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it is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than 20 Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records requested by it
to enable it to assume the Servicer's or the Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Servicer's or the Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, the
transfer within 5 Business Days to the Trustee for administration by it of all
cash amounts which shall at the time be or should have been credited by the
Servicer to the Certificate Account or any Servicing Account (if it is the
Defaulting Party) or by the Special Servicer to the REO Account (if it is the
Defaulting Party) or thereafter be received with respect to the Mortgage Loans
or any REO Property; provided, however, that the Servicer and the Special
Servicer each shall, if terminated pursuant to this Section 7.01(b) or in the
case of the Special Servicer, if terminated pursuant to Section 7.01(c) below,
continue to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the date of such termination (including, without
limitation, the Special Servicer's rights to receive and continue to receive
accrued Workout Fees (until the date, if any, upon which the Mortgage Loan again
becomes a Defaulted Mortgage Loan) whether in respect of Advances (in the case
of the Servicer) or otherwise, and it and its directors, officers, employees and
agents shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination).
(c) The Holder or Holders of more than 50% of the aggregate
Certificate Balance of the then Controlling Class shall be entitled to terminate
the rights and obligations of the Special Servicer under this Agreement, with or
without cause, upon 10 Business Days' notice to the Special Servicer, the
Servicer and the Trustee, and to appoint a successor Special Servicer; provided,
however, that (i) such successor will meet the requirements set forth in Section
7.02 and (ii) as evidenced in writing by each of the Rating Agencies, the
proposed successor of such Special Servicer will not, in and of itself, result
in a downgrading, withdrawal or qualification of the then current ratings
provided by the Rating Agencies in respect to any Class of then outstanding
Certificates that is rated. No penalty or fee shall be payable to the Special
Servicer with respect to any termination pursuant to this Section 7.01(c).
(d) The Servicer and Special Servicer shall, from time to
time, take all such actions as are required by them in order to maintain their
respective status as an approved servicer and special servicer, as applicable
and as pertains to this transaction, with each of the Rating Agencies.
(e) In connection with (i) any failure by the Servicer to make
any remittance required to be made by the Servicer to the Certificate Account,
escrow account or either Distribution Account on the day and by the time such
remittance is required to be made under the terms of this Agreement, or (ii) any
failure by the Special Servicer to deposit into, or to remit to the Servicer for
deposit into, or the Servicer to make a required deposit into the Certificate
Account or the REO Account, or to deposit into, or to remit to the Trustee or
the Paying Agent for deposit into, the Lower-Tier Distribution Account any
amount required to be so deposited or remitted by the Servicer or the Special
Servicer, as the case may be, pursuant to, and at the time specified by, the
terms of this Agreement, the Servicer or Special Servicer, as appropriate, shall
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pay to the Trustee for the account of the Trustee interest on any amount not
timely remitted at the Reimbursement Rate from and including the day such
remittances was required to be made to, but not including, the day on which such
remittance was actually made.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer, an
the case may be, either resigns pursuant to the first sentence of Section 6.04
or receives a notice of termination for cause pursuant to Section 7.01(a), and;
provided that no acceptable successor has been appointed, the Trustee shall be
the successor to the Servicer or Special Servicer, as the case may be, in all
respects in its capacity as Servicer or Special Servicer under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties, liabilities and limitations on liability
relating thereto and that arise thereafter placed on or for the benefit of the
Servicer or Special Servicer by the terms and provisions hereof; provided,
however, that any failure to perform such duties or responsibilities caused by
the terminated party's failure under Section 7.01 to provide information or
moneys required hereunder shall not be considered a default by such successor
hereunder. The appointment of a successor Servicer shall not affect any
liability of the predecessor Servicer which may have arisen prior to its
termination as Servicer, and the appointment of a successor Special Servicer
shall not affect any liability of the predecessor Special Servicer which may
have arisen prior to its termination as Special Servicer. The Trustee in its
capacity as successor to the Servicer or the Special Servicer, as the case may
be, shall not be liable for any of the representations and warranties of the
Servicer or the Special Servicer, respectively, herein or in any related
document or agreement, for any acts or omissions of the predecessor Servicer or
Special Servicer or for any losses incurred by the Servicer pursuant to Section
3.06 hereunder, nor shall the Trustee be required to purchase any Mortgage Loan
hereunder. As compensation therefor, the Trustee as successor Servicer shall be
entitled to the Servicing Fees and all fees relating to the Mortgage Loans which
the Servicer would have been entitled to if the Servicer had continued to act
hereunder, including but not limited to any income or other benefit from any
Permitted Investment pursuant to Section 3.06, and as successor to the Special
Servicer shall be entitled to the Special Servicing Fees to which the Special
Servicer would have been entitled if the Special Servicer had continued to act
hereunder. Should the Trustee succeed to the capacity of the Servicer or the
Special Servicer, the Trustee shall be afforded the same standard of care and
liability as the Servicer or the Special Servicer, as applicable,
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hereunder notwithstanding anything in Section 8.01 to the contrary, but only
with respect to actions taken by it in its role as successor Servicer or
successor Special Servicer, as the case may be, and not with respect to its role
as Trustee hereunder. Notwithstanding the above, the Trustee may, if it shall be
unwilling to act as successor to the Servicer or Special Servicer, or shall, if
it is unable to so act, or if the Trustee is not approved as a servicer or
special servicer, as applicable, by each Rating Agency or if the Holders of
Certificates entitled to at least 51% of the Voting Rights so request in writing
to the Trustee, promptly appoint, or petition a court of competent jurisdiction
to appoint, any established mortgage loan servicing institution which meets the
criteria set forth in Section 6.04 and otherwise herein, as the successor to the
Servicer or the Special Servicer, as applicable, hereunder in the assumption of
all or any part of the responsibilities, duties or liabilities of the Servicer
or Special Servicer hereunder. No appointment of a successor to the Servicer or
the Special Servicer hereunder shall be effective until the assumption in
writing by the successor to the Servicer or the Special Servicer of all its
responsibilities, duties and liabilities hereunder that arise thereafter.
Pending appointment of a successor to the Servicer or the Special Servicer
hereunder, unless the Trustee shall be prohibited by law from so acting, the
Trustee shall act in such capacity as herein above provided. In connection with
such appointment and assumption of a successor to the Servicer or Special
Servicer as described herein, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation with respect
to a successor Servicer or successor Special Servicer, as the case may be, shall
be in excess of that permitted the terminated Servicer or Special Servicer, as
the case may be, hereunder. The Trustee, the Servicer or the Special Servicer
(whichever is not the terminated party) and such successor shall take such
action, consistent with this Agreement, and shall be necessary to effectuate any
such succession. Any costs and expenses associated with the transfer of the
servicing function (other than with respect to a termination without cause)
under this Agreement shall be borne by the predecessor servicer.
SECTION 7.03. .otification to Certificateholders
(a) Upon any resignation of the Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Servicer or the
Special Servicer pursuant to Section 7.01 or any appointment of a successor to
the Servicer or the Special Servicer pursuant to Section 7.02, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the
occurrence of any event which constitutes or, with notice or lapse of time or
both, would constitute an Event of Default and (ii) 5 days after the Trustee
would be deemed to have notice of the occurrence of such an event in accordance
with Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and
all Certificateholders notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66 2/3%
Rights allocated to each Class of Certificates affected by any Event of Default
hereunder may waive such Event of Default within 20 days of the receipt of
notice from the Trustee of the occurrence of such Event of Default; provided,
however, that an Event of Default under clause (i) of Section 7.01(a) may be
waived only by all of the Certificateholders of the affected Classes. Upon any
such waiver of an Event of Default, such Event of Default shall cease to exist
and shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if any other Person held such Certificates.
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SECTION 7.05. Trustee and Fiscal Agent as Makers of Advances.
(a) In the event that the Servicer fails to fulfill its
obligations hereunder to make any Advances, the Trustee shall immediately notify
the Fiscal Agent of such circumstances in writing, and the Trustee shall perform
such obligations (x) within five Business Days of such failure by the Servicer
with respect to Servicing Advances to the extent the Trustee has actual
knowledge of such failure with respect to such Servicing Advances and (y) by
11:00 a.m., Houston time, on the Business Day next succeeding the related
Servicer Remittance Date with respect to P&I Advances. With respect to any such
Advance made by the Trustee, the Trustee shall succeed to all of the Servicer's
rights with respect to Advances hereunder, including, without limitation, the
Servicer's rights of reimbursement and interest on each Advance at the
Reimbursement Rate, and rights to determine that a proposed Advance is a
Nonrecoverable P&I Advance or Servicing Advance, as the case may be, (without
regard to any impairment of any such rights of reimbursement caused by such
Servicer's default in its obligations hereunder); provided, however, that if
Advances made by both the Trustee and the Servicer shall at any time be
outstanding, or any interest on any Advance shall be accrued and unpaid, all
amounts available to repay such Advances and the interest thereon hereunder
shall be applied entirely to the Advances outstanding to the Trustee, until such
Advances shall have been repaid in full, together with all interest accrued
thereon, prior to reimbursement of the Servicer for such Advances. The Trustee
shall be entitled to conclusively rely on any notice given with respect to a
Nonrecoverable Advance hereunder. In the event the Fiscal Agent is not the
initial Fiscal Agent, with respect to any Distribution Date that the Trustee is
required to make any P&I Advances, immediately upon making such P&I Advances the
Trustee shall notify the Fiscal Agent by facsimile that such P&I Advances have
been made.
(b) In the event that the Trustee fails to fulfill its
obligations hereunder to make any Advances following the failure of the Servicer
to make an Advance, the Fiscal Agent shall perform such obligations (x) within
one Business Day of such failure by the Trustee with respect to Servicing
Advances and (y) by no later than the close of business, Houston time, on the
related Distribution Date with respect to P&I Advances, and, with respect to any
such Advance made by the Fiscal Agent, the Fiscal Agent shall succeed to all of
the Trustee's rights with respect to any such Advance hereunder; provided,
however, that if Advances made by the Servicer, the Trustee and the Fiscal Agent
shall at any time be outstanding, or any interest on any Advance shall be
accrued and unpaid, all amounts available to repay such Advances and interest
hereunder shall be applied entirely to the Advances outstanding to the Fiscal
Agent, until such Advances shall have been repaid in full, together with all
interest accrued thereon. The Fiscal Agent shall be entitled to conclusively
rely on any notice given with respect to a Nonrecoverable Advance hereunder.
ARTICLE VIII
CONCERNING THE TRUSTEE AND FISCAL AGENT
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which may have
occurred, undertakes to perform such
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duties and only such duties as are specifically set forth in this Agreement. If
an Event of Default occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. Any permissive right of the
Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement (other than the Mortgage
Files, the review of which is specifically governed by the terms of Article II),
shall examine them to determine whether they conform to the requirements of this
Agreement. If any such instrument is found not to conform to the requirements of
this Agreement in a material manner, the Trustee shall take such action as it
deems appropriate to have the instrument corrected. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Servicer or the Special Servicer, and accepted by the Trustee in
good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default,
and after the curing of all such Events of Default which may
have occurred, the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the
Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for
an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with the direction of
Holders of Certificates entitled to at least 25% of the Voting
Rights relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Agreement (unless a higher percentage of Voting
Rights is required for such action).
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SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected
in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, Appraisal, bond or other paper or
document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect
of any action taken or suffered or omitted by it hereunder in
good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
Agreement or to make any investigation of matters arising
hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; the Trustee shall not be
required to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it; nothing
contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which
has not been cured, to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his
own affairs;
(iv) The Trustee shall not be personally liable for
any action reasonably taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Agreement;
(v) Prior to the occurrence of an Event of Default
hereunder and after the curing of all Events of Default which
may have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so
by Holders of Certificates entitled to at least 50% of the
Voting Rights; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the
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making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such expense or liability
as a condition to taking any such action. The reasonable
expense of every such reasonable examination shall be paid by
the Servicer or, if paid by the Trustee, shall be repaid by
the Servicer upon demand;
(vi) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys; provided,
however, that the appointment of such agents or attorneys
shall not relieve the Trustee of its duties or obligations
hereunder;
(vii) For all purposes under this Agreement, the
Trustee shall not be deemed to have notice of any Event of
Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) The Trustee shall not be responsible for any
act or omission of the Servicer or the Special Servicer
(unless the Trustee is acting as Servicer or Special Servicer,
as the case may be) or of the Depositor.
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity
or Sufficiency of Certificates or Mortgage Loans.
Neither the Trustee nor the Fiscal Agent makes any
representations as to the validity or sufficiency of this Agreement or of any
Certificate (other than as to the signature, if any, of the Trustee set forth
thereon) or of any Mortgage Loan or related document. Neither the Trustee nor
the Fiscal Agent shall be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust Fund, or any
funds deposited in or withdrawn from the Certificate Account or any other
account by or on behalf of the Depositor, the Servicer or the Special Servicer.
Neither the Trustee nor the Fiscal Agent shall be responsible for the accuracy
or content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Servicer or the
Special Servicer, and accepted by the Trustee or the Fiscal Agent, as
applicable, in good faith, pursuant to this Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
Each of the Trustee and the Fiscal Agent in its individual
capacity, not as Trustee or Fiscal Agent, may become the owner or pledgee of
Certificates, and may deal with the Depositor, the Servicer, the Special
Servicer, the Placement Agent and the Underwriter in banking transactions, with
the same rights it would have if it were not Trustee or the Fiscal Agent, as
applicable.
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SECTION 8.05. and Fiscal Agent.'s Fees; Indemnification of
Trustee
(a) The Servicer covenants and agrees to pay to the Trustee or
any successor Trustee from time to time, and the Trustee or any successor
Trustee shall be entitled to receive from the Servicer the Trustee Fee (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust). The Trustee Fee shall be the fee specified in that
certain letter agreement dated as of February 10, 1999, between the Servicer and
the Trustee. Other than such Trustee Fee, the Servicer shall not be required to
reimburse the Trustee for any cost or expense incurred in connection with the
Trustee's performance of its obligations hereunder. The Depositor will be
responsible for certain of such costs specified in that certain letter agreement
date as of November 10, 1999, between the Depositor and the Trustee. he Trustee
Fee and other costs identified in such letter agreements shalkl constitute the
Trustee's sole compensation for the services to be rendered by it hereunder.
(b) The Trustee, the Fiscal Agent and any director, officer,
employee or agent of the Trustee or the Fiscal Agent shall be entitled to be
indemnified and held harmless by the Trust Fund (to the extent of amounts on
deposit in the Lower-Tier Distribution Account from time to time) against any
loss, liability or expense (including, without limitation, costs and expenses of
litigation, and of investigation, counsel fees, damages, judgments and amounts
paid in settlement, and expenses incurred in becoming successor servicer, to the
extent not otherwise paid hereunder) arising out of, or incurred in connection
with, any act or omission of the Trustee or the Fiscal Agent, as applicable,
relating to the exercise and performance of any of the powers and duties of the
Trustee or the Fiscal Agent, as applicable, hereunder; provided, however, that
neither the Trustee, the Fiscal Agent nor any of the other above specified
Persons shall be entitled to indemnification pursuant to this Section 8.05(b)
for (i) allocable overhead, (ii) expenses or disbursements incurred or made by
or on behalf of the Trustee or the Fiscal Agent, as applicable, in the normal
course of the Trustee's performing its duties in accordance with any of the
provisions hereof, which are not "unanticipated expenses of the REMIC" within
the meaning of Treasury Regulations Section 1.860G-l(b)(3)(ii), (iii) any
expense or liability specifically required to be borne thereby pursuant to the
terms hereof or (iv) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
or the Fiscal Agent's obligations and duties hereunder, or by reason of
negligent disregard of such obligations or duties, or as may arise from a breach
of any representation, warranty or covenant of the Trustee or the Fiscal Agent
made herein. The provisions of this Section 8.05(b) shall survive any
resignation or removal of the Trustee and/or Fiscal Agent and appointment of a
successor thereto.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be, and will be
required to resign if it fails to be, (i) a corporation, national bank, national
banking association or a trust company, organized and doing business under the
laws of any state or the United States of America, authorized under such laws to
exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of the
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Servicer or the Special Servicer (except during any period when the Trustee is
acting as, or has become successor to, the Servicer or the Special Servicer, as
the case may be, pursuant to Section 7.02), (ii) an institution insured by the
Federal Deposit Insurance Corporation and (iii) an institution whose long-term
senior unsecured debt is rated either (a) if a Fiscal Agent is then currently in
place, not less than (1) Baa2 by Moody's and (2) "BBB" by S&P (provided that the
Fiscal Agent is not an entity that in and of itself would result in the
downgrading, withdrawal or qualification of Moody's and S&P's respective rating
of any of the then-rated Certificates) or (b) if a Fiscal Agent is not then in
place, Aa2 by Moody's and "AA" by S&P (or such entity as would not, as evidenced
in writing by the Rating Agency, result in the qualification, downgrading or
withdrawal of any of the ratings then assigned thereby to the Certificates).
If such corporation, national bank or national banking
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
corporation, national bank or national banking association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In the event the place of business from which the
Trustee administers the Upper-Tier REMIC and the Lower-Tier REMIC is in a state
or local jurisdiction that imposes a tax on the Trust Fund on the net income of
a REMIC (other than a tax corresponding to a tax imposed under the REMIC
Provisions), the Trustee shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax at no
expense to the Trust or (iii) administer the Upper-Tier REMIC and the Lower-Tier
REMIC from a state and local jurisdiction that does not impose such a tax.
SECTION 8.07. Resignation and Removal of the Trustee and the
Fiscal Agent.
(a) The Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice thereof to the Depositor, the
Servicer, the Special Servicer and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Servicer by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Servicer, the
Special Servicer and the Certificateholders by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Servicer by written instrument, in duplicate, which
instrument shall be delivered to the Trustee so removed and to the successor
trustee. A
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copy of such instrument shall be delivered to the Servicer, the Special Servicer
and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of
the Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Servicer, one complete set to the Trustee
so removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Depositor, the Special Servicer and the
remaining Certificateholders by the Servicer.
(d) Subject to the last sentence of the last paragraph of this
Section 8.07(d), the Fiscal Agent shall not be entitled to resign, except under
a determination that it may no longer perform its obligations and duties under
applicable law or such obligations and duties are in material conflict by reason
of applicable law with any other activities carried on by it. Any such
determination is required to be evidenced by an Opinion of Counsel to such
effect delivered to the Depositor and the Trustee. The Fiscal Agent may also
resign from its obligations and duties under this Agreement at any time upon
reasonable notice to the Trustee, provided that (i) a successor fiscal agent is
willing to assume the obligations, responsibilities, and covenants to be
performed by the Fiscal Agent on substantially the same terms and conditions,
and for not more than equivalent compensation, (ii) the Fiscal Agent bears all
costs associated with such resignation, (iii) the successor fiscal agent has a
long term debt rating of at least "Aa2" from Moody's and "AA" from S&P or, as
confirmed in writing by each Rating Agency, is an entity that in and of itself
would not result in a downgrading, withdrawal or qualification of any rating of
any then-rated Certificate, (iv) the successor fiscal agent is approved by the
Depositor and the Trustee and (v) the Rating Agencies shall have confirmed in
writing that the appointment of such successor fiscal agent will not adversely
affect or result in a withdrawal, downgrading, or qualification of the ratings
on the Certificates that are then-rated.
Upon any resignation or removal of the Fiscal Agent, the
Trustee will be required to designate a successor Fiscal Agent whose appointment
will not adversely affect the ratings on the Certificates then rated, unless (i)
there is a successor Fiscal Agent already provided for in accordance with the
proviso to the last sentence of the preceding paragraph in this Section 8.07(d)
or (ii) the long-term senior unsecured debt of the Trustee is rated Aa2 by
Moody's and "AA" by S&P (or such other rating by either Rating Agency as would
not, as evidenced in writing by such Rating Agency, adversely affect any of the
ratings then assigned thereby to the Certificates).
Any resignation or removal of the Trustee and the Fiscal Agent
and appointment of a successor Trustee and Fiscal Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee and Fiscal Agent as provided in Section
8.08, except that the resignation or removal of the Fiscal Agent shall become
effective immediately if, at the time of such resignation or removal, the
long-term senior unsecured debt of the Trustee is rated Aa2 by Moody's and "AA"
by S&P (or such other rating by either Rating Agency as would not, as evidenced
in writing by such Rating Agency, adversely affect any of the ratings then
assigned thereby to the Certificates).
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Upon any succession of the Trustee under this Agreement, the
predecessor Trustee shall be entitled to the payment of accrued and unpaid
compensation and reimbursement as provided for under this Agreement for services
rendered and expenses incurred. No Trustee or Fiscal Agent shall be personally
liable for any action or omission of any successor Trustee or successor Fiscal
Agent. Notwithstanding anything to the contrary herein, the resignation or
removal of the initial Trustee shall automatically result in the simultaneous
resignation or removal of the initial Fiscal Agent.
SECTION 8.08. Successor Trustee and Fiscal Agent.
(a) Any successor Trustee or Fiscal Agent appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, the Servicer, the Special Servicer and to its predecessor Trustee or
Fiscal Agent, as applicable, an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor Trustee or Fiscal
Agent, as applicable, shall become effective and such successor Trustee or
Fiscal Agent, as applicable, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee or
Fiscal Agent herein. The predecessor Trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files at the time held on its behalf by a
Custodian, which Custodian shall become the agent of the successor Trustee), and
the Depositor, the Servicer, the Special Servicer and the predecessor Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor Trustee all such rights, powers, duties and obligations, and to enable
the successor Trustee to perform its obligations hereunder.
(b) No successor Trustee shall accept appointment as provided
in this Section 8.08 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee or
Fiscal Agent as provided in this Section 8.08, the Servicer shall mail notice of
the succession of such Trustee or Fiscal Agent hereunder to the Depositor and
the Certificateholders. If the Servicer fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee or Fiscal Agent, such
successor Trustee or Fiscal Agent, as applicable, shall cause such notice to be
mailed at the expense of the Servicer.
SECTION 8.09. Merger or Consolidation of Trustee or Fiscal
Agent.
Any Person into which the Trustee or the Fiscal 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 Trustee or the Fiscal
Agent shall be a party, or any Person succeeding to all or substantially all of
the corporate trust business of the Trustee or the Fiscal Agent, shall be the
successor of the Trustee or the Fiscal Agent, respectively, hereunder; provided,
that, in the case of the Trustee, such successor Person shall be eligible under
the provisions of Section 8.06, without the execution or filing of any paper or
any further act on the
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part of any of the parties hereto, anything herein to the contrary
notwithstanding. The Trustee or the Fiscal Agent, as the case may be, will
provide notice of such event to the Servicer, the Special Servicer, the
Depositor and the Rating Agencies.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee
Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
to do so, or in case an Event of Default shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(a) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer or the Special Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(b) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
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(c) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(d) The appointment of a co-trustee or separate trustee under
this Section 8.10 shall not relieve the Trustee of its duties and
responsibilities hereunder; provided, however, that the Trustee shall have no
liability for the actions of a co-trustee or a separate trustee not within the
express authority of such co-trustee or separate trustee.
SECTION 8.11. Exercise of Trustee Powers by Certificateholders
No Certificateholder shall have any right under this Agreement
to institute any proceeding with respect to the Certificates or this Agreement
or exercise any remedy available to the Trustee unless (i) such
Certificateholder has provided the Trustee with written notice of default and
the continuance thereof and (ii) the Certificateholders of any Class evidencing
not less than 25% of the aggregate percentage interests constituting such Class
have made written request to the Trustee to institute such proceeding in its own
name (as Trustee hereunder) and have offered the Trustee reasonable indemnity,
and the Trustee, 60 days after receipt of such request and indemnity, has
neglected or refused to institute any such proceeding; provided that, the
Trustee is not obligated to exercise any of the trusts or powers vested in it by
this Agreement or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby.
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SECTION 8.12. Appointment of Custodians.
State Street Bank and Trust Company is hereby appointed as
Custodian to hold all or a portion of the Mortgage Files as agent for the
Trustee. The Trustee may replace State Street Bank as Custodian and appoint one
or more Custodians without the consent or approval of any other party to this
Agreement. Each subsequently appointed Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have
combined capital and surplus of at least $15,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File and shall
not be the Depositor or any Affiliate of the Depositor. Each Custodian shall be
subject to the same obligations and standard of care as would be imposed on the
Trustee hereunder in connection with the retention of Mortgage Files directly by
the Trustee. The appointment of one or more Custodians shall not relieve the
Trustee from any of its obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian. Any Custodian appointed
hereunder must maintain a fidelity bond and errors and omissions policy in an
amount customary for Custodians which serve in such capacity in commercial
mortgage loan securitization transactions.
SECTION 8.13. Access to Certain Information.
(a) On or prior to the date of the first sale of any
Non-Public Certificate to an Independent third party, the Depositor shall
provide to the Trustee a copy of any private placement memorandum or other
disclosure document used by the Depositor or its Affiliate in connection with
the offer and sale of the Class of Certificates to which such Non-Public
Certificate relates. In addition, if any such private placement memorandum or
disclosure document is revised, amended or supplemented at any time following
the delivery thereof to the Trustee, the Depositor promptly shall inform the
Trustee of such event and shall deliver to the Trustee a copy of the private
placement memorandum or disclosure document, as revised, amended or
supplemented. The Trustee shall maintain at its offices primarily responsible
for administering the Trust Fund and shall, upon reasonable advance notice, make
available during normal business hours for review by any Holder of a
Certificate, the Depositor, the Servicer, the Special Servicer, any Rating
Agency or any other Person to whom the Trustee believes such disclosure is
appropriate, originals or copies of the following items: (i) in the case of a
Holder or prospective transferee of a Non-Public Certificate, any private
placement memorandum or other disclosure document relating to the Class of
Certificates to which such Non-Public Certificate belongs, in the form most
recently provided to the Trustee and (ii) in all cases, (a) this Agreement and
any amendments hereto entered into pursuant to Section 11.01, (b) all statements
required to be delivered to Certificateholders of the relevant Class pursuant to
Section 4.02 since the Closing Date, (c) all Officer's Certificates delivered to
the Trustee since the Closing Date pursuant to Section 3.13, (d) all
accountants' reports delivered to the Trustee since the Closing Date pursuant to
Section 3.14, (e) any inspection report prepared by the Servicer, Sub-Servicer
or Special Servicer, as applicable, and delivered to the Trustee and Servicer in
respect of each Mortgaged Property pursuant to Section 3.12(a), (f) as to each
Mortgage Loan pursuant to which the related Mortgagor is required to deliver
such items or the Special Servicer has otherwise acquired such items, the most
recent annual operating statement and rent roll of the related Mortgaged
Property and financial statements of the related Mortgagor and any other reports
of
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the Mortgagor collected by the Servicer, Sub-Servicer or Special Servicer, as
applicable, and delivered to the Trustee pursuant to Section 3.12(b), together
with the accompanying written reports to be prepared by the Special Servicer and
delivered to the Trustee pursuant to Section 3.12(b), (g) any and all notices,
reports and Environmental Assessments delivered to the Trustee with respect to
any Mortgaged Property securing a Defaulted Mortgage Loan as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied (but only for so long as such Mortgaged Property or the
related Mortgage Loan are part of the Trust Fund), (h) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but only for so long as the affected Mortgage Loan is
part of the Trust Fund), (i) any and all Officer's Certificates delivered to the
Trustee to support the Servicer's determination that any P&I Advance or
Servicing Advance was or, if made, would be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, as the case may be, (j) any and all of the
Mortgage Loan documents contained in the Mortgage File, (k) any and all
Appraisals obtained pursuant to the definition of "Appraisal Reduction" herein,
(l) information regarding the occurrence of Servicing Transfer Events as to the
Mortgage Loans and (m) any and all Sub-Servicing Agreements and any amendments
thereto and modifications thereof. Copies of any and all of the foregoing items
will be available from the Trustee upon request; provided, however, that the
Trustee shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies, except in the case of
copies provided to the Rating Agencies, which shall be free of charge to the
Rating Agencies. In addition, without limiting the generality of the foregoing,
any Class F, Class G, Class H, Class I, Class J and Class K Certificateholder
may upon request obtain from the Trustee a copy of any factual report (other
than the Asset Status Report) delivered to the Rating Agencies under this
Agreement.
(b) [Reserved.]
(c) Notwithstanding anything to the contrary herein, in
addition to the reports and information made available and distributed pursuant
to the terms of this Agreement (including the information set forth in Section
8.12(a)), the Trustee shall, in accordance with such reasonable rules and
procedures as it may adopt (which may include the requirement that an agreement
that provides that such information shall be used solely for purposes of
evaluating the investment characteristics of the Certificates be executed), also
provide the reports available to Certificateholders pursuant to Section 4.02, as
well as certain additional information received by the Trustee to any
Certificateholder, the Underwriter, the Placement Agent, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided, however, that
the Servicer or the Trustee, as the case may be, shall be permitted to require
payment of a sum sufficient to cover the reasonable costs and expenses of
providing copies of such reports or information.
(d) With respect to any information furnished by the Trustee
or the Servicer pursuant to this Section 8.12, the Trustee or Servicer, as the
case may be, shall be entitled to indicate the source of such information and
the Trustee or Servicer, as
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applicable, may affix thereto any disclaimer it deems appropriate in its
discretion. The Trustee or the Servicer, as applicable, shall notify
Certificateholders of the availability of any such information in any manner as
it, in its sole discretion, may determine. In connection with providing access
to or copies of the items described in the preceding paragraph, the Trustee or
the Servicer, as the case may be, may require (a) in the case of Certificate
Owners, a confirmation executed by the requesting Person substantially in form
and substance reasonably acceptable to the Servicer or Trustee, as applicable,
generally to the effect that such Person is a beneficial holder of Certificates,
is requesting the information solely for use in evaluating such Person's
investment in the Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person in form and substance reasonably acceptable to
the Trustee or the Servicer, as the case may be, generally to the effect that
such Person is a prospective purchaser of a Certificate or an interest therein,
is requesting the information solely for use in evaluating a possible investment
in Certificates and will otherwise keep such information confidential. Neither
the Servicer nor the Trustee shall be liable for the dissemination of
information in accordance with this Agreement.
SECTION 8.14. Representations and Warranties of the Trustee
and the Fiscal Agent.
(a) The Trustee hereby represents and warrants to the
Depositor, the Servicer and the Special Servicer and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a banking association chartered
under the laws of the United States of America, duly
organized, validly existing and in good standing under the
laws thereof;
(ii) The execution and delivery of this Agreement by
the Trustee, and the performance and compliance with the terms
of this Agreement by the Trustee, will not violate the
Trustee's charter and by-laws or constitute a default (or an
event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party
or which is applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to
enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and
delivered this Agreement;
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto,
constitutes a valid, legal and binding obligation of the
Trustee, enforceable against the Trustee in accordance with
the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and
the rights of creditors of national banking associations
specifically and (b) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in
equity or at law;
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(v) The Trustee is not in violation of, and its
execution and delivery of this Agreement and its performance
and compliance with the terms of this Agreement will not
constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority,
which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either
the ability of the Trustee to perform its obligations under
this Agreement or the financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the
Trustee's knowledge, threatened against the Trustee which
would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability
of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
execution, delivery and performance by the Trustee, or
compliance by the Trustee with, this Agreement or the
consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or
order which has not been obtained or cannot be obtained prior
to the actual performance by the Trustee of its obligations
under this Agreement, and which, if not obtained would not
have a materially adverse effect on the ability of the Trustee
to perform its obligations hereunder.
(viii) The Trustee represents that it will use
reasonable commercial 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 trust business which would materially and
adversely affect it 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.
(b) The representations and warranties set forth in paragraph
(a) above shall survive the execution and delivery of the Agreement. The Trustee
shall indemnify the Servicer, the Special Servicer, the Fiscal Agent and the
Trust Fund and hold each of them harmless against any losses, damages,
penalties, fines, forfeitures, and legal fees and related costs, judgments, and
other costs and expenses resulting from any claim, demand, defense or assertion
arising from, or resulting from a material breach of the Trustee's
representations and warranties contained in
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paragraph (a) above. Such indemnification shall survive any termination or
resignation of the Trustee, and any termination of the Agreement.
(c) The Fiscal Agent hereby represents and warrants to the
Depositor, the Servicer and the Special Servicer and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Fiscal Agent is a foreign banking
corporation, duly organized, validly existing and in good
standing under the laws governing its creation;
(ii) The execution and delivery of this Agreement by
the Fiscal Agent, and the performance and compliance with the
terms of this Agreement by the Fiscal Agent, will not violate
the Fiscal Agent's charter and by-laws or constitute a default
(or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets;
(iii) The Fiscal Agent has the full power and
authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto,
constitutes a valid, legal and binding obligation of the
Fiscal Agent, enforceable against the Fiscal Agent in
accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally
and the rights of creditors of national banking associations
specifically and (b) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in
equity or at law;
(v) The Fiscal Agent is not in violation of, and its
execution and delivery of this Agreement and its performance
and compliance with the terms of this Agreement will not
constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority,
which violation, in the Fiscal Agent's good faith and
reasonable judgment, is likely to affect materially and
adversely either the ability of the Fiscal Agent to perform
its obligations under this Agreement or the financial
condition of the Fiscal Agent;
(vi) No litigation is pending or, to the best of the
Fiscal Agent's knowledge, threatened against the Fiscal Agent
which would prohibit the Fiscal Agent from entering into this
Agreement or, in the Fiscal Agent's good faith and reasonable
judgment, is likely to materially and adversely affect either
the ability
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of the Fiscal Agent to perform its obligations under this
Agreement or the financial condition of the Fiscal Agent; and
(vii) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
execution, delivery and performance by the Fiscal Agent, or
compliance by the Fiscal Agent with, this Agreement or the
consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or
order which has not been obtained or cannot be obtained prior
to the actual performance by the Fiscal Agent of its
obligations under this Agreement, and which, if not obtained
would not have a materially adverse effect on the ability of
the Fiscal Agent to perform its obligations hereunder.
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
All Mortgage Loans
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Servicer, the Special Servicer and the Trustee (other than the obligations of
the Trustee to provide for and make payments to Certificateholders as hereafter
set forth and the obligations of the Servicer and Special Servicer with respect
to servicing the Pari Passu Loan which will continue through the date of
liquidation thereof) shall terminate upon payment (or provision for payment) to
the Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the earlier
to occur of (i) the purchase by the Controlling Class Certificateholder holding
the largest Certificate Balance of the Certificates of the Controlling Class,
the Servicer, the Special Servicer, or the Holders of the Class LR Certificates,
as described below, of all the Mortgage Loans and each REO Property remaining in
the Trust Fund at a price equal to (a) the sum of (1) the aggregate Purchase
Price of all the Mortgage Loans (exclusive of REO Loans) included in the Trust
Fund and (2) the Appraised Value of each REO Property, if any, included in the
Trust Fund (such Appraisals in clause (a)(2) to be conducted by an Independent
Appraiser selected and mutually agreed upon by the Servicer and the Trustee, and
approved by more than 50% of the Voting Rights of the Classes of Certificates
then outstanding (other than the Controlling Class unless the Controlling Class
is the only Class of Certificates then outstanding)), minus (b) solely in the
case where the Servicer is effecting such purchase, the aggregate amount of
unreimbursed Advances, together with any interest accrued and payable to the
Servicer in respect of such Advances in accordance with Sections 3.03(d) and
4.03(d) and any unpaid Servicing Fees, remaining outstanding (which items shall
be deemed to have been paid or reimbursed to the Servicer in connection with
such purchase) and (c) solely in the case where the Special Servicer is
effecting such purchase, any unpaid Special Servicing Fees remaining outstanding
(which items shall be deemed to have been paid or reimbursed to the Special
Servicer in connection with such purchase) and (ii) the final payment or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan or
REO Property remaining in the Trust Fund; provided, however, that in no event
shall the trust created hereby continue
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beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the Court of St. James's, living on the date hereof.
The Controlling Class Certificateholder holding the largest
Certificate Balance of the Certificates of the Controlling Class may, at its
option, elect to purchase all of the Mortgage Loans and each REO Property
remaining in the Trust Fund as contemplated by clause (i) of the preceding
paragraph by giving written notice to the Trustee and the other parties hereto
no later than 60 days prior to the anticipated date of purchase; provided,
however, that such Controlling Class Certificateholder may so elect to purchase
all of the Mortgage Loans and each REO Property remaining in the Trust Fund only
on or after the first Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Loans set forth in the Preliminary Statement. In the event that such Controlling
Class Certificateholder does not exercise such purchase option within 10
Business Days of such Distribution Date, then the Servicer may purchase all of
the Mortgage Loans that are not Specially Serviced Mortgage Loans and the
Special Servicer may purchase all of the Specially Serviced Mortgage Loans and
REO Properties; provided, however, that (i) the Servicer may not purchase the
Mortgage Loans unless the Special Servicer purchases all of the Specially
Serviced Mortgage Loans and REO Properties and (ii) the Special Servicer may not
purchase the Specially Serviced Mortgage Loans and REO Properties unless the
Servicer purchases all of the Mortgage Loans; provided further that for so long
as the Servicer and the Special Servicer do not exercise their option to
purchase all of the Mortgage Loans and REO Properties following the expiration
of such 10 Business Day period, such Controlling Class Certificateholder may
continue to exercise the option granted to it. If the Mortgage Loans, Specially
Serviced Mortgage Loans and REO Properties are not purchased by such Controlling
Class Certificateholder or the Servicer and the Special Servicer pursuant to
their respective options, then the Holders of the Class LR Certificates may
purchase all but not less than all, of such assets then included in the Trust
Fund.
In the event that the Servicer, the Special Servicer, such
Controlling Class Certificateholder or the Holders of the Class LR Certificates
purchase any of the Mortgage Loans and each REO Property remaining in the Trust
Fund in accordance with the this Section 9.01, the Servicer, the Special
Servicer, the Controlling Class Certificateholder holding the largest
Certificate Balance of the Certificates of the Controlling Class or the Holders
of the Class LR Certificates, as applicable, shall deposit in the Lower-Tier
Distribution Account not later than the Servicer Remittance Date relating to the
Distribution Date on which the final distribution on the Certificates is to
occur, an amount in immediately available funds equal to the above-described
purchase price, which portion shall be deposited in the Certificate Account). In
addition, the Servicer shall transfer to the Lower-Tier Distribution Account all
amounts required to be transferred thereto on such Servicer Remittance Date from
the Certificate Account pursuant to the first paragraph of Section 3.04(c),
together with any other amounts on deposit in the Certificate Account that would
otherwise be held for future distribution.
Upon confirmation that such final deposits have been made and
receipt of an Opinion of Counsel (which Opinion of Counsel shall be obtained by
and at the expense of the
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party causing such liquidation and shall in no event be an expense of the
Trustee) to the effect that the resulting liquidation will be a "qualified
liquidation" within Section 860F(a)(4) of the Code, the Trustee shall release or
cause to be released to the Servicer, the Special Servicer, such Controlling
Class Certificateholder or the Holders of the Class LR Certificates, as
applicable, the Mortgage Files for the remaining Mortgage Loans to the
respective purchasers thereof and shall execute all assignments, endorsements
and other instruments furnished to it by the Servicer, the Special Servicer, the
Controlling Class Certificateholders or the Holders of the Class LR
Certificates, as applicable, as shall be necessary to effectuate transfer of the
Mortgage Loans and REO Properties remaining in the Trust Fund to the respective
purchasers thereof.
Notice of any termination pursuant to this Section 9.01 shall
be given promptly by the Trustee by letter to Certificateholders and each Rating
Agency and, if not previously notified pursuant to this Section 9.01, to the
other parties hereto mailed (a) in the event such notice is given in connection
with the purchase of all of the Mortgage Loans and each REO Property remaining
in the Trust Fund, not earlier than the 15th day and not later than the 25th day
of the month next preceding the month of the final distribution on the
Certificates, or (b) otherwise during the month of such final distribution on or
before the P&I Advance Determination Date in such month, in each case specifying
(i) the Distribution Date upon which the Trust Fund will terminate and final
payment of the Certificates will be made, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and surrender
of the Certificates at the offices of the Certificate Registrar or such other
location therein designated.
After transferring the Lower-Tier Distribution Amount and the
amount of any Yield Maintenance Charges distributable pursuant to Section
4.01(d) to the Upper-Tier Distribution Account pursuant to Section 3.04(c) and
upon presentation and surrender of the Certificates by the Certificateholders on
the final Distribution Date, the Trustee shall distribute to each
Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Upper-Tier Distribution Account that are allocable to payments on
the Class of Certificates so presented and surrendered. Amounts transferred from
the Lower-Tier Distribution Account to the Upper-Tier Distribution Account as of
the final Distribution Date (exclusive of any portion of such amounts payable or
reimbursable to any Person pursuant to clause (ii) of Section 3.05(c)) shall be
allocated for the purposes, in the amounts and in accordance with the priority
set forth in Sections 4.01(a) and 4.01(e) and shall be distributed in
termination and liquidation of the Uncertificated Lower-Tier Interests and the
Class LR Certificates in accordance with Sections 4.01(b) and (d). Any funds not
distributed on such Distribution Date shall be set aside and held uninvested in
trust for the benefit of Certificateholders not presenting and surrendering
their Certificates in the aforesaid manner and shall be disposed of in
accordance with this Section 9.01 and Section 4.01(g).
Any attorney's fees and costs and other out-of-pocket expenses
reasonably incurred by the Servicer or the Special Servicer in connection with a
termination hereunder shall be recoverable by the Servicer or Special Servicer,
as applicable, from the proceeds of such sale or liquidation.
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SECTION 9.02. Additional Termination Requirements.
In the event the Servicer, the Special Servicer, the
Controlling Class Certificateholder holding the largest Certificate Balance of
the Certificates of the Controlling Class or the Holders of the Class LR
Certificates purchases all of the Mortgage Loans and each REO Property remaining
in the Trust Fund as provided in Section 9.01, the Trust Fund shall be
terminated in accordance with the following additional requirements, which are
intended to meet the definition of a "qualified liquidation" in Section
860F(a)(4) of the Code:
(i) the Trustee shall specify the date of adoption of
the plan of complete liquidation (which shall be the date of
mailing of the notice specified in Section 9.01) in a
statement attached to each of the Upper-Tier REMIC's and the
Lower-Tier REMIC's final Tax Return pursuant to Treasury
Regulations, Section 1.860F-1 and shall satisfy all
requirements of a qualified liquidation under Section 860F of
the Code and any regulations thereunder as are specified in
the Opinion of Counsel delivered pursuant to Section 9.01;
(ii) during such 90-day liquidation period and at or
prior to the time of the making of the final payment on the
Certificates, the Trustee shall sell all of the assets of the
Trust Fund to the Servicer, the Special Servicer, the
Controlling Class Certificateholders or the Holders of the
Class LR Certificates, as applicable, for cash; and
(iii) immediately following the making of the final
payment on the Uncertificated Lower-Tier Interests and the
Certificates, the Trustee shall distribute or credit, or cause
to be distributed or credited, to the Holders of the Class LR
Certificates (in the case of the Lower-Tier REMIC) and the
Class R Certificates (in the case of the Upper-Tier REMIC) all
cash on hand (other than cash retained to meet claims), and
the Trust Fund and each of the Lower-Tier REMIC and the
Upper-Tier REMIC shall terminate at that time.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Trustee shall make elections to treat each of the
Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC under the Code and, if
necessary, under applicable state law. Such election will be made on Form 1066
or other appropriate federal tax return for the taxable year ending on the last
day of the calendar year in which the Uncertificated Lower-Tier Interests and
the Certificates are issued. For the purposes of the REMIC election in respect
of the Upper-Tier REMIC, each Class of the Regular Certificates shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the Upper-Tier REMIC.
For purposes of the REMIC election in respect of the Lower-Tier
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REMIC, each Class of Uncertificated Lower-Tier Interests shall be designated as
the "regular interests" and the Class LR Certificates shall be designated as the
sole class of "residual interests" in the Lower-Tier REMIC. None of the Special
Servicer, the Servicer and the Trustee shall permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in the Lower-Tier
REMIC or the Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day"
of each of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section 860G(a)(9) of the Code.
(c) The Trustee shall act on behalf of each REMIC in relation
to any tax matter or controversy involving either REMIC and shall represent each
REMIC in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The legal
expenses, including without limitation attorneys' or accountants' fees, and
costs of any such proceeding and any liability resulting therefrom shall be
expenses of the Trust Fund and the Trustee shall be entitled to reimbursement
therefor out of amounts attributable to the Mortgage Loans and any REO
Properties on deposit in the Certificate Account as provided by Section 3.05(a)
unless such legal expenses and costs are incurred by reason of the Trustee's
willful misfeasance, bad faith or negligence. The Holder of the largest
Percentage Interest in each of the Class R and Class LR Certificates shall be
designated, in the manner provided under Treasury Regulations Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T, as the
"tax matters person" of the Upper-Tier REMIC and the Lower-Tier REMIC,
respectively. By their acceptance thereof, the Holders of the largest Percentage
Interest in each of the Class R and Class LR Certificates hereby agrees to
irrevocably appoint the Trustee as their agent to perform all of the duties of
the "tax matters person" for Upper-Tier REMIC and the Lower-Tier REMIC,
respectively.
(d) The Trustee shall prepare or cause to be prepared and
shall file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC
created hereunder and shall sign such Tax Returns in a timely manner. The
expenses of preparing such returns shall be borne by the Trust Fund.
(e) The Trustee shall provide or cause to be provided (i) to
any Transferor of a Class R Certificate or Class LR Certificate such information
as is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent
and shall forward to the Certificateholders such information or reports as are
required by the Code or the REMIC Provisions including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption)) and (ii) to the Internal Revenue Service on Form 8811
the name, title, address and telephone number of the "tax matters person" who
will serve as the representative of each of the Lower-Tier REMIC and the
Upper-Tier REMIC created hereunder.
(f) The Trustee shall take such actions and shall cause the
Trust Fund to take such actions as are reasonably within the Trustee's control
and the scope of its duties more specifically set forth herein as shall be
necessary to maintain the status of each of the Lower-Tier
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REMIC and the Upper-Tier REMIC as a REMIC under the REMIC Provisions (and the
Servicer shall assist the Trustee, to the extent reasonably requested by the
Trustee to do so). Neither the Servicer nor the Special Servicer shall knowingly
or intentionally take any action, cause the Trust Fund to take any action or
fail to take (or fail to cause to be taken) any action reasonably within its
control and the scope of duties more specifically set forth herein, that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of either the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC or (ii) result in the imposition of a tax upon either the Lower-Tier REMIC
or the Upper-Tier REMIC or the Trust Fund (including but not limited to the tax
on "prohibited transactions" as defined in Section 860F(a)(2) of the Code and
the tax on contributions to a REMIC set forth in Section 860G(d) of the Code,
but not including the tax on "net income from foreclosure property") (either
such event, an "Adverse REMIC Event") unless the Trustee receives an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and the Trustee determines that taking such
action is in the best interest of the Trust Fund and the Certificateholders, at
the expense of the Trust Fund, but in no event at the expense of the Trustee) to
the effect that the contemplated action will not, with respect to the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC created hereunder, endanger
such status or, unless the Trustee determines in its sole discretion to
indemnify the Trust Fund against such tax, result in the imposition of such a
tax (not including a tax on "net income from foreclosure property"). The Trustee
shall not take or fail to take any action (whether or not authorized hereunder)
as to which the Trustee has received an Opinion of Counsel to the effect that an
Adverse REMIC Event could occur with respect to such action. The Trustee may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not expressly permitted by this
Agreement, but in no event at the expense of the Trustee. At all times as may be
required by the Code, the Servicer, Special Servicer and Trustee will to the
extent within their respective control and the scope of their respective duties
more specifically set forth herein, maintain substantially all of the assets of
each of the Lower-Tier REMIC and the Upper-Tier REMIC as "qualified mortgages"
as defined in Section 860G(a)(3) of the Code and "permitted investments" as
defined in Section 860G(a)(5) of the Code.
(g) In the event that any applicable federal, state or local
tax, including interest, penalties or assessments, additional amounts or
additions to tax, is imposed on either the Lower-Tier REMIC or the Upper-Tier
REMIC, such tax shall be charged against amounts otherwise distributable to the
Holders of the Certificates, except as provided in the last sentence of this
Section 10.01(g); provided, that with respect to the estimated amount of tax
imposed on any "net income from foreclosure property" pursuant to Code Section
860G(d) or any similar tax imposed by a state or local tax authority, the
Special Servicer shall retain in the related REO Account a reserve for the
payment of such taxes in such amounts and at such times as it shall deem
appropriate (or as advised by the Servicer in writing), and shall remit to the
Servicer such reserved amounts as the Servicer shall request in order to pay
such taxes. Except as provided in the preceding sentence, the Servicer shall
withdraw from the Certificate Account sufficient funds to pay or provide for the
payment of, and to actually pay, such tax as the Trustee notifies the Servicer
that it estimates to be legally owed by either the Lower-Tier REMIC or the
Upper-Tier REMIC (but such authorization shall not prevent the Trustee from
contesting, at the expense of the Trust Fund (other than as a consequence of a
breach of its obligations under this Agreement),
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any such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Trustee is
hereby authorized to and shall segregate, into a separate non-interest bearing
account, the net income from any "prohibited transaction" under Code Section
860F(a) or the amount of any taxable contribution to the Lower-Tier REMIC or the
Upper-Tier REMIC after the Startup Day that is subject to tax under Code Section
860G(d) and use such income or amount, to the extent necessary, to pay such
prohibited transactions tax. To the extent that any such tax (other than any
such tax paid in respect of "net income from foreclosure property") is paid to
the Internal Revenue Service or applicable state or local tax authorities, the
Trustee shall retain an equal amount from future amounts otherwise distributable
to the Holders of Residual Certificates (as applicable) and shall distribute
such retained amounts, (x) in the case of the Lower-Tier REMIC, to the Holders
of the Uncertificated Lower-Tier Interests to the extent they are fully
reimbursed for any Collateral Support Deficit arising therefrom and then to the
Holders of the Class LR Certificates in the manner specified in Section 4.01(b)
and (y) in the case of the Upper-Tier REMIC, to the Holders of Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class I, Class J, Class K
and Class X Certificates, as applicable, in the manner specified in Section
4.01(a), to the extent they are fully reimbursed for any Collateral Support
Deficit arising therefrom and then to the Holders of the Class R Certificates.
None of the Trustee, the Fiscal Agent, the Trustee or the Special Servicer shall
be responsible for any taxes imposed on either the Lower-Tier REMIC or the
Upper-Tier REMIC except to the extent such taxes arise as a consequence of a
breach of their respective obligations under this Agreement.
(h) The Trustee shall, for federal income tax purposes,
maintain books and records with respect to each of the Lower-Tier REMIC and the
Upper-Tier REMIC on a calendar year and on an accrual basis or as otherwise may
be required by the REMIC Provisions.
(i) Following the Startup Day, the Trustee shall not accept
any contributions of assets to the Lower-Tier REMIC and the Upper-Tier REMIC
unless the Trustee shall have received an Opinion of Counsel (at the expense of
the party seeking to make such contribution) to the effect that the inclusion of
such assets in the Lower-Tier REMIC or the Upper-Tier REMIC will not (i) cause
either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Uncertificated Lower-Tier Interests or Certificates
are outstanding or (ii) subject either the Trust Fund, the Lower-Tier REMIC or
the Upper-Tier REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) The Trustee shall not enter into any arrangement by which
the Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC will
receive a fee or other compensation for services nor permit the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-l(a)(4)(iii) of
the Treasury Regulations, the "latest possible maturity date" by which the
Certificate Balance of each Class of Certificates representing a "regular
interest" in the Upper-Tier REMIC and by which the
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Lower-Tier Principal Amount of each Class of Uncertificated Lower-Tier
Interests representing a "regular interest" in the Lower-Tier REMIC would be
reduced to zero is May 16, 2013, is the Distribution Date immediately following
the latest scheduled maturity of any Mortgage Loan.
(l) Within 30 days after the Closing Date, the Trustee shall
prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Lower-Tier REMIC and the Upper-Tier
REMIC.
(m) Neither the Trustee nor the Servicer shall sell, dispose
of or substitute for any of the Mortgage Loans (except in connection with (i)
the default, imminent default or foreclosure of a Mortgage Loan, including but
not limited to, the acquisition or sale of a Mortgaged Property acquired by
foreclosure or deed in lieu of foreclosure, (ii) the bankruptcy of the Trust
Fund, (iii) the termination of the Trust Fund pursuant to Article IX of this
Agreement or (iv) a purchase of Mortgage Loans pursuant to Article II or III of
this Agreement) or acquire any assets for the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC or sell or dispose of any investments
in the Certificate Account, the Distribution Accounts or the REO Account for
gain unless (a) it has received an Opinion of Counsel that such sale,
disposition or substitution will not affect adversely the status of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) the Trustee has
determined in its sole discretion to indemnify the Trust Fund against such tax,
cause the Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC to
be subject to a tax on "prohibited transactions" pursuant to the REMIC
Provisions.
SECTION 10.02. .epositor, Special Servicer, Paying Agent and
Trustee to Cooperate with Servicer
(a) The Depositor shall provide or cause to be provided to the
Trustee, within 10 days after the Closing Date, all information or data that the
Servicer reasonably determines to be relevant for tax purposes as to the
valuations and Issue Prices of the Certificates, including, without limitation,
the price, yield, Prepayment Assumption and projected cash flow of the
Certificates.
(b) The Servicer, the Special Servicer, the Paying Agent and
the Trustee shall each furnish such reports, certifications and information, and
access to such books and records maintained thereby, as may relate to the
Certificates or the Trust Fund and as shall be reasonably requested by the
Servicer in order to enable it to perform its duties hereunder.
SECTION 10.03. Use of Agents
The Trustee may execute any of its obligations and duties
under this Article X either directly or by or through agents or attorneys. The
Trustee shall not be relieved of any of its duties or obligations under this
Article X by virtue of the appointment of any such agents or attorneys.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the
parties hereto, without the consent of any of the Certificateholders:
(i) to cure any ambiguity;
(ii) to correct or supplement any provisions herein
or therein, which may be inconsistent with any other
provisions herein or therein or to correct any error;
(iii) to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain
the qualification of the Trust Fund or either the Lower-Tier
REMIC or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
(iv) to change the timing and/or nature of deposits
into the Certificate Account, the Distribution Accounts or REO
Account or to change the name in which the Certificate Account
is maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
(v) to modify, eliminate or add to the provisions of
Section 5.02(d) or any other provision hereof restricting
transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests,"; provided that (a) such
change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect, and (b) such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund,
the Lower-Tier
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REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
(vi) to modify Section 3.02(d) or any other provision
of this Agreement relating to the Pari Passu Loan; provided,
however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respects
the interests of any Certificateholder not consenting thereto
and such action will not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
(vii) to make any other provisions with respect to
matters or questions arising under this Agreement which shall
not be materially inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder not
consenting thereto; and
(viii) to amend or supplement any provision hereof to
the extent necessary to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency
provided that such amendment does not adversely impact any of
the Certificateholders.
(b) This Agreement may also be amended from time to time by
the parties hereto with the consent of the Holders of Certificates evidencing in
the aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the
timing of, payments which are required to be distributed on
any Certificate without the consent of the Holder of such
Certificate; or
(ii) reduce the aforesaid percentage of Certificates
of any Class the Holders of which are required to consent to
any such amendment, in any such case without the consent of
the Holders of all Certificates of such Class then
outstanding; or
(iii) adversely affect the Voting Rights of any Class
of Certificates without the consent of the Holders of all
Certificates of such Class then outstanding;
(iv) amend this Section 11.01; or
(v) amend the definition of Servicing Standard.
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(c) Notwithstanding the foregoing, the Trustee will not be
entitled to consent to any amendment hereto without having first received an
Opinion of Counsel (at the Trust Fund's expense) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Depositor,
the Special Servicer, the Trustee or any other specified person in accordance
with such amendment will not result in the imposition of a tax on the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC or cause the Lower-Tier REMIC
or the Upper-Tier REMIC to fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the
Trustee shall furnish a statement describing the amendment to each
Certificateholder and the Paying Agent and a copy of such amendment to each
Rating Agency.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may, but shall not be obligated to, enter into
any amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered
pursuant to Section 11.01(a) or (c) shall be borne by the Person seeking the
related amendment, except that if the Servicer or the Special Servicer or the
Trustee requests any amendment of this Agreement in furtherance of the rights
and interests of Certificateholders, the cost of any Opinion of Counsel required
in connection therewith pursuant to Section 11.01(a) or (c) shall be payable out
of the Certificate Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Depositor on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the cost
of which shall be paid by the Depositor) to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
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(c) The Trustee shall make any filings required under Illinois
law, the costs of which, if any, to be at the Trustee's expense.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except
as expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less than
25% of the related Percentage Interests in such Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it hereunder or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Holders of Certificates unless
such Holders have offered to the Trustee reasonable security against the costs,
expenses and liabilities which may be incurred therein or hereby. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
186
<PAGE>
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall
be in writing and, unless otherwise expressly provided herein, shall be deemed
to have been duly given if personally delivered at or mailed by registered mail,
postage prepaid or transmitted by telecopier with a hard copy mailed as
described above in confirmation, to: (i) 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; (ii) in the case of the Servicer GE Capital
Loan Services, Inc., Attention: Legal Department/Bear Stearns 1999-C1, telecopy
number: (281) 405-7145, with a copy to: GE Capital Loan Services, Inc., 363 N.
Sam Houston Parkway East, Suite 1200, Houston, Texas 77060, Attention: Portfolio
Manager/Bear Stearns 1999-C1, telecopy number: (281) 405-7132; (iii) in the case
of the Special Servicer, GE Capital Realty Group, Inc., 16479 Dallas Parkway,
Suite 400, Addison, Texas, Attention: Manager Special Services/Bear Stearns
1999-C1, telecopy number: (972) 447-2667, with a copy to: GE Capital Realty
Group, Inc., 16479 Dallas Parkway, Suite 400, Addison, Texas, Attention: General
Counsel/Bear Stearns 1999-C1, telecopy number: (972) 447-2647; (iv) in the case
of the Trustee, the Fiscal Agent, the initial Paying Agent, the initial
Authenticating Agent and the initial Certificate Registrar, LaSalle National
Bank, 135 South LaSalle Street, Suite 1625, Chicago, Illinois 60674, Attention:
Asset-Backed Securities Trust Services-Bear Stearns Commercial Mortgage
Securities, Inc., Series 1999-C1, telecopy number: (312) 904-2084 (vi) in the
case of the Rating Agencies, (a) S&P, Standard & Poor's Ratings Services, 25
Broadway, New York, New York 10004, Attention: Commercial Mortgage Surveillance
Group, telecopy number: (212) 412-0539; and (b) Moody's, Moody's Investors
Service, Inc., 99 Church Street, New York, New York 10007, Attention: Commercial
Mortgage Surveillance Group, telecopy number: (212) 553-0557; and (vii) in the
case of the Mortgage Loan Seller, Bear, Stearns Funding, Inc., 245 Park Avenue,
New York, New York 10167, Attention: James G. Reichek, 272-2619, with a copy to
Bear, Stearns Funding, Inc., 245 Park Avenue, New York, New York 10167,
Attention: Joseph Jurkowski, Esq., telecopy number: (212) 270-3358; or as to
each such Person such other address as may hereafter be furnished by such Person
to the parties hereto in writing. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown in
the Certificate Register. Any notice so mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given, whether
or not the Certificateholder receives such notice. Any notices to the Trustee
shall be deemed to have been duly given only when received.
187
<PAGE>
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Confirmation of Intent: Grant of a Security
Interest.
The Depositor intends that the conveyance of the Depositor's
right, title and interest in and to the Mortgage Loans pursuant to this
Agreement shall constitute a sale and not a pledge of security for a loan. If
such conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor also
intends and agrees that, in such event, (i) the Depositor shall be deemed to
have granted to the Trustee (in such capacity) a first priority security
interest in the Depositor's entire right, title and interest in and to the
assets comprising the Trust Fund, including without limitation, the Mortgage
Loans, all principal and interest received or receivable with respect to the
Mortgage Loans (other than principal and interest payments due and payable prior
to the Cut-off Date and Principal Prepayments received prior to the Cut-off
Date), all amounts held from time to time in the Certificate Account, the
Distribution Account and, if established, the REO Account, and all reinvestment
earnings on such amounts, and all of the Depositor's right, title and interest
in and to the proceeds of any title, hazard or other Insurance Policies related
to such Mortgage Loans and (ii) this Agreement shall constitute a security
agreement under applicable law. This Section 11.07 shall constitute notice to
the Trustee pursuant to any of the requirements of the applicable UCC.
SECTION 11.08. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto, and all such provisions shall inure to the benefit of the
Certificateholders. No other person, including, without limitation, any
Mortgagor, shall be entitled to any benefit or equitable right, remedy or claim
under this Agreement.
SECTION 11.09. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.10. Notices to the Rating Agencies.
(a) The Trustee shall use reasonable best efforts promptly to
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) any material change or amendment to this
Agreement;
188
<PAGE>
(ii) the occurrence of any Event of Default that has
not been cured;
(iii) the resignation or termination of the Servicer
or the Special Servicer;
(iv) any change in the location of either of the
Distribution Accounts;
(v) the repurchase of Mortgage Loans by the Mortgage
Loan Seller pursuant to Section 3.3 of the Mortgage Loan
Purchase and Sale Agreement; and
(vi) the final payment to any Class of
Certificateholders.
(b) The Servicer shall use reasonable best efforts consistent
with the Servicing Standard promptly to provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate
Account; and
(iii) any event that would result in the voluntary or
involuntary termination of any insurance of the accounts of
the Paying Agent or the Trustee;
(iv) any change in the lien priority of any Mortgage
Loan;
(v) any additional lease to an anchor tenant or
termination of any existing lease to an anchor tenant at
retail properties for any Mortgage Loan with a Stated
Principal Balance that is greater than 5% of the then
aggregate outstanding principal balances of the Mortgage
Loans;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan;
and
(viii) any release or substitution of any Mortgaged
Property.
(c) Each of the Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance
described in Section 3.13;
(ii) inspection reports and other items delivered to
each of the Servicer and Special Servicer pursuant to Sections
3.12(a) and 3.12(b);
(iii) each of its annual independent public
accountants' servicing reports described in Section 3.14;
189
<PAGE>
(iv) a CSSA Standard Information Package with respect
to each Distribution Date required to be delivered pursuant to
Section 4.02(b); and
(v) each waiver and consent provided pursuant to
Section 3.08.
(d) The Paying Agent shall promptly furnish to each Rating
Agency a copy of the statement to Certificateholders distributed pursuant to
Section 4.02(a).
(e) The Servicer and the Special Servicer, as applicable,
shall furnish to each Rating Agency with respect to each Mortgage Loan such
information as the Rating Agency shall reasonably request and which the Servicer
or Special Servicer can reasonably provide in accordance with applicable law and
without waiving any attorney-client privilege relating to such information. The
Servicer and Special Servicer, as applicable, may include any reasonable
disclaimer it deems appropriate with respect to such information.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
190
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective officers hereunto duly authorized, in each case as of
the day and year first above written.
BEAR STEARNS COMMERCIAL MORTGAGE
SECURITIES INC.,
as Depositor and attorney-in-fact
for the holder of the Founders
Pari Passu Loan pursuant to the
Founders Pari Passu Intercreditor
Agreement
By: /s/ James G. Reichek
------------------------------
Name: James G. Reichek
Title: Executive Vice President
Sched. 6-1
<PAGE>
GE CAPITAL LOAN SERVICES, INC.
Servicer
By: /s/ Joseph F. Beggins
---------------------------------
Name: Joseph F. Beggins
Title: President and Chief Executive
Officer
Sched. 6-2
<PAGE>
GE CAPITAL REALTY GROUP, INC.
Special Servicer
By: /s/ B.D. Wheeless
------------------------
Name: B.D. Wheeless
Title: Vice President
Sched. 6-3
<PAGE>
ABN AMRO BANK N.V., not in its
individual capacity but as Fiscal
Agent
Fiscal Agent
By: /s/ Irene Pazik
------------------------------
Name: Irene Pazik
Title: Vice President
By: /s/ Robert C. Smolka
------------------------------
Name: Robert C. Smolka
Title: Group Vice President
Sched. 6-4
<PAGE>
LASALLE NATIONAL BANK, not in its
individual capacity but as Trustee
Trustee
By: /s/ Michael B. Evans
-------------------------------
Name: Michael B. Evans
Title: First Vice President
Sched. 6-5
<PAGE>
EXHIBIT A-1
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 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.
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 5.91% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
- ----------------------------------- MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DENOMINATION: $89,632,000 $478,003,982
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF CUSIP NO. 07383F AP 3
THE CLASS A-1 CERTIFICATES AS OF THE CLOSING
DATE: $89,632,000 CERTIFICATE NO.: A-1-1
=========================================================================================================================
</TABLE>
A-1-1
<PAGE>
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class A-1 Certificates. The Certificates are designated as the
Bear Stearns Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-C1 and are issued in the Classes of
Certificates as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests,
A-1-2
<PAGE>
rights, benefits, obligations, proceeds, and duties evidenced hereby and the
rights, duties and obligations of the Trustee. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. In the case of any conflict between
terms specified in this Certificate and terms specified in the Pooling and
Servicing Agreement, the terms of the Pooling and Servicing Agreement shall
govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class A-1
Pass-Through Rate which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of 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), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the
A-1-3
<PAGE>
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, the Certificate Account will be held and maintained by the Servicer
in the name of the Trustee on behalf of the holders of the Certificates
specified in the Pooling and Servicing Agreement and the Servicer will be
authorized to make withdrawals therefrom and the Distribution Accounts will be
held and maintained by the Trustee on behalf of the holders of the Certificates
and the Trustee (and in certain instances, the Servicer) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account and Distribution Accounts will be paid to the Servicer as
set forth in the Pooling and Servicing Agreement. As provided in the Pooling and
Servicing Agreement, withdrawals from the Certificate Account shall be made from
time to time for purposes other than distributions to Certificateholders, such
purposes including reimbursement of certain expenses incurred with respect to
the servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or
A-1-4
<PAGE>
transfer agent appointed by the Certificate Registrar together with an
instrument of transfer, duly endorsed by, or accompanied by an assignment in the
form set forth below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, in the case of a
transfer, and a written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
A-1-5
<PAGE>
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
A-1-6
<PAGE>
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any power granted
to the Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal
Agent or any other specified person in accordance with such amendment, will not
result in the imposition of a tax on the REMIC constituted by the Trust Fund or
cause the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to
fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days'
A-1-7
<PAGE>
prior notice given to the Trustee, Paying Agent and each of the other parties to
the Pooling and Servicing Agreement (which notice the Paying Agent is required
to promptly forward to Certificateholders and Rating Agencies in the manner set
forth in the Pooling and Servicing Agreement), the Controlling Class
Certificateholder holding the largest aggregate Certificate Balance of the
Controlling Class (the "Largest Controlling Class Certificateholder") may
purchase all, but not less than all, of the Mortgage Loans and REO Properties in
the Trust Fund, and thereby effect termination of the Trust Fund and early
retirement of the then outstanding Certificates. If the Largest Controlling
Class Certificateholder does not exercise such purchase option, then the
Servicer may purchase all of the Mortgage Loans that are not Specially Serviced
Mortgage Loans and the Special Servicer may purchase all of the Specially
Serviced Mortgage Loans and REO Properties. If the Largest Controlling Class
Certificateholder does not exercise such purchase option and all of the
remaining Mortgage Loans, Specially Serviced Mortgage Loans and REO Properties
are not purchased by the Servicer and the Special Servicer pursuant to their
respective options, then the holder of the Class LR Certificates may purchase
such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-1-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:________________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
--------------------,
Authenticating Agent
By: __________________________
AUTHORIZED SIGNATORY
A-1-9
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT ____Custodian
(Cust)
TEN ENT - as tenants by the under Uniform
entireties Gifts to
Minors
Act______
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-1-10
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ________________________________ for the account of ________
__________________ account number __________________________________ or, if
mailed by check, to _____________________________. Statements should be mailed
to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
A-1-11
<PAGE>
EXHIBIT A-2
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 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.
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 6.02% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
- ----------------------------------- LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE:
DENOMINATION: $280,821,086 $478,003,982
- ---------------------------
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
A-2-1
<PAGE>
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE BALANCE CUSIP NO. 07383FT AQ 1
OF THE CLASS A-2 CERTIFICATES AS OF THE
CLOSING DATE: $280,821,086 CERTIFICATE NO.: A-2-1
=========================================================================================================================
</TABLE>
A-2-2
<PAGE>
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class A-2 Certificates. The Certificates are designated as the
Bear Stearns Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-C1 and are issued in the Classes of
Certificates as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
A-2-3
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class A-2
Pass-Through Rate which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of 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), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-2-4
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
A-2-5
<PAGE>
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and
A-2-6
<PAGE>
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject
A-2-7
<PAGE>
to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any
A-2-8
<PAGE>
power granted to the Servicer, the Special Servicer, the Depositor, the Trustee,
the Fiscal Agent or any other specified person in accordance with such
amendment, will not result in the imposition of a tax on the REMIC constituted
by the Trust Fund or cause the Trust Fund (or either the Upper-Tier REMIC or
Lower-Tier REMIC) to fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS
A-2-9
<PAGE>
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
A-2-10
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:_____________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-2-11
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - _____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
A-2-12
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ______________________________ or,
if mailed by check, to _____________________________. Statements should be
mailed to _____________________. This information is provided by assignee named
above, or ___________________, as its agent.
A-2-13
<PAGE>
EXHIBIT A-3
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA ), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
A-3-1
<PAGE>
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
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.
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 6.20% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE LOANS
AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR BEFORE
DENOMINATION: $23,900,199 CUT-OFF DATE:
$478,003,982
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE BALANCE CUSIP NO. 07383F AR 9
OF THE CLASS B CERTIFICATES AS OF THE
CLOSING DATE: $23,900,199 CERTIFICATE NO.: B-1
=========================================================================================================================
</TABLE>
A-3-2
<PAGE>
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class B Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
A-3-3
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class B
Pass-Through Rate which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of 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), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-3-4
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
A-3-5
<PAGE>
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and
A-3-6
<PAGE>
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject
A-3-7
<PAGE>
to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any
A-3-8
<PAGE>
power granted to the Servicer, the Special Servicer, the Depositor, the Trustee,
the Fiscal Agent or any other specified person in accordance with such
amendment, will not result in the imposition of a tax on the REMIC constituted
by the Trust Fund or cause the Trust Fund (or either the Upper-Tier REMIC or
Lower-Tier REMIC) to fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS
A-3-9
<PAGE>
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
A-3-10
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:_____________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
-------------------,
Authenticating Agent
By: ____________________________
AUTHORIZED SIGNATORY
A-3-11
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-3-12
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-3-13
<PAGE>
EXHIBIT A-4
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA ), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
A-4-1
<PAGE>
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
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.
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 6.53% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: $17,925,149 BEFORE CUT-OFF DATE:
$478,003,982
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE BALANCE CUSIP NO. 07383F AS 7
OF THE CLASS C CERTIFICATES AS OF THE
CLOSING DATE: $17,925,149 CERTIFICATE NO.: C-1
=========================================================================================================================
</TABLE>
A-4-2
<PAGE>
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class C Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
A-4-3
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class C
Pass-Through Rate which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of 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), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-4-4
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
A-4-5
<PAGE>
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and
A-4-6
<PAGE>
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject
A-4-7
<PAGE>
to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any
A-4-8
<PAGE>
power granted to the Servicer, the Special Servicer, the Depositor, the Trustee,
the Fiscal Agent or any other specified person in accordance with such
amendment, will not result in the imposition of a tax on the REMIC constituted
by the Trust Fund or cause the Trust Fund (or either the Upper-Tier REMIC or
Lower-Tier REMIC) to fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS
A-4-9
<PAGE>
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
A-4-10
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:_____________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: __________________________
AUTHORIZED SIGNATORY
A-4-11
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-4-12
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-4-13
<PAGE>
EXHIBIT A-5
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA ), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
A-5-1
<PAGE>
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
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.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 10, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 6.53%. BASED ON ITS ISSUE PRICE OF 94.27122%,
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 JANUARY 27, 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 5.72878%; (ii) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 7.1351%; AND (iii) THE AMOUNT OF OID
ALLOCABLE TO THE FIRST ACCRUAL PERIOD (FEBRUARY 11, 1999 TO FEBRUARY 14, 1999)
AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED
USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID
REGULATIONS (AS DEFINED IN THE PROSPECTUS DATED AUGUST 18, 1998), IS
APPROXIMATELY 0.0022%.
A-5-2
<PAGE>
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 6.53% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: $21,510,179 BEFORE CUT-OFF DATE:
$478,003,982
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE BALANCE CUSIP NO. 07383F AT 5
OF THE CLASS D CERTIFICATE AS OF THE CLOSING
DATE: $21,510,179 CERTIFICATE NO.: D-1
=========================================================================================================================
</TABLE>
A-5-3
<PAGE>
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class D Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
A-5-4
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class D
Pass-Through Rate which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of 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), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-5-5
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
A-5-6
<PAGE>
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and
A-5-7
<PAGE>
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject
A-5-8
<PAGE>
to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any
A-5-9
<PAGE>
power granted to the Servicer, the Special Servicer, the Depositor, the Trustee,
the Fiscal Agent or any other specified person in accordance with such
amendment, will not result in the imposition of a tax on the REMIC constituted
by the Trust Fund or cause the Trust Fund (or either the Upper-Tier REMIC or
Lower-Tier REMIC) to fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS
A-5-10
<PAGE>
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
A-5-11
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:_____________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
-------------------,
Authenticating Agent
By: __________________________
AUTHORIZED SIGNATORY
A-5-12
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-5-13
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-5-14
<PAGE>
EXHIBIT A-6
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS E
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA ), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
A-6-1
<PAGE>
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
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.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 10, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 6.53%. BASED ON ITS ISSUE PRICE OF 88.57322%,
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 JANUARY 27, 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 11.42678%; (ii) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 7.8137%; AND (iii) THE AMOUNT OF OID
ALLOCABLE TO THE FIRST ACCRUAL PERIOD (FEBRUARY 11, 1999 TO FEBRUARY 14, 1999)
AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED
USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID
REGULATIONS (AS DEFINED IN THE PROSPECTUS DATED AUGUST 18, 1998), IS
APPROXIMATELY 0.0043%.
A-6-2
<PAGE>
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 6.53% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: $5,975,050 BEFORE CUT-OFF DATE:
$478,003,982
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO. 07383F AU 2
BALANCE OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $5,975,050 CERTIFICATE NO.: E-1
=========================================================================================================================
</TABLE>
A-6-3
<PAGE>
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class E Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
A-6-4
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class E
Pass-Through Rate which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of 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), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-6-5
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
A-6-6
<PAGE>
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and
A-6-7
<PAGE>
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject
A-6-8
<PAGE>
to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any
A-6-9
<PAGE>
power granted to the Servicer, the Special Servicer, the Depositor, the Trustee,
the Fiscal Agent or any other specified person in accordance with such
amendment, will not result in the imposition of a tax on the REMIC constituted
by the Trust Fund or cause the Trust Fund (or either the Upper-Tier REMIC or
Lower-Tier REMIC) to fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS
A-6-10
<PAGE>
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
A-6-11
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:_____________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
--------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-6-12
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-6-13
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-6-14
<PAGE>
EXHIBIT A-7
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
A-7-1
<PAGE>
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA ), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION 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
A-7-2
<PAGE>
"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.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 10, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 5.64%. BASED ON ITS ISSUE PRICE OF 66.33927%,
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 JANUARY 27, 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 33.66073%; (ii) THE ANNUAL YIELD OF THIS
CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 9.9831%; AND (iii) THE
AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD (FEBRUARY 11, 1999 TO
FEBRUARY 14, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J),
EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM
DATED JANUARY 27, 1999), IS APPROXIMATELY 0.0109%.
A-7-3
<PAGE>
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 5.64% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: 13,145,110 RECEIVED ON OR BEFORE CUT-OFF DATE:
$478,003,982
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO. 07383F AV 0
BALANCE OF THE CLASS F CERTIFICATES AS
OF THE CLOSING DATE: $13,145,110 CERTIFICATE NO.: F-1
=========================================================================================================================
</TABLE>
A-7-4
<PAGE>
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class F Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
A-7-5
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class F
Pass-Through Rate which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of 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), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-7-6
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
A-7-7
<PAGE>
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and
A-7-8
<PAGE>
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject
A-7-9
<PAGE>
to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any
A-7-10
<PAGE>
power granted to the Servicer, the Special Servicer, the Depositor, the Trustee,
the Fiscal Agent or any other specified person in accordance with such
amendment, will not result in the imposition of a tax on the REMIC constituted
by the Trust Fund or cause the Trust Fund (or either the Upper-Tier REMIC or
Lower-Tier REMIC) to fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS
A-7-11
<PAGE>
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
A-7-12
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:______________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-7-13
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
=============================================================================================================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred
for, or issued in exchange
for or upon transfer of any
Remaining Principal interest
in this Book-Entry Certificate
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
=============================================================================================================
</TABLE>
A-7-14
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-7-15
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-7-16
<PAGE>
EXHIBIT A-8
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
A-8-1
<PAGE>
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA ), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION 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
A-8-2
<PAGE>
"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.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 10, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 5.64%. BASED ON ITS ISSUE PRICE OF 65.21059%,
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 JANUARY 27, 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 34.78941%; (ii) THE ANNUAL YIELD OF THIS
CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 10.1758%; AND (iii)
THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD (FEBRUARY 11, 1999 TO
FEBRUARY 14, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J),
EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM
DATED JANUARY 27, 1999), IS APPROXIMATELY 0.0111%.
A-8-3
<PAGE>
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 5.64% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: 4,780,040 RECEIVED ON OR BEFORE CUT-OFF DATE:
$478,003,982
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF FEBRUARY 1, 1999 SERVICER: GE CAPITAL LOAN SERVICES, INC.
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO. 07383F AW 8
BALANCE OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $4,780,040 CERTIFICATE NO.: G-1
=========================================================================================================================
</TABLE>
A-8-4
<PAGE>
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class G Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
A-8-5
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class G
Pass-Through Rate which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of 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), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-8-6
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
A-8-7
<PAGE>
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and
A-8-8
<PAGE>
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor)
A-8-9
<PAGE>
to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S.
Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any
A-8-10
<PAGE>
power granted to the Servicer, the Special Servicer, the Depositor, the Trustee,
the Fiscal Agent or any other specified person in accordance with such
amendment, will not result in the imposition of a tax on the REMIC constituted
by the Trust Fund or cause the Trust Fund (or either the Upper-Tier REMIC or
Lower-Tier REMIC) to fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS
A-8-11
<PAGE>
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
A-8-12
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:______________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
--------------------,
Authenticating Agent
By: __________________________
AUTHORIZED SIGNATORY
A-8-13
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
=============================================================================================================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred
for, or issued in exchange
for or upon transfer of any
Remaining Principal interest
in this Book-Entry Certificate
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
=============================================================================================================
</TABLE>
A-8-14
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-8-15
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-8-16
<PAGE>
EXHIBIT A-9
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE
A-9-1
<PAGE>
BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC
REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA ), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION 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
A-9-2
<PAGE>
THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING
AND SERVICING AGREEMENT.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 10, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 5.64%. BASED ON ITS ISSUE PRICE OF 61.80035%,
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 JANUARY 27, 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 38.19965%; (ii) THE ANNUAL YIELD OF THIS
CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 10.7981%; AND (iii)
THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD (FEBRUARY 11, 1999 TO
FEBRUARY 14, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J),
EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM
DATED JANUARY 27, 1999), IS APPROXIMATELY 0.0115%.
A-9-3
<PAGE>
<TABLE>
<CAPTION>
========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 5.64% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
DENOMINATION: 3,585,030 BEFORE CUT-OFF DATE:
$478,003,982
- ------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- ------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- ------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- ------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
- ------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF CUSIP NO. 07383F AX6
THE CLASS H CERTIFICATES
CLOSING DATE: $3,585,030 CERTIFICATE NO.: H-1
========================================================================================================================
</TABLE>
A-9-4
<PAGE>
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class H Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
A-9-5
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class H
Pass-Through Rate which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of 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), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-9-6
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
A-9-7
<PAGE>
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and
A-9-8
<PAGE>
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject
A-9-9
<PAGE>
to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any
A-9-10
<PAGE>
power granted to the Servicer, the Special Servicer, the Depositor, the Trustee,
the Fiscal Agent or any other specified person in accordance with such
amendment, will not result in the imposition of a tax on the REMIC constituted
by the Trust Fund or cause the Trust Fund (or either the Upper-Tier REMIC or
Lower-Tier REMIC) to fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS
A-9-11
<PAGE>
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
A-9-12
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:______________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-9-13
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
=============================================================================================================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred
for, or issued in exchange
for or upon transfer of any
Remaining Principal interest
in this Book-Entry Certificate
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
=============================================================================================================
</TABLE>
A-9-14
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-9-15
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-9-16
<PAGE>
EXHIBIT A-10
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS I
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS I CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
A-10-1
<PAGE>
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA ), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION 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
A-10-2
<PAGE>
"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.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 10, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 5.64%. BASED ON ITS ISSUE PRICE OF 50.75565%,
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 JANUARY 27, 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 49.24435%; (ii) THE ANNUAL YIELD OF THIS
CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 13.1788%; AND (iii)
THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD (FEBRUARY 11, 1999 TO
FEBRUARY 14, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J),
EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM
DATED JANUARY 27, 1999), IS APPROXIMATELY 0.0117%.
A-10-3
<PAGE>
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 5.64% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: 9,560,080 RECEIVED ON OR BEFORE CUT-OFF DATE:
$478,003,982
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF CUSIP NO. 07383F AY 4
THE CLASS I CERTIFICATES AS OF THE CLOSING
DATE: $9,560,080 CERTIFICATE NO.: I-1
=========================================================================================================================
</TABLE>
A-10-4
<PAGE>
CLASS I CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class I Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class I Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
A-10-5
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class I
Pass-Through Rate which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of 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), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-10-6
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
A-10-7
<PAGE>
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and
A-10-8
<PAGE>
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor)
A-10-9
<PAGE>
to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S.
Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any
A-10-10
<PAGE>
power granted to the Servicer, the Special Servicer, the Depositor, the Trustee,
the Fiscal Agent or any other specified person in accordance with such
amendment, will not result in the imposition of a tax on the REMIC constituted
by the Trust Fund or cause the Trust Fund (or either the Upper-Tier REMIC or
Lower-Tier REMIC) to fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS
A-10-11
<PAGE>
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
A-10-12
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:______________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
--------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-10-13
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
=============================================================================================================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred
for, or issued in exchange
for or upon transfer of any
Remaining Principal interest
in this Book-Entry Certificate
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
=============================================================================================================
</TABLE>
A-10-14
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-10-15
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-10-16
<PAGE>
EXHIBIT A-11
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
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<PAGE>
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA ), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION 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
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<PAGE>
"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.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 10, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 5.64%. BASED ON ITS ISSUE PRICE OF 39.05028%,
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 JANUARY 27, 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 60.94972%; (ii) THE ANNUAL YIELD OF THIS
CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 16.4536%; AND (iii)
THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD (FEBRUARY 11, 1999 TO
FEBRUARY 14, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J),
EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM
DATED JANUARY 27, 1999), IS APPROXIMATELY 0.0087%.
A-11-3
<PAGE>
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 5.64% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: 2,390,020 RECEIVED ON OR BEFORE CUT-OFF DATE:
$478,003,982
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO. 07383F AZ 1
BALANCE OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $2,390,020 CERTIFICATE NO.: J-1
=========================================================================================================================
</TABLE>
A-11-4
<PAGE>
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class J Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
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<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class J
Pass-Through Rate which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of 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), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-11-6
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
A-11-7
<PAGE>
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and
A-11-8
<PAGE>
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject
A-11-9
<PAGE>
to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any
A-11-10
<PAGE>
power granted to the Servicer, the Special Servicer, the Depositor, the Trustee,
the Fiscal Agent or any other specified person in accordance with such
amendment, will not result in the imposition of a tax on the REMIC constituted
by the Trust Fund or cause the Trust Fund (or either the Upper-Tier REMIC or
Lower-Tier REMIC) to fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS
A-11-11
<PAGE>
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
A-11-12
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:______________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
--------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-11-13
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
=============================================================================================================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred
for, or issued in exchange
for or upon transfer of any
Remaining Principal interest
in this Book-Entry Certificate
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
=============================================================================================================
</TABLE>
A-11-14
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-11-15
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-11-16
<PAGE>
EXHIBIT A-12
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
A-12-1
<PAGE>
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA ), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION 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
A-12-2
<PAGE>
"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.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 10, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 5.64%. BASED ON ITS ISSUE PRICE OF 20.23623%,
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 JANUARY 27, 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 79.76377%; (ii) THE ANNUAL YIELD OF THIS
CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 28.2805%; AND (iii)
THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD (FEBRUARY 11, 1999 TO
FEBRUARY 14, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J),
EXAMPLE 3 OF THE OID REGULATIONS (AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM
DATED JANUARY 27, 1999), IS APPROXIMATELY 0.0009%.
A-12-3
<PAGE>
<TABLE>
<CAPTION>
========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 5.64% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: 4,780,039 RECEIVED ON OR BEFORE CUT-OFF DATE:
$478,003,982
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE BALANCE CUSIP NO. 07383F BA 5
OF THE CLASS K CERTIFICATES AS OF THE CLOSING
DATE: $4,780,039 CERTIFICATE NO.: K-1
=========================================================================================================================
</TABLE>
A-12-4
<PAGE>
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class K Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
A-12-5
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class K
Pass-Through Rate which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of 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), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-12-6
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
A-12-7
<PAGE>
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issuable only in one or more Definitive
Certificates in denominations representing Percentage Interests of not less than
25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and
A-12-8
<PAGE>
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject
A-12-9
<PAGE>
to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any
A-12-10
<PAGE>
power granted to the Servicer, the Special Servicer, the Depositor, the Trustee,
the Fiscal Agent or any other specified person in accordance with such
amendment, will not result in the imposition of a tax on the REMIC constituted
by the Trust Fund or cause the Trust Fund (or either the Upper-Tier REMIC or
Lower-Tier REMIC) to fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS
A-12-11
<PAGE>
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
A-12-12
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:______________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-12-13
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
=============================================================================================================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred
for, or issued in exchange
for or upon transfer of any
Remaining Principal interest
in this Book-Entry Certificate
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
=============================================================================================================
</TABLE>
A-12-14
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-12-15
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-12-16
<PAGE>
EXHIBIT A-13
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS L CERTIFICATE WILL BE ENTITLED ONLY TO DISTRIBUTIONS OF EXCESS
INTEREST, IF ANY, EARNED ON THE ARD LOAN AFTER ITS ANTICIPATED REPAYMENT DATE.
THE HOLDER OF THE CLASS L CERTIFICATE WILL NOT BE ENTITLED TO DISTRIBUTIONS IN
RESPECT OF INTEREST ON ANY OTHER MORTGAGE LOANS IN THE TRUST FUND. THE HOLDER OF
THE CLASS L CERTIFICATE WILL NOT BE ENTITLED TO ANY DISTRIBUTIONS IN RESPECT OF
PRINCIPAL. THIS CERTIFICATE DOES NOT CONSTITUTE A REMIC REGULAR INTEREST UNDER
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A-13-1
<PAGE>
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA ), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION 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.
A-13-2
<PAGE>
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: N/A APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: N/A RECEIVED ON OR BEFORE CUT-OFF DATE:
N/A
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE BALANCE CUSIP NO. 07383F BC 1
OF THE CLASS L CERTIFICATES AS OF THE
CLOSING DATE: N/A CERTIFICATE NO.: L-1
=========================================================================================================================
</TABLE>
A-13-3
<PAGE>
CLASS L CERTIFICATE
evidencing a beneficial interest in the assets of a Trust Fund comprised of
excess interest, if any, on the ARD Loan after its anticipated repayment date.
The ARD Loan is one of the assets of a Trust Fund, consisting primarily of a
pool of fixed rate, commercial, multifamily and mobile home community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT GENERAL ELECTRIC CAPITAL CORPORATION
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificate issued by the Trust Fund created pursuant to the Pooling and
Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee (the
"Trustee"), GE Capital Realty Group, Inc., as special servicer (the "Special
Servicer"), GE Capital Loan Services, Inc., as servicer (the "Servicer") and ABN
AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A summary of certain of
the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof. The Certificates are
designated as the Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-C1 and are issued in the Classes
of Certificates as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests,
A-13-4
<PAGE>
rights, benefits, obligations, proceeds, and duties evidenced hereby and the
rights, duties and obligations of the Trustee. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. In the case of any conflict between
terms specified in this Certificate and terms specified in the Pooling and
Servicing Agreement, the terms of the Pooling and Servicing Agreement shall
govern.
This Certificate is not a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to the Excess
Interest, if any, collected in respect of the ARD Loan, all as more fully
described in the Pooling and Servicing Agreement.
The Class L Certificate is non-interest bearing As provided in
the Pooling and Servicing Agreement, the Certificate Account will be held and
maintained by the Servicer in the name of the Trustee on behalf of the holders
of the Certificates specified in the Pooling and Servicing Agreement and the
Servicer will be authorized to make withdrawals therefrom and the Distribution
Accounts will be held and maintained by the Trustee on behalf of the holders of
the Certificates and the Trustee (and in certain instances, the Servicer) will
be authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account and Distribution Accounts will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
A-13-5
<PAGE>
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and
A-13-6
<PAGE>
Servicing Agreement, and none of the Depositor, the Trustee, the Servicer, the
Special Servicer, the Paying Agent, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject
A-13-7
<PAGE>
to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any
A-13-8
<PAGE>
power granted to the Servicer, the Special Servicer, the Depositor, the Trustee,
the Fiscal Agent or any other specified person in accordance with such
amendment, will not result in the imposition of a tax on the REMIC constituted
by the Trust Fund or cause the Trust Fund (or either the Upper-Tier REMIC or
Lower-Tier REMIC) to fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS
A-13-9
<PAGE>
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
A-13-10
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:______________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATE REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
--------------------,
Authenticating Agent
By: _______________________
AUTHORIZED SIGNATORY
A-13-11
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of Assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
A-13-12
<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.
A-13-13
<PAGE>
EXHIBIT A-14
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS X
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRASNFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE OF THIS CERTIFICATE IN DEFINITIVE
FORM IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER
SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS X
CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR 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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER
A-14-1
<PAGE>
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR") WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF
WHICH COME WITHIN SUCH PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR (C) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THE LAST PAGE OF THIS CERTIFICATE.
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
INITIAL PASS-THROUGH RATE: 0.5834% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE LOANS
AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF
The Class X Pass-Through Rate with DATE:
respect to any Distribution Date $478,003,982
will be equal to the excess, if
any, of (i) the weighted average SERVICER: GE CAPITAL LOAN SERVICES, INC.
of the non-default interest rates
specified in the notes relating to
each mortgage loan in the trust
fund, net of the related servicing
fee rate, but without taking into
account any reductions of such
non-default interest rates
following the cut-off date.
- -------------------------------------------------------------------------------------------------------------------------
DENOMINATION: $478,003,982 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE NATIONAL BANK
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 CUSIP NO. 07383F BB 3
- -------------------------------------------------------------------------------------------------------------------------
APPROXIMATE AGGREGATE NOTIONAL CERTIFICATE NO.: X-1
AMOUNT OF THE CLASS X CERTIFICATES
AS OF THE CLOSING DATE: $478,003,982
=========================================================================================================================
</TABLE>
A-14-2
<PAGE>
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Notional
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-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
A-14-3
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date in an amount equal to
the sum of the A-1 Component Interest Accrual Amount, the A-2 Component Interest
Accrual Amount, the B Component Interest Accrual Amount, C-E Component Interest
Accrual Amount and the WAC Component Interest Accrual Amount immediately prior
to such Distribution Date which shall be equal to the excess, if any, of (i) the
weighted average of the Net Mortgage Rates of the Mortgage Loans as of the
immediately preceding Distribution Date after giving effect to distributions of
principal on such Distribution Date, over (ii) the weighted average of the
Pass-Through Rates of the other Classes of Certificates (other than the Residual
Certificates). Interest allocated to this Certificate on any Distribution Date
will be in an amount due to this Certificate's pro rata share of the Available
Distribution Amount to be distributed on the Certificates of this Class as of
such Distribution Date, with a final distribution to be made upon retirement of
this Certificate as set forth in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the
A-14-4
<PAGE>
Certificate Account will be held and maintained by the Servicer in the name of
the Trustee on behalf of the holders of the Certificates specified in the
Pooling and Servicing Agreement and the Servicer will be authorized to make
withdrawals therefrom and the Distribution Accounts will be held and maintained
by the Trustee on behalf of the holders of the Certificates and the Trustee (and
in certain instances, the Servicer) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
and Distribution Accounts will be paid to the Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or
A-14-5
<PAGE>
transfer agent appointed by the Certificate Registrar together with an
instrument of transfer, duly endorsed by, or accompanied by an assignment in the
form set forth below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, in the case of a
transfer, and a written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Class X Certificates will be issued in book-entry form through the
facilities of DTC in minimum Denominations of $1,000,000 initial Notional Amount
and in integral multiples of $1,000 in excess thereof, with one Certificate of
such Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Offered Certificates (other than the Class X Certificates) will
be issued in book-entry form through the facilities of DTC in minimum
Denominations of $25,000 initial Certificate Balance, and in integral multiples
of $1,000 in excess thereof, with one Certificate of each such Class evidencing
an additional amount equal to the remainder of the initial Certificate Balance
of such Class. Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class X Certificates and the
Residual Certificates) will be issued in fully registered, certificated form, in
minimum denominations of initial Certificate Balance of not less than $250,000
and in integral multiples of $1,000 in excess thereof, with one Certificate of
each such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. The Class R and Class LR Certificates
will be issuable only in one or more Definitive Certificates in denominations
representing Percentage Interests of not less than 25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
A-14-6
<PAGE>
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as
A-14-7
<PAGE>
evidenced by an Opinion of Counsel, adversely affect in any
material respects, the interests of any Certificateholder not
consenting thereto and such action will not result in the
withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any power granted
to the Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal
Agent or any other specified person in accordance with such amendment, will not
result in the imposition of a tax on the REMIC constituted by the Trust Fund or
cause the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to
fail to qualify as a REMIC.
A-14-8
<PAGE>
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-14-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:______________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
--------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-14-10
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-14-11
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-14-12
<PAGE>
EXHIBIT A-15
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
SUBJECT TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF
THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR , LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON INVESTING THE
ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
A-15-1
<PAGE>
SECTIONS 860G(A)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS
SET FORTH IN SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT.
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C>
PERCENTAGE INTEREST EVIDENCED BY APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
THIS CERTIFICATE: N/A MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
$478,003,982
- -------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- -------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- -------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
- -------------------------------------------------------------------------------------------------------------------------
CLASS R PERCENTAGE INTEREST: N/A PAYING AGENT: LASALLE NATIONAL BANK
- -------------------------------------------------------------------------------------------------------------------------
CERTIFICATE NO.: R-1
=========================================================================================================================
</TABLE>
A-15-2
<PAGE>
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT BEAR, STEARNS SECURITIES CORP.
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class R Certificates. The Certificates are designated as the Bear
Stearns Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
A-15-3
<PAGE>
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as
amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat,
and take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be designated, in the in the manner provided under Treasury
Regulations Section 1.860F-4(d) and temporary Treasury Regulations Section
301.6231(a)(7)-1T, as the "tax matters person" of the Upper-Tier REMIC. By their
acceptance thereof, the Holders of the largest Percentage Interest of the Class
R Certificates hereby agrees irrevocably to appoint the Trustee as their agent
to perform all of the duties of the "tax matters person" for the Upper-Tier
REMIC.
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent to
the extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
A-15-4
<PAGE>
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Each Person who has or who acquires any Ownership Interest in
a Class R 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 Section 5.02(d) of the
Pooling and Servicing Agreement to deliver payments to a Person other than such
Person. The rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions: (A) No Person
holding or acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class R Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or
A-15-5
<PAGE>
agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that it has
reviewed the provisions of Section 5.02(d) of the Pooling and Servicing
Agreement and agrees to be bound by them; (C) Notwithstanding the delivery of a
Transfer Affidavit by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person, no Transfer of an Ownership Interest in a Class R Certificate
to such proposed Transferee shall be effected; and (D) Each Person holding or
acquiring any Ownership Interest in a Class R Certificate shall agree (1) to
require a Transfer Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Class R Certificate and (2)
not to transfer its Ownership Interest in such Class R Certificate unless it
provides to the Certificate Registrar a letter substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor
Letter") certifying that, among other things, it has no actual knowledge that
such prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. The Class R and Class LR
Certificates will be issuable only in one or more Definitive Certificates in
denominations representing Percentage Interests of not less than 25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any
A-15-6
<PAGE>
transfer to an Institutional Accredited Investor, the transferor shall reimburse
the Trust Fund for any costs (including the cost of the Certificate Registrar's
counsel's review of the documents and any legal opinions, submitted by the
transferor or transferee to the Certificate Registrar as provided in Section
5.02(h) of the Pooling and Servicing Agreement) incurred by the Certificate
Registrar in connection with such transfer. With respect to any transfer or
exchange of any Certificate, the Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
A-15-7
<PAGE>
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
A-15-8
<PAGE>
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any power granted
to the Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal
Agent or any other specified person in accordance with such amendment, will not
result in the imposition of a tax on the REMIC constituted by the Trust Fund or
cause the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to
fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
A-15-9
<PAGE>
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-15-10
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:______________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
--------------------,
Authenticating Agent
By:_______________________
AUTHORIZED SIGNATORY
A-15-11
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-15-12
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-15-13
<PAGE>
EXHIBIT A-16
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
SUBJECT TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF
THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR , LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON INVESTING THE
ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN
A-16-1
<PAGE>
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT.
<TABLE>
<CAPTION>
===========================================================================================================================
<S> <C>
PERCENTAGE INTEREST EVIDENCED BY APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE MORTGAGE
THIS CERTIFICATE: N/A LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS RECEIVED ON
OR BEFORE CUT-OFF DATE:
$478,003,982
- ---------------------------------------------------------------------------------------------------------------------------
DATE OF POOLING AND SERVICING SERVICER: GE CAPITAL LOAN SERVICES, INC.
AGREEMENT: AS OF FEBRUARY 1, 1999
- ---------------------------------------------------------------------------------------------------------------------------
CUT-OFF DATE: FEBRUARY 1, 1999 SPECIAL SERVICER: GE CAPITAL REALTY GROUP, INC.
- ---------------------------------------------------------------------------------------------------------------------------
CLOSING DATE: FEBRUARY 10, 1999 TRUSTEE: LASALLE NATIONAL BANK
- ---------------------------------------------------------------------------------------------------------------------------
FIRST DISTRIBUTION DATE: MARCH 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
- ---------------------------------------------------------------------------------------------------------------------------
CLASS LR PERCENTAGE INTEREST: N/A PAYING AGENT: LASALLE NATIONAL BANK
- ---------------------------------------------------------------------------------------------------------------------------
CERTIFICATE NO.: LR-1
===========================================================================================================================
</TABLE>
A-16-2
<PAGE>
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, and
the REO Accounts, formed and sold by
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR STEARNS
COMMERCIAL MORTGAGE SECURITIES INC., THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT BEAR, STEARNS SECURITIES CORP.
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of February 1, 1999 (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), LaSalle National Bank, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class LR Certificates. The Certificates are designated as the
Bear Stearns Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 1999-C1 and are issued in the Classes of
Certificates as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests,
A-16-3
<PAGE>
rights, benefits, obligations, proceeds, and duties evidenced hereby and the
rights, duties and obligations of the Trustee. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. In the case of any conflict between
terms specified in this Certificate and terms specified in the Pooling and
Servicing Agreement, the terms of the Pooling and Servicing Agreement shall
govern.
This Class LR Certificate is a "residual interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as
amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat,
and take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income. The Holder of the largest Percentage Interest in the Class
LR Certificates shall be designated, in the in the manner provided under
Treasury Regulations Section 1.860F-4(d) and temporary Treasury Regulations
Section 301.6231(a)(7)-1T, as the "tax matters person" of the Lower-Tier REMIC.
By their acceptance thereof, the Holders of the largest Percentage Interest of
the Class LR Certificates hereby agrees irrevocably to appoint the Trustee as
their agent to perform all of the duties of the "tax matters person" for the
Lower-Tier REMIC.
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent to
the extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee (and in certain instances, the
Servicer) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account and Distribution Accounts will
be paid to the Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the
A-16-4
<PAGE>
address set forth therefor in the Certificate Register or, provided that such
Certificateholder has provided the Trustee with wire instructions in writing no
less than five Business Days prior to the related Record Date, by wire transfer
of immediately available funds to the account specified by such
Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentment and surrender of this Certificate at the
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholder shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust by the Trustee
or the Paying Agent as a result of such Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(g)
of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Each Person who has or who acquires any Ownership Interest in
a Class LR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under Section 5.02(d) of the
Pooling and Servicing Agreement to deliver payments to a Person other than such
Person. The rights of each Person acquiring any Ownership Interest in a Class LR
Certificate are expressly subject to the following provisions: (A) No Person
holding or acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection
A-16-5
<PAGE>
with any proposed Transfer of any Ownership Interest in a Class LR Certificate,
the Certificate Registrar shall require delivery to it, and no Transfer of any
Class LR Certificate shall be registered until the Certificate Registrar
receives, an affidavit substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit") from the proposed
Transferee, in form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such Transferee is not a
Disqualified Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person, and that it has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement and agrees to be bound by them; (C)
Notwithstanding the delivery of a Transfer Affidavit by a proposed Transferee
under clause (B) above, if the Certificate Registrar has actual knowledge that
the proposed Transferee is a Disqualified Organization or Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an Ownership
Interest in a Class LR Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class LR Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class LR Certificate and (2) not to transfer its Ownership
Interest in such Class LR Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in minimum Denominations of
$25,000 initial Certificate Balance, and in integral multiples of $1,000 in
excess thereof, with one Certificate of each such Class evidencing an additional
amount equal to the remainder of the initial Certificate Balance of such Class.
Subject to the terms of the Pooling and Servicing Agreement, the Class X
Certificates will be issued in book-entry form through the facilities of DTC in
minimum Denominations of $1,000,000 initial Notional Amount and in integral
multiples of $1,000 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class. Subject to the terms of the Pooling and Servicing
Agreement, the Non-Registered Certificates (other than the Class X Certificates
and the Residual Certificates) will be issued in fully registered, certificated
form, in minimum denominations of initial Certificate Balance of not less than
$250,000 and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Notional Amount of such Class. The Class R and Class LR
Certificates will be issuable only in one or more Definitive Certificates in
denominations representing Percentage Interests of not less than 25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in Section 5.02(h) of the
Pooling and Servicing Agreement) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
A-16-6
<PAGE>
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) the Servicer Remittance Date
shall in no event be later than the related Distribution Date,
(b) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
A-16-7
<PAGE>
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to modify Section 3.02(d) or any other provision of this
Agreement relating to the Pari Passu Loans; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respects, the
interests of any Certificateholder not consenting thereto and
such action will not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
g. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
h. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
A-16-8
<PAGE>
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment or the exercise of any power granted
to the Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal
Agent or any other specified person in accordance with such amendment, will not
result in the imposition of a tax on the REMIC constituted by the Trust Fund or
cause the Trust Fund (or either the Upper-Tier REMIC or Lower-Tier REMIC) to
fail to qualify as a REMIC.
At its option, on any Distribution Date on which the remaining
aggregate Stated Principal Balance of the Mortgage Pool is less than 1% of the
Initial Pool Balance, upon 60 days' prior notice given to the Trustee, Paying
Agent and each of the other parties to the Pooling and Servicing Agreement
(which notice the Paying Agent is required to promptly forward to
Certificateholders and Rating Agencies in the manner set forth in the Pooling
and Servicing Agreement), the Controlling Class Certificateholder holding the
largest aggregate Certificate Balance of the Controlling Class (the "Largest
Controlling Class Certificateholder") may purchase all, but not less than all,
of the Mortgage Loans and REO Properties in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates. If the Largest Controlling Class Certificateholder does not
exercise such purchase option, then the Servicer may purchase all of the
Mortgage Loans that are not Specially Serviced Mortgage Loans and the Special
Servicer may purchase all of the Specially Serviced Mortgage Loans and REO
Properties. If the Largest Controlling Class Certificateholder does not exercise
such purchase option and all of the remaining Mortgage Loans, Specially Serviced
Mortgage Loans and REO Properties are not purchased by the Servicer and the
Special Servicer pursuant to their respective options, then the holder of the
Class LR Certificates may purchase such assets then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has
A-16-9
<PAGE>
executed this Certificate on behalf of the Trust Fund as Trustee under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-16-10
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK, not in its
individual capacity but solely as
Trustee under the Pooling and
Servicing Agreement.
By:______________________________
AUTHORIZED OFFICER
Dated: _______________, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
--------------------,
Authenticating Agent
By: ______________________
AUTHORIZED SIGNATORY
A-16-11
<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:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN COM - as tenant in common UNIF GIFT MIN ACT - ____ Custodian
(Cust)
TEN ENT - as tenants by the under Uniform Gifts to
entireties Minors Act________
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
</TABLE>
Additional abbreviations may also be used, although not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
SIGNATURE GUARANTEED
A-16-12
<PAGE>
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________ for the account
of __________________________ account number ____________________ or, if mailed
by check, to _____________________________. Statements should be mailed to
_____________________. This information is provided by assignee named above, or
___________________, as its agent.
A-16-13
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
B-1
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
LOAN# LOAN NAME LOAN ADDRESS LOAN CITY
<S> <C> <C> <C>
16814 Timonium Crossing S.C. Timonium Road Timonium
16561 Landmark West Apartments Swartswood Road Newton
16496 Hancock Plaza SEC Tatum & Greenway Phoenix
9586 Gateway West Shopping Center Route 8 & Saulsbury Road Dover
8487 World Gym Plaza N/E/C Tilton Road & Cresson Avenue Northfield
16464 Stonecrest 9645, 9655 & 9680 Granite Drive San Diego
16393 Lomas Santa Fe Center 905993 Lomas Santa Fe Drive Solana Beach
9424 Brookwood Mobile Home Park 825 First Avenue East West Fargo
11411 People's Storage 7909 Broadway Everett
9327 Green Countrie Apartments 7841 Ridge Avenue Philadelphia
9565 Washington Tower 712 North Washington Avenue Dallas
16718 Gateway Inn 7050 Kirkman Rd. Orlando
11639 MAI Chaimson Headquarters 6822 Oak Hall Lane Columbia
8484 Eden Center 67516801 Wilson Boulevard Falls Church
12033 Montclair Arms Apartments 65 North Fullerton Avenue Montclair
16820 Simi Business Park West 65 abd 67 West Easy Street Simi Valley
12257 Yellowstone Shopping Center 6410 108th Street Forest Hills (Queens)
11384 Fox Hill Garden Offices 5855 Green Valley Circle Culver City
17137 Comfort Inn Black Mt. 585 North Carolina Highway 9 Black Mountain
11272 Fox Hill Park Offices 5839 Green Valley Circle Culver City
11931 580 Broadway 580 Broadway New York
9491 Main Street Commons 559573 Main Street Bethlehem
12050 Hilltop Shopping Center 541555 Reistertown Road Baltimore
17027 Budwey's Plaza Shopping Center 535 Division Street North Tonawanda
9291 Airport Thruway Plaza 5300 Sidney Simmons Boulevard Columbus
6019 525 Broadway 525 Broadway Santa Monica
17417 Holiday Inn Express 5164 National Rd. St. Clairsville
9280 The Arbor Plaza 50395065 State Road Saginaw
17704 Holiday Inn Express 4833 Hixson Pike Hixson
6129 Santa Fe Center 45024622 West Indian School Phoenix
9328 Abbey House 450 Domino Lane Philadelphia
16609 Simi Lockup 4495 East Industrial Street Simi Valley
16829 Ventura Business Park III 4464 McGrath and 2175 Goodyear Avenye Ventura
8722 The Lakes Apartment Complex 4343 Warm Springs Road Columbus
9144 Regent Place Apartments 426/432 South Norton; 427/439 Westminster Los Angeles
5296 Comfort Inn 422 East 32nd Street Holland
17735 42 W. 48th Street 42 W. 48th Street New York
11721 Strathmore/Orkney Realty Trust 42 Strathmore & 6, 10, 14 Orkney Road Boston
17918 Best Western Seven Seas 411 Hotel Circle South San Diego
9529 Washington Commons 40 Washington Ave. Dumont
8548 Hyde Park Office Condominiums 3841 Mechanicsville Road Doylestown
11839 Pitney Bowes 37 Executive Drive Danbury
17138 Holiday Inn Express 3620 Hamilton Boulevard Allentown
9436 3424 Simpson Ferry Road 3424 Simpson Ferry Road Camp Hill
16462 South Bay Marketplace 34003470 Highland Avenue San Diego
11647 3344 Castle Heights Apartments 3344 Castle Heights Apartments Los Angeles
12074 325 East Main Street 325 East Main Street Newark
11279 The Springs of Scottsdale 3212 North Miller Road Scottsdale
9709 Evergreen Valley Plaza 3202 Aborn Road San Jose
12022 North Village Apartments 3201 14th Street North St. Cloud
17702 Camino Encinitas Plaza 318330 El Camino Real Encinitas
12147 Kingman Square 31173157 Stockton Road & 1899 Detroit Avenue Kingman
12252 Narberth Hall Apartments 300 North Essex Avenue Narberth
11116 Madison Plaza 300 Main Street Madison
8939 Sutter Square Galleria 2929 K Street Sacramento
16498 Engine Supply Co 25222530 West Holly Street Phoenix
16363 Clarendon Apartments 247 E. 28th St. New York
6131 Southwest Industrial Center 2465 South 19th Avenue Phoenix
9556 Victoria Inn Apartments 2400 West 17th Avenue Longmont
17820 240 West 35th Street 240 West 35th Street New York
16830 Newbury Park Commerce Center 23632393 Teller Road Newbury Park
11687 Windom Gables Townhomes 23 West 61 Street Richfield
11552 Lake Hills Shopping Center 22602320 Black Rock Turnpike Fairfield
11207 Encanto Plaza 2222 West Encanto Boulevard Phoenix
16823 Simi Commerce Center 22052245 First Street Simi Valley
9125 Wyndmoor Garden Apartments 219 East Willow Grove Avenue Philadelphia
16826 Ventura Business Park II 20642290 Eastman Avenue Ventura
16957 200204 Santa Monica Blvd. 200204 Santa Monica Blvd. Santa Monica
11851 Turnpike Shopping Center 19012009 Black Rock Turnpike Fairfield
11423 Tropicana Royale Apartments 1900 East Tropicana Avenue Las Vegas
11472 Ramada Inn & Holiday Inn 1900 AB East Elizabeth Street Brownsville
6561 Aborn Shopping Center 19001978 Aborn Rd. San Jose
9513 Cohas Brook Shopping Center 1875 South Willow Street Manchester
11516 Kingsbury Square 182 Summer Street Kingstown
12073 Stoneridge Corporate Park 180 Sheree Blvd Uwchlan
11999 Holiday Inn Express 16855 S. Harlan Road Lathrop
11260 Radical Media Offices 163038 12th Street Santa Monica
5193 Encino Medical Tower 16260 Ventura Boulevard Encino
11265 MultiMedia Office 1615 16th Street & 1616 17th Street Santa Monica
11845 Midtown Mall 160Main Street Sanford
11102 1509 Glen Avenue Associates 1601 Schlumberger Drive Moorestown
9691 Clemens Place Apartments 16 Owen Street Hartford
6073 155 Spring Street 155 Spring Street New York
17741 Silent Valley MHP 144 Silent Valley Road Lockhart
11868 144 East 44th Street 144 East 44th Street New York
12178 The Drexel Building 1425 Walnut Street Philadelphia
11997 Kittridge Apartments 14220 Kittridge Street Van Nuys
16956 Silicon Graphics 14151419 2nd Street Santa Monica
11599 Sandy Plaza 1381014090 NE Sandy Boulevard Portland
11853 1380 University Avenue 1380 University Avenue Bronx
17140 Comfort Inn Concord 1370 Monument Boulevard Concord
12075 123 East Main Street 123 East Main Street Newark
11978 Timber Creek Apartments 12231231 North Road Niles
16936 120 Old Post Road 120 Old Post Road Rye
9056 Highlander Shopping Center 1190165 East Foothill Boulevard Arcadia
12253 Merion Court Apartments 118 Montgomery Avenue Bala Cynwyd
16771 Central Park Mews 117 West 58th Street New York
9382 Colonial Grand Pacific Building 11131123 First Avenue Seattle
11098 Lowden Gardens 111123 Bath Avenue Long Branch
17187 La Cienega Pavilion 11061112 North La Cienga West Hollywood
9072 Tully Road Shopping Center 1055 1095 Tully Road San Jose
9422 Houma Kmart 10121015 West Park Avenue Houma
17194 101 Broadway 101 Broadway Santa Monica
9412 Crown Theater 100 Quarry Road Trumbull
8747 Hamilton Station Apartments 100 Hamilton Station Drive Columbus
11506 Woodstream Apartments 100 Conestoga Drive Evesham Township
9100 Patidar Hotel Portfolio
12203 Rex Haven & Rex Terrace Apartments Village of Palm Springs
8673 Meadow Valley & Valley Stream MHP
11162 Pine Beil Portfolio New York
11895 Dixon Landing & Branham Self Storage
11969 Founders Plaza & Tower 14
17637 Highland Chateau & Seward Flats
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
STATE ZIP CODE GROSS MORTGAGE NET MORTGAGE ORIGINAL CUT OFF MATURITY ORIGINAL
RATE RATE BALANCE DATE BALANCE BALANCE TERM
<S> <C> <C> <C> <C> <C> <C> <C>
MD 21093 7.4750% 7.4180% 5,600,000.00 5,596,985.92 4,943,928.97 120
NJ 07860 6.8300% 6.7730% 4,600,000.00 4,596,973.85 3,993,397.29 120
AZ 85032 8.1500% 8.0930% 4,505,000.00 4,501,162.50 4,043,769.16 120
DE 19904 7.1900% 7.1330% 6,988,763.29 6,965,929.20 5,634,165.03 118
NJ 08225 8.3200% 8.2630% 3,500,000.00 3,494,612.54 2,911,647.70 120
CA 92123 6.7050% 6.6480% 18,000,000.00 17,947,054.90 15,575,938.02 120
CA 92075 6.9340% 6.8790% 2,500,000.00 2,483,822.93 1,907,933.31 180
ND 58078 6.3400% 6.2830% 4,225,000.00 4,211,360.45 3,618,976.84 120
WA 98203 7.2200% 7.1630% 2,600,000.00 2,591,689.94 2,093,923.95 120
PA 19128 6.8060% 6.7490% 2,450,000.00 2,430,143.29 2,078,035.33 96
TX 85246 6.8600% 6.8030% 4,300,000.00 4,284,147.62 3,736,199.54 120
FL 32809 8.2500% 8.1930% 6,400,000.00 6,400,000.00 5,311,237.88 120
MD 21045 6.9400% 6.8830% 1,500,000.00 1,465,783.38 13,626.22 120
VA 22044 7.0000% 6.9430% 11,000,000.00 10,838,384.65 359,237.42 240
NJ 07042 7.3100% 7.2530% 2,240,000.00 2,235,631.52 1,809,212.05 120
CA 93065 7.1400% 7.0830% 2,975,000.00 2,969,023.85 2,290,101.96 180
NY 11375 6.7750% 6.7180% 1,800,000.00 1,798,796.56 1,560,311.52 120
CA 90232 6.3100% 6.2530% 1,400,000.00 1,395,446.43 1,037,172.75 180
NC 28711 8.4200% 8.3630% 1,900,000.00 1,898,579.04 1,584,662.81 120
CA 90232 6.3100% 6.2530% 1,400,000.00 1,395,446.43 1,037,172.75 180
NY 10012 7.1500% 7.0930% 6,030,000.00 6,019,831.38 2,514,757.06 180
PA 18018 7.3800% 7.3230% 3,950,000.00 3,929,207.95 2,548,484.88 180
MD 21215 8.2500% 8.1930% 1,500,000.00 1,487,880.56 37,072.95 180
NY 14120 8.8750% 8.8180% 3,025,000.00 3,022,990.88 2,554,513.56 120
GA 31904 6.9600% 6.9030% 5,800,000.00 5,784,051.28 4,429,800.67 180
CA 90401 6.7400% 6.6830% 3,500,000.00 3,446,735.31 2,360,197.11 120
OH 43950 8.3400% 8.2830% 2,100,000.00 2,098,397.56 1,747,563.31 120
MI 48603 6.8000% 6.7430% 2,200,000.00 2,192,375.45 1,376,099.21 180
TN 37343 8.5000% 8.4430% 1,830,000.00 1,828,277.20 1,457,332.19 120
AZ 85031 6.6900% 6.6330% 1,325,000.00 1,295,673.80 22,827.07 180
PA 19128 6.8060% 6.7490% 1,400,000.00 1,388,653.31 1,187,448.76 96
CA 93065 7.1400% 7.0830% 2,800,000.00 2,794,375.39 2,155,390.08 180
CA 93003 7.1400% 7.0830% 2,275,000.00 2,270,430.01 1,751,254.44 180
GA 31909 6.0150% 5.9580% 6,400,000.00 6,377,621.11 4,673,815.29 180
CA 90020 6.9100% 6.8530% 7,600,000.00 7,516,100.56 240,774.40 240
MI 49423 7.2300% 7.1730% 1,600,000.00 1,593,283.72 1,289,191.59 120
NY 10036 7.2500% 7.1930% 5,500,000.00 5,496,817.11 4,827,887.39 120
MA 02135 6.4000% 6.3430% 5,000,000.00 4,972,654.50 3,864,122.46 120
CA 92108 7.9400% 7.8830% 9,500,000.00 9,500,000.00 6,683,279.30 120
NJ 07628 7.3500% 7.2930% 9,400,000.00 9,382,148.57 8,272,776.61 120
PA 18901 6.9300% 6.8730% 6,100,000.00 6,083,091.08 4,652,536.62 180
CT 06810 7.3000% 7.2430% 4,400,000.00 4,394,971.78 3,867,885.70 120
PA 18103 8.3750% 8.3180% 3,460,000.00 3,457,382.84 2,882,137.51 120
PA 17011 8.0300% 7.9730% 740,000.00 737,992.20 610,449.73 120
CA 91950 6.9350% 6.8780% 11,600,000.00 11,567,888.28 10,100,441.28 120
CA 90034 6.4500% 6.3930% 2,000,000.00 1,995,211.18 1,718,249.13 120
DE 19711 6.7000% 6.6430% 3,900,000.00 3,891,331.65 3,090,620.55 120
AZ 85251 6.5000% 6.4430% 3,500,000.00 3,491,722.05 3,011,149.02 120
CA 95630 7.2300% 7.1730% 4,240,000.00 4,220,657.19 3,721,328.28 120
MN 56303 6.7500% 6.6930% 4,000,000.00 3,991,112.42 3,465,107.77 120
CA 92024 7.5000% 7.4430% 3,300,000.00 3,296,925.79 2,680,188.33 120
AZ 86401 7.9850% 7.9280% 4,150,000.00 4,146,242.00 3,710,580.30 120
PA 19072 6.4000% 6.3430% 3,250,000.00 3,237,860.96 2,550,380.09 120
NJ 07940 6.5500% 6.4930% 2,650,000.00 2,633,702.98 2,089,764.31 120
CA 95816 6.8850% 6.8280% 4,250,000.00 4,240,876.43 3,695,123.95 120
AZ 85009 7.7000% 7.6430% 2,475,000.00 2,465,191.42 2,099,943.99 84
NY 10016 6.8125% 6.7555% 10,500,000.00 10,467,141.83 8,991,733.04 120
AZ 85007 6.7050% 6.6480% 1,100,000.00 1,055,045.28 9,742.23 120
CO 80503 5.7600% 5.7030% 4,200,000.00 4,184,392.31 3,536,895.12 120
NY 10001 8.1500% 8.0930% 8,000,000.00 7,996,604.59 7,179,541.94 120
CA 91320 7.1400% 7.0830% 3,900,000.00 3,892,165.73 3,002,150.46 180
MN 55419 6.4000% 6.3430% 2,400,000.00 2,343,498.13 19,238.35 120
CT 06430 6.1700% 6.1130% 3,700,000.00 3,687,541.57 3,153,858.75 120
AZ 85040 7.2500% 7.1930% 3,100,000.00 3,080,120.88 2,499,434.23 120
CA 93065 7.1400% 7.0830% 5,050,000.00 5,039,855.62 3,887,399.96 180
PA 19118 6.7606% 6.7036% 3,145,512.24 3,138,435.59 2,729,296.29 118
CA 93003 7.1400% 7.0830% 4,150,000.00 4,141,663.53 3,194,596.01 180
CA 90401 7.1250% 7.0680% 2,175,000.00 2,175,000.00 1,902,739.00 120
CT 06430 5.8400% 5.7830% 1,800,000.00 1,793,436.42 1,519,466.20 120
NV 89119 6.1500% 6.0930% 5,000,000.00 4,987,126.66 4,259,018.49 120
TX 78523 7.8000% 7.7430% 5,375,000.00 5,354,937.80 4,405,462.78 120
CA 95121 6.9900% 6.9330% 4,000,000.00 3,986,631.56 3,198,609.40 120
NH 03103 6.9600% 6.9030% 4,300,000.00 4,275,391.78 3,419,886.06 120
MA 02364 6.9600% 6.9030% 5,000,000.00 4,977,854.14 3,155,779.92 180
PA 19341 6.6000% 6.5430% 6,000,000.00 5,986,156.79 4,505,507.07 180
CA 95330 7.7000% 7.6430% 2,650,000.00 2,645,267.70 2,165,524.79 120
CA 90404 6.2100% 6.1530% 1,945,000.00 1,938,515.04 1,433,991.34 180
CA 91416 7.9700% 7.9130% 5,556,400.93 5,550,946.67 4,981,058.14 113
CA 90404 6.2100% 6.1530% 1,645,000.00 1,639,515.29 1,212,810.16 180
ME 04073 8.0000% 7.9430% 2,300,000.00 2,293,720.33 1,895,708.52 120
NJ 08057 7.0100% 6.9530% 3,750,000.00 3,734,276.13 3,271,852.28 120
CT 06105 7.6050% 7.5480% 14,100,000.00 14,100,000.00 12,486,498.66 120
NY 10012 7.1250% 7.0680% 5,489,903.38 5,478,561.50 4,228,679.72 177
TX 78644 8.6200% 8.5630% 1,500,000.00 1,500,000.00 39,589.27 180
NY 10017 6.8750% 6.8180% 4,000,000.00 3,986,333.66 3,187,107.84 120
PA 19102 6.7800% 6.7230% 2,900,000.00 2,891,635.54 2,514,592.22 120
CA 91405 6.6500% 6.5930% 4,100,000.00 4,087,766.98 3,542,501.00 120
CA 90401 7.1250% 7.0680% 1,300,000.00 1,300,000.00 1,137,269.29 120
OR 97230 7.6600% 7.6030% 1,675,000.00 1,671,981.15 1,367,157.94 120
NY 10452 7.2500% 7.1930% 6,500,000.00 6,479,346.66 5,239,614.49 120
CA 94520 8.2700% 8.2130% 2,000,000.00 2,000,000.00 1,660,695.59 120
DE 19711 6.8000% 6.7430% 3,500,000.00 3,492,381.60 2,782,471.75 120
OH 44446 7.1340% 7.0770% 3,350,000.00 3,347,989.68 2,577,890.93 180
NY 10580 7.6600% 7.6030% 4,200,000.00 4,176,695.99 90,986.96 180
CA 91006 6.9500% 6.8930% 4,700,000.00 4,679,984.89 3,588,262.20 180
PA 19004 6.5900% 6.5330% 2,190,000.00 2,176,629.82 1,729,241.82 120
NY 10019 6.4600% 6.4030% 7,000,000.00 6,978,073.89 6,016,306.44 120
WA 98101 7.4000% 7.3430% 2,385,000.00 2,383,684.49 2,101,596.14 120
NJ 07740 6.8200% 6.7630% 1,775,000.00 1,767,185.64 1,347,063.34 180
CA 90069 8.4100% 8.3530% 1,510,000.00 1,509,420.92 1,363,309.65 120
CA 95121 7.3600% 7.3030% 1,850,000.00 1,838,389.57 1,496,604.91 120
LA 70364 7.3350% 7.2780% 2,350,000.00 2,332,820.79 1,899,993.40 120
CA 90401 7.8000% 7.7430% 2,000,000.00 1,994,550.49 44,084.81 180
CT 06606 7.2500% 7.1930% 6,400,000.00 6,373,242.79 5,159,924.60 120
GA 31908 6.0150% 5.9580% 9,500,000.00 9,466,781.34 6,937,694.57 180
NJ 08053 6.8200% 6.7630% 4,150,000.00 4,116,455.03 3,302,056.84 120
7.6200% 7.5630% 6,080,000.00 6,080,000.00 4,229,832.99 120
FL 33461 7.5500% 7.4930% 2,700,000.00 2,698,582.43 2,388,167.30 120
NY 13820 6.7000% 6.6430% 1,300,000.00 1,295,014.83 1,124,657.72 120
NY 7.0500% 6.9930% 2,750,000.00 2,731,669.14 2,203,605.50 120
CA 7.6500% 7.5930% 3,900,000.00 3,896,489.00 3,181,663.50 120
7.4550% 7.3980% 20,900,000.00 20,833,834.70 18,443,461.79 120
MN 7.3050% 7.2480% 4,225,000.00 4,222,597.28 3,713,943.28 120
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
REMAINING MATURITY ARD DATE ARD RATE ORIGINAL FIRST MONTHLY P&I APPRAISED CUT OFF
TERM DATE STEP AMORTIZATION PAYMENT VALUE DATE LTV
DATE
<S> <C> <C> <C> <C> <C> <C> <C> <C>
119 1/1/09 N/A 360 2/1/99 39,060.19 9,600,000 58.30%
119 1/1/09 N/A 360 2/1/99 30,080.54 7,100,000 64.75%
118 12/1/08 200 360 1/1/99 33,528.38 6,300,000 71.45%
115 9/1/08 N/A 298 12/1/98 50,366.44 10,840,000 64.26%
118 12/1/08 N/A 300 1/1/99 27,759.67 5,100,000 68.52%
116 10/1/08 N/A 360 11/1/98 116,209.74 30,000,000 59.82%
171 5/1/13 N/A 360 6/1/98 16,521.90 3,727,500 66.64%
116 10/1/08 N/A 360 11/1/98 26,261.86 6,500,000 64.79%
117 11/1/08 N/A 300 12/1/98 18,742.76 4,000,000 64.79%
89 7/1/06 N/A 300 8/1/98 17,014.07 4,385,000 55.42%
115 9/1/08 N/A 360 10/1/98 28,204.85 6,300,000 68.00%
120 2/1/09 N/A 300 3/1/99 50,460.81 12,000,000 53.33%
116 10/1/08 N/A 120 11/1/98 17,369.92 4,100,000 35.75%
232 6/1/18 N/A 240 7/1/98 85,282.88 32,000,000 33.87%
118 12/1/08 N/A 300 1/1/99 16,277.56 3,100,000 72.12%
177 11/1/13 N/A 360 12/1/98 20,073.26 4,000,000 74.23%
119 1/1/09 N/A 360 2/1/99 11,704.69 6,250,000 28.78%
176 10/1/13 N/A 360 11/1/98 8,674.75 3,500,000 39.87%
119 1/1/09 N/A 300 2/1/99 15,197.02 3,150,000 60.27%
176 10/1/13 N/A 360 11/1/98 8,674.75 2,450,000 56.96%
179 1/1/14 N/A 240 2/1/99 47,294.99 16,000,000 37.62%
175 9/1/13 N/A 300 10/1/98 28,882.53 5,400,000 72.76%
177 11/1/13 N/A 180 12/1/98 14,552.11 2,500,000 59.52%
119 1/1/09 N/A 300 2/1/99 25,127.26 5,200,000 58.13%
176 10/1/13 N/A 360 11/1/98 38,431.86 9,750,000 59.32%
112 6/1/08 N/A 240 7/1/98 26,591.94 6,890,000 50.03%
119 1/1/09 N/A 300 2/1/99 16,683.94 3,300,000 63.59%
177 11/1/13 N/A 300 12/1/98 15,269.59 2,800,000 78.30%
119 1/1/09 N/A 276 2/1/99 15,117.38 2,900,000 63.04%
173 7/1/13 N/A 180 8/1/98 11,681.02 3,800,000 34.10%
89 7/1/06 N/A 300 8/1/98 9,722.33 2,385,000 58.22%
177 11/1/13 N/A 360 12/1/98 18,892.48 6,400,000 43.66%
177 11/1/13 N/A 360 12/1/98 15,350.14 3,150,000 72.08%
176 10/1/13 N/A 360 11/1/98 38,432.98 8,650,000 73.73%
234 8/1/18 N/A 240 9/1/98 58,512.85 12,900,000 58.26%
116 10/1/08 N/A 300 11/1/98 11,544.30 2,320,000 68.68%
119 1/1/09 N/A 360 2/1/99 37,519.70 12,000,000 45.81%
116 10/1/08 N/A 300 11/1/98 33,448.59 8,100,000 61.39%
120 2/1/09 N/A 240 3/1/99 79,107.43 16,900,000 56.21%
117 11/1/08 N/A 360 12/1/98 64,763.38 12,400,000 75.66%
176 10/1/13 N/A 360 11/1/98 40,297.09 8,300,000 73.29%
118 12/1/08 N/A 360 1/1/99 30,165.12 10,000,000 43.95%
119 1/1/09 N/A 300 2/1/99 27,570.00 5,500,000 62.86%
117 11/1/08 N/A 300 12/1/98 5,726.15 1,100,000 67.09%
116 10/1/08 N/A 360 11/1/98 76,669.37 15,500,000 74.63%
117 11/1/08 N/A 360 12/1/98 12,575.67 2,950,000 67.63%
118 12/1/08 N/A 300 1/1/99 26,822.54 4,900,000 79.41%
117 11/1/08 N/A 360 12/1/98 22,122.38 10,050,000 34.74%
113 7/1/08 N/A 360 8/1/98 28,866.78 6,920,000 60.99%
117 11/1/08 N/A 360 12/1/98 25,943.92 6,000,000 66.52%
119 1/1/09 N/A 300 2/1/99 24,386.71 5,150,000 64.02%
118 12/1/08 N/A 360 1/1/99 30,407.85 5,675,000 73.06%
117 11/1/08 N/A 300 12/1/98 21,741.59 4,340,000 74.61%
115 9/1/08 N/A 300 10/1/98 17,975.87 8,700,000 30.27%
117 11/1/08 N/A 360 12/1/98 27,947.88 6,000,000 70.68%
81 11/1/05 N/A 264 12/1/98 19,480.94 3,360,000 73.37%
116 10/1/08 N/A 360 11/1/98 69,241.14 16,800,000 62.30%
113 7/1/08 N/A 120 8/1/98 12,605.32 4,000,000 26.38%
116 10/1/08 N/A 360 11/1/98 24,536.75 5,900,000 70.92%
119 1/1/09 N/A 360 2/1/99 59,539.85 14,000,000 57.12%
177 11/1/13 N/A 360 12/1/98 26,314.52 5,450,000 71.42%
116 10/1/08 N/A 120 11/1/98 27,129.56 5,960,000 39.32%
116 10/1/08 N/A 360 11/1/98 22,589.37 9,000,000 40.97%
114 8/1/08 N/A 300 9/1/98 22,407.01 4,300,000 71.63%
177 11/1/13 N/A 360 12/1/98 34,073.93 6,750,000 74.66%
115 9/1/08 N/A 358 12/1/98 20,459.16 4,250,000 73.85%
177 11/1/13 N/A 360 12/1/98 28,001.35 6,100,000 67.90%
120 2/1/09 N/A 360 3/1/99 14,653.38 4,200,000 51.79%
116 10/1/08 N/A 360 11/1/98 10,607.45 9,800,000 18.30%
117 11/1/08 N/A 360 12/1/98 30,461.41 13,300,000 37.50%
116 10/1/08 N/A 300 11/1/98 40,775.52 8,700,000 61.55%
117 11/1/08 N/A 300 12/1/98 28,245.66 7,850,000 50.79%
116 10/1/08 N/A 360 11/1/98 31,660.19 6,000,000 71.26%
176 10/1/13 N/A 300 11/1/98 35,211.48 9,300,000 53.53%
177 11/1/13 N/A 360 12/1/98 38,319.53 12,800,000 46.77%
118 12/1/08 N/A 300 1/1/99 19,929.30 3,850,000 68.71%
176 10/1/13 N/A 360 11/1/98 11,925.15 4,100,000 47.28%
111 5/1/08 N/A 353 1/1/99 40,851.69 8,500,000 65.31%
176 10/1/13 N/A 360 11/1/98 10,085.79 3,000,000 54.65%
117 11/1/08 N/A 300 12/1/98 17,751.77 3,450,000 66.48%
114 8/1/08 N/A 360 9/1/98 24,974.03 5,300,000 70.46%
120 2/1/09 N/A 360 3/1/99 99,605.00 21,000,000 67.14%
174 8/1/13 N/A 357 12/1/98 37,075.97 9,300,000 58.91%
180 2/1/14 N/A 180 3/1/99 14,876.79 2,850,000 52.63%
117 11/1/08 N/A 300 12/1/98 27,953.01 7,500,000 53.15%
116 10/1/08 N/A 360 11/1/98 18,867.21 4,200,000 68.85%
116 10/1/08 N/A 360 11/1/98 26,320.56 5,240,000 78.01%
120 2/1/09 N/A 360 3/1/99 8,758.34 3,000,000 43.33%
118 12/1/08 N/A 300 1/1/99 12,552.95 2,600,000 64.31%
117 11/1/08 N/A 300 12/1/98 46,982.45 9,365,000 69.19%
120 2/1/09 N/A 300 3/1/99 15,795.74 3,750,000 53.33%
118 12/1/08 N/A 300 1/1/99 24,292.52 4,375,000 79.83%
179 1/1/14 N/A 360 2/1/99 22,589.92 6,500,000 51.51%
178 12/1/13 N/A 180 1/1/99 39,317.37 7,100,000 58.83%
174 8/1/13 N/A 360 9/1/98 31,111.55 7,500,000 62.40%
115 9/1/08 N/A 300 10/1/98 14,910.43 2,825,000 77.05%
116 10/1/08 N/A 360 11/1/98 44,060.78 16,000,000 43.61%
119 1/1/09 N/A 360 2/1/99 16,513.26 3,750,000 63.56%
174 8/1/13 N/A 360 9/1/98 11,595.33 2,900,000 60.94%
119 1/1/09 N/A 360 2/1/99 11,514.42 2,400,000 62.89%
114 8/1/08 N/A 300 9/1/98 13,503.31 3,400,000 54.07%
113 7/1/08 N/A 300 8/1/98 17,114.86 3,400,000 68.61%
179 1/1/14 N/A 180 2/1/99 18,882.84 3,700,000 53.91%
116 10/1/08 N/A 300 11/1/98 46,259.64 8,550,000 74.54%
176 10/1/13 N/A 360 11/1/98 57,048.95 14,000,000 67.62%
113 7/1/08 N/A 300 8/1/98 28,856.53 5,300,000 77.67%
120 2/1/09 N/A 240 3/1/99 49,427.16 10,460,000 58.13%
119 1/1/09 N/A 360 2/1/99 18,971.32 3,700,000 72.93%
115 9/1/08 N/A 360 10/1/98 8,388.61 1,700,000 76.18%
114 8/1/08 N/A 300 9/1/98 19,524.23 3,830,000 71.32%
119 1/1/09 N/A 300 2/1/99 29,202.25 6,460,000 60.32%
115 9/1/08 N/A 360 10/1/98 145,492.36 30,800,000 67.64%
119 1/1/09 N/A 360 2/1/99 28,979.73 5,650,000 74.74%
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
U/W ADMINISTRATIVE INTEREST REAL PROPERTY LIEN POSITION PREPAYMENT EFFECTIVE FREELY CALLABLE
DSCR FEE RATE ACCRUAL INTEREST DESCRIPTION LOCKOUT PERIOD
<S> <C> <C> <C> <C> <C> <C> <C>
1.63 0.00057 Actual/360 Fee First Defeasance 120 0
1.65 0.00057 Actual/360 Fee First Defeasance 120 0
1.33 0.00057 Actual/360 Leasehold First Defeasance 120 0
1.28 0.00057 Actual/360 Fee First Defeasance 118 0
1.44 0.00057 Actual/360 Fee First Defeasance 120 0
1.55 0.00057 Actual/360 Fee First Defeasance 120 0
1.49 0.00055 Actual/360 Fee First Defeasance 180 0
1.71 0.00057 Actual/360 Fee First Defeasance 120 0
1.59 0.00057 Actual/360 Fee First Defeasance 117 3
2.44 0.00057 Actual/360 Fee First Defeasance 96 0
1.68 0.00057 Actual/360 Fee First Defeasance 120 0
1.76 0.00057 Actual/360 Fee First Defeasance 120 0
1.72 0.00057 Actual/360 Fee First Defeasance 120 0
2.65 0.00057 Actual/360 Fee First Defeasance 240 0
1.37 0.00057 Actual/360 Fee First Defeasance 120 0
1.42 0.00057 Actual/360 Fee First Defeasance 180 0
2.80 0.00057 Actual/360 Fee First Defeasance 117 3
2.27 0.00057 Actual/360 Fee First Defeasance 180 0
1.57 0.00057 Actual/360 Fee First Defeasance 120 0
1.82 0.00057 Actual/360 Fee First Defeasance 180 0
2.27 0.00057 Actual/360 Fee First Defeasance 180 0
1.56 0.00057 Actual/360 Fee First Defeasance 180 0
1.40 0.00057 Actual/360 Fee First Defeasance 180 0
1.41 0.00057 Actual/360 Fee First Defeasance 120 0
1.83 0.00057 Actual/360 Fee First Defeasance 180 0
1.65 0.00057 Actual/360 Fee First Defeasance 120 0
1.79 0.00057 Actual/360 Fee First Defeasance 120 0
1.40 0.00057 Actual/360 Fee First Defeasance 180 0
1.84 0.00057 Actual/360 Fee First Defeasance 120 0
1.94 0.00057 Actual/360 Fee First Defeasance 180 0
2.22 0.00057 Actual/360 Fee First Defeasance 96 0
2.76 0.00057 Actual/360 Fee First Defeasance 180 0
1.42 0.00057 Actual/360 Fee First Defeasance 180 0
1.63 0.00057 Actual/360 Fee First Defeasance 180 0
1.51 0.00057 Actual/360 Fee First Defeasance 240 0
2.28 0.00057 Actual/360 Fee First Defeasance 120 0
2.26 0.00057 Actual/360 Fee First Defeasance 120 0
1.56 0.00057 30/360 Fee First Defeasance 120 0
1.53 0.00057 Actual/360 Leasehold First Defeasance 120 0
1.32 0.00057 Actual/360 Fee First Defeasance 120 0
1.60 0.00057 Actual/360 Fee First Defeasance 180 0
2.07 0.00057 Actual/360 Fee First Defeasance 120 0
1.61 0.00057 Actual/360 Fee First Defeasance 120 0
1.47 0.00057 Actual/360 Fee First Defeasance 120 0
1.40 0.00057 Actual/360 Fee First Defeasance 120 0
1.61 0.00057 Actual/360 Fee First Defeasance 120 0
1.37 0.00057 Actual/360 Fee First Defeasance 120 0
3.70 0.00057 Actual/360 Fee First Defeasance 120 0
1.47 0.00057 Actual/360 Fee First Defeasance 120 0
1.61 0.00057 Actual/360 Fee First Defeasance 120 0
1.53 0.00057 Actual/360 Fee First Defeasance 120 0
1.33 0.00057 Actual/360 Leasehold First Defeasance 120 0
1.46 0.00057 Actual/360 Fee First Defeasance 120 0
2.57 0.00057 Actual/360 Fee First Defeasance 119 1
1.69 0.00057 Actual/360 Leasehold First Defeasance 119 1
1.38 0.00057 Actual/360 Fee First Defeasance 84 0
1.68 0.00057 Actual/360 Fee First > 1% or YM 60 3
1.84 0.00057 Actual/360 Fee First Defeasance 120 0
1.98 0.00057 Actual/360 Fee First Defeasance 114 6
1.42 0.00057 Actual/360 Fee First Defeasance 120 0
1.45 0.00057 Actual/360 Fee First Defeasance 180 0
1.69 0.00057 Actual/360 Fee First Defeasance 120 0
2.73 0.00057 Actual/360 Fee First Defeasance 120 0
1.37 0.00057 Actual/360 Fee First Defeasance 120 0
1.43 0.00057 Actual/360 Fee First Defeasance 180 0
1.38 0.00057 Actual/360 Fee First Defeasance 118 0
1.45 0.00057 Actual/360 Fee First Defeasance 180 0
2.03 0.00057 Actual/360 Fee First Defeasance 120 0
6.34 0.00057 Actual/360 Fee First Defeasance 120 0
2.93 0.00057 Actual/360 Fee First Defeasance 120 0
1.71 0.00057 Actual/360 Fee First Defeasance 120 0
1.83 0.00057 Actual/360 Fee First Defeasance 120 0
1.38 0.00057 Actual/360 Fee First Defeasance 120 0
1.89 0.00057 Actual/360 Fee First Defeasance 180 0
2.16 0.00057 Actual/360 Fee First > 1% or YM 48 0
1.80 0.00057 Actual/360 Fee First Defeasance 120 0
2.57 0.00057 Actual/360 Fee First Defeasance 180 0
1.45 0.00057 Actual 360 Fee First Defeasance 113 0
2.32 0.00057 Actual/360 Fee First Defeasance 180 0
1.41 0.00057 Actual/360 Fee First Defeasance 120 0
1.66 0.00057 Actual/360 Fee First Defeasance 120 0
1.46 0.00057 Actual/360 Fee/Leashold First Defeasance 120 0
1.94 0.00057 Actual/360 Fee First Defeasance 177 0
1.41 0.00057 Actual/360 Fee First Defeasance 180 0
1.53 0.00057 Actual/360 Fee First Defeasance 120 0
1.64 0.00057 Actual/360 Fee First Defeasance 119 1
1.57 0.00057 Actual/360 Fee First Defeasance 120 0
2.35 0.00057 Actual/360 Fee First Defeasance 120 0
1.46 0.00057 Actual/360 Fee First Defeasance 120 0
1.37 0.00057 Actual/360 Fee First Defeasance 120 0
1.73 0.00057 Actual/360 Fee First Defeasance 120 0
1.39 0.00057 Actual/360 Fee First Defeasance 120 0
1.86 0.00057 Actual/360 Fee First Defeasance 180 0
1.30 0.00057 Actual/360 Fee First Defeasance 180 0
1.85 0.00057 Actual/360 Fee First Defeasance 180 0
1.45 0.00057 Actual/360 Fee First Defeasance 120 0
2.42 0.00057 Actual/360 Fee First Defeasance 119 1
1.61 0.00057 Actual/360 Fee First Defeasance 120 0
1.85 0.00057 Actual/360 Fee First Defeasance 180 0
1.38 0.00057 Actual/360 Fee First Defeasance 120 0
1.86 0.00057 Actual/360 Fee First Defeasance 120 0
1.50 0.00057 Actual/360 Fee First Defeasance 120 0
1.33 0.00057 Actual/360 Fee First Defeasance 180 0
1.38 0.00057 Actual/360 Fee First Defeasance 120 0
1.70 0.00057 Actual/360 Fee First Defeasance 180 0
1.46 0.00057 Actual/360 Fee First Defeasance 120 0
2.18 0.00057 Actual/360 Fee First Defeasance 120 0
1.47 0.00057 Actual/360 Fee First Defeasance 120 0
1.63 0.00057 Actual/360 Fee First Defeasance 120 0
1.50 0.00057 Actual/360 Fee First Defeasance 120 0
1.61 0.00057 Actual/360 Fee First Defeasance 120 0
1.33 0.00057 Actual/360 Fee First Defeasance 120 0
1.48 0.00057 Actual/360 Fee First Defeasance 120 0
</TABLE>
<PAGE>
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Bear Stearns Commercial Mortgage Securities Inc.
245 Park Avenue
New York, New York 10167
Attention: James G. Reichek
LaSalle National Bank,
as Certificate Registrar
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60603
Attention: Corporate Trust Services Group -- Bear Stearns
Commercial Mortgage Securities Inc. Series 1999-C1
Re: Transfer of Bear Stearns Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the
Pooling and Servicing Agreement dated as of February 1, 1999 (the "Pooling and
Servicing Agreement"), by and among Bear Stearns Commercial Mortgage Securities
Inc., as Depositor, GE Capital Loan Services, Inc., as Servicer, GE Capital
Realty Group, Inc., as Special Servicer, ABN AMRO Bank N.V., as Fiscal Agent and
LaSalle National Bank, as Trustee on behalf of the holders of Bear Stearns
Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 in connection with the transfer by
____________________ (the "Seller") to the undersigned (the "Purchaser") of
$_____________________ Balance of Class _____ Certificates (the "Certificates").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
1. In connection with such transfer, the Purchaser hereby
represents and warrants to you and the addressees hereof as follows:1
(a) [ ] The Purchaser is purchasing a Class of Regular
Certificates and is an institutional "accredited
investor" (an entity meeting the requirements of
Rule 501(a)(1), (2), (3) or (7) of Regulation D
1 Purchaser must include one of the following two certifications, and if
it certifies under paragraph (b) it must include the further
certification as to the type of entity as indicated therein.
C-1
<PAGE>
under the Securities Act of 1933, as amended (the
"1933 Act") or an entity all of the equity owners
of which come within such paragraphs) and has such
knowledge and experience in financial and business
matters as to be capable of evaluating the merits
and risks of its investment in the Certificates,
and the Purchaser and any accounts for which it is
acting are each able to bear the economic risk of
the Purchaser's or such account's investment. The
Purchaser is acquiring the Certificates purchased
by it for its own account or for one or more
accounts (each of which is an "institutional
accredited investor") as to each of which the
Purchaser exercises sole investment discretion, and
is not acquiring such Certificates with a view to
any resale or distribution thereof other than in
accordance with the restrictions set forth in
Section 5.02 of the Pooling and Servicing
Agreement. The Purchaser hereby undertakes to
reimburse the Trust Fund for any costs incurred by
it in connection with this transfer.
(b) [ ] (i) The Purchaser is purchasing a Class of Regular
Certificates or a Class of Residual Interests and
is aware that (x) (in the case of the initial
transfer) the transfer is being made in reliance on
Section 4(2) of the Securities Act of 1933, as
amended (the "1933 Act") without a view to any
resale or distribution and (y) (in the case of
subsequent transfers) is being made in reliance on
Rule 144A promulgated under the 1933 Act; (ii) in
the case of subsequent transfers the Purchaser has
had the opportunity to obtain the information
required to be provided pursuant to paragraph
(d)(4)(i) of Rule 144A; and (iii) the Purchaser is
a "qualified institutional buyer" within the
meaning of Rule 144A because (y) as of the end of
the Purchaser's most recent fiscal year it owned or
invested on a discretionary basis $_______________2
eligible securities (excluding affiliate's
securities, bank deposit notes and CDs, loan
participations, repurchase agreements, securities
owned but subject to a repurchase agreement and
swaps) and (z) the Purchaser is one of the
following entities:
[ ] an insurance company as defined in Section 2(13)
of the Act; or3
[ ] an investment company registered under the
Investment Company Act of 1940, as amended, or any
business development company as defined in Section
2(a)(48) of the
2 Purchaser must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Purchaser is a dealer, in which case
Purchaser must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
3 A purchase by an insurance company for one or more of its separate
accounts, as defined by section 2(a)(37) of the Investment Company Act
of 1940, which are neither registered nor required to be registered
thereunder, shall be deemed to be a purchase for the account of such
insurance company.
C-2
<PAGE>
Investment Company Act of 1940, as amended, that is
part of a Family of Investment Companies (as
defined below) which owns in the aggregate at least
$100,000,000 of securities of issuers other than
issuers that are affiliated with the investment
company or are part of such Family of Investment
Companies. The term "Family of Investment
Companies," as used herein, means two or more
registered investment companies (or series
thereof), except for a unit investment trust whose
assets consist solely of shares of one or more
registered investment companies, that have the same
investment adviser (or, in the case of unit
investment trusts, the same depositor) or
investment advisers (or, in the case of unit
investment trusts, depositors) that are affiliated
by virtue of being majority owned subsidiaries of
the same parent or because one investment adviser
or depositor is a majority owned subsidiary of the
other.
[ ] a Small Business Investment Company licensed by the
U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act
of 1958; or
[ ] a plan (i) established and maintained by a state,
its political subdivisions, or any agency or
instrumentality of a state or its political
subdivisions, the laws of which permit the purchase
of securities of this type, for the benefit of its
employees and (ii) the governing investment
guidelines of which permit the purchase of
securities of this type; or
[ ] a business development company as defined in
Section 202(a)(22) of the Investment Advisers Act
of 1940, as amended;
[ ] a corporation (other than a U.S. bank, savings and
loan association or equivalent foreign
institution), partnership, Massachusetts or similar
business trust, or an organization described in
Section 501(c)(3) of the Internal Revenue Code; or
[ ] an investment adviser registered under the
Investment Advisers Act; or
[ ] a U.S. bank, savings and loan association or
equivalent foreign institution, which has an
audited net worth of at least $25 million as
demonstrated in its latest annual financial
statements; or
C-3
<PAGE>
[ ] at least $10 million, and the undersigned is a
broker-dealer registered with the SEC; or
[ ] less than $10 million, and the undersigned is a
broker-dealer registered with the SEC and will only
purchase Rule 144A securities in transactions in
which it acts as a riskless principal (as defined
in Rule 144A); or
[ ] less than $100 million, and the undersigned is an
investment company registered under the Investment
Company Act of 1940, as amended, which, together
with one or more registered investment companies
having the same or an affiliated investment
adviser, owns at least $100 million of eligible
securities; or
[ ] less than $100 million, and the undersigned is an
entity, all the equity owners of which are
"Qualified Institutional Buyers," as defined in
Rule 144A.
2. If the Purchaser has certified that it is an institutional
"accredited investor" pursuant to Paragraph 1(a) above or that is a "qualified
institutional buyer" purchasing in the initial sale pursuant to 1(b) (i)(x)
above, the Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, or (ii)
(with respect to Regular Certificates only) to institutional "accredited
investors" meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the 1933 Act or entities all of the equity owners
of which come within such paragraphs, pursuant to any other exemption from the
registration requirements of the 1933 Act, subject in the case of this clause
(ii) to (w) the receipt by the Certificate Registrar of a letter substantially
in the form hereof, (x) the receipt by the Certificate Registrar of an opinion
of counsel acceptable to the Certificate Registrar that such reoffer, resale,
pledge or transfer is in compliance with the 1933 Act, (y) the receipt by the
Certificate Registrar of such other evidence acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the 1933 Act and other applicable laws, and (z) a written undertaking to
reimburse the Trust for any costs incurred by it in connection with the proposed
transfer. The Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the 1933 Act, by reason of a
specified exemption from the registration provisions of the 1933 Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
C-4
<PAGE>
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold except to an "qualified
institutional buyer" or (in the case of Regular Certificates only) to an
institutional "accredited investor."
5. The Purchaser hereby undertakes to be bound by the terms
and conditions of the Pooling and Servicing Agreement in its capacity as an
owner of a Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar and
all Certificateholders present and future.
6. The Purchaser covenants that, in connection with a request
to the trustee, Servicer or Special Servicer, it will take and use the provided
information on a confidential basis and will not buy or sell any Certificates on
the basis of such information unless and until such information is either (i)
included, summarized or described in a communication to Certificateholders of
other Classes, on or after the date of such communication, or (ii) contained in
a report in one of the forms attached to the Pooling and Servicing Agreement as
Exhibit H, Exhibit I-1, Exhibit I-2, Exhibit I-3, Exhibit I-4, Exhibit I-5,
Exhibit I-6, Exhibit I-7, Exhibit I-8, Exhibit I-9, Exhibit I-10 or Exhibit I-11
that is prepared by the Servicer or the Trustee and that is made available to
the Certificateholders on each Distribution Date as set forth in Section __ of
the Pooling and Servicing Agreement, as of the related Distribution Date, or
(iii) made publicly available by filing pursuant to the Securities Exchange Act
of 1934, as amended, or otherwise, on or after the date of such filing or other
availability, or (iv) made available to Certificateholders of other Classes by
Trustee posting to a world wide website accessible by such Certificateholders,
or by a comparably accessible posting by a financial publisher to whom the
Trustee or Servicer has provided such information (whether or not any access fee
is charged by such financial publisher for access to such information), on or
after the date of any such posting, by the Trustee, Servicer or Special Servicer
acting in compliance with its duties and obligations under the Pooling and
Servicing Agreement.
7. The Purchaser will not sell or otherwise transfer any
portion of the Certificate or Certificates, except in compliance with Section
5.02 of the Pooling and Servicing Agreement.
8. Check one of the following:4
[ ] The Purchaser is a U.S. Person (as defined below) and it
has attached hereto an Internal Revenue Service ("IRS") Form
W-9 (or successor form).
[ ] The Purchaser is not a U.S. Person and under applicable
law in effect on the date hereof, no taxes will be required to
be withheld by the Trustee (or its agent) or the Paying Agent
with respect to distributions to be made on the Certificate.
The Purchaser has attached hereto either (i) a duly executed
IRS Form W-8 (or successor form), which identifies such
Purchaser as the beneficial owner of the Certificate and
states that such Purchaser is not a U.S. Person or (ii) two
duly executed copies of IRS Form 4224 (or successor form),
which identify such Purchaser as the beneficial owner
4 Each Purchaser must include one of the two alternative certifications.
C-5
<PAGE>
of the
Certificate and state that interest and original issue
discount on the Certificate and Permitted Investments is, or
is expected to be, effectively connected with a U.S. trade or
business. The Purchaser agrees to provide to the Certificate
Registrar updated IRS Forms W-8 or IRS Forms 4224, as the case
may be, any applicable successor IRS forms, or such other
certifications as the Certificate Registrar may reasonably
request, on or before the date that any such IRS form or
certification expires or becomes obsolete, or promptly after
the occurrence of any event requiring a change in the most
recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United States
for U.S. federal income tax purposes, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any of its
political subdivisions, or an estate the income of which is subject to U.S.
federal income taxation regardless of its source or a trust if (A) for taxable
years beginning after __________, 1999 (or for taxable years ending after August
20, 1999, if the trustee has made an application election), a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more United States fiduciaries have the authority to
control all substantial decisions of such trust, or (B) for all other taxable
years, such trust is subject to United States federal income tax regardless of
the source of its income.
9. Please make all payments due on the Certificates:5
[ ] (a) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities therefor:
Bank:
ABA#:
Account #:
Attention:
[ ] (b) by mailing a check or draft to the following
address:
------------------------------
------------------------------
------------------------------
Very truly yours,
-----------------
5 Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b).
C-6
<PAGE>
NAME OF PURCHASER
By:______________
Name:
Title
Dated:
C-7
<PAGE>
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION
860E(e)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS
AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee] (the
"Transferee"), a [description of type of entity] duly organized and existing
under the laws of the [State of ] [United States], on behalf of which he makes
this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ]
3. That the Transferee of a Bear Stearns Commercial Mortgage Securities
Inc. Commercial Mortgage Pass-Through Certificate, Series 1999-C1, Class [R]
[LR] Certificate (the "Class [R] [LR] Certificate") is not a Disqualified
Organization (as defined below) or an agent thereof (including nominee,
middleman or other similar person) (an "Agent"), an ERISA Prohibited Holder or a
Non-U.S. Person (as defined below). For these purposes, a "Disqualified
Organization" means any of (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and a majority of its
board of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code and (v)
any other Person so designated by the Servicer based upon an Opinion of Counsel
that the holding of an Ownership Interest in a Residual Certificate by such
Person may cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions. For
these purposes, " ERISA Prohibited Holder" means an employee benefit plan
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") or section 4975 of the Code or any governmental plan (as
defined in Section 3(32) of ERISA) subject to any federal, state or local law
which is, to a material extent, similar to the foregoing provisions of ERISA or
the Code (each, a "Plan") or a Person acting on behalf of or investing the
assets of such Plan. For these purposes, "Non-U.S. Person"
D-1-1
<PAGE>
means any person other than a U.S. Person, unless, with respect to the Transfer
of a Residual Certificate, (i) such person holds such Residual Certificate in
connection with the conduct of a trade or business within the United States and
furnishes the Transferor and the Certificate Registrar with an effective
Internal Revenue Service Form 4224 or (ii) the Transferee delivers to both the
Transferor and the Certificate Registrar an opinion of a nationally recognized
tax counsel to the effect that such Transfer is in accordance with the
requirements of the Code and the regulations promulgated thereunder and that
such Transfer of the Residual Certificate will not be disregarded for federal
income tax purposes.
4. That the Transferee historically has paid its debts as they
have come due and intends to pay its debts as they come due in the future and
the Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax
liabilities with respect to the Class [R] [LR] Certificate in excess of any cash
flow generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R]
[LR] Certificate to any Person or entity unless (a) the Transferee has received
from such Person or entity an affidavit substantially in the form of this
Transfer Affidavit and (b) the Transferee provides to the Certificate Registrar
a letter substantially in the form of Exhibit D-2 to the Pooling and Servicing
Agreement certifying that it has no actual knowledge that such Person or entity
is a Disqualified Organization or an Agent thereof, an ERISA Prohibited Holder
or a Non-U.S. Person and that it has no reason to know that such Person or
entity does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the
Pooling and Servicing Agreement dated as of February 1, 1999 among Bear Stearns
Commercial Mortgage Securities Inc., as Depositor, GE Capital Loan Services,
Inc., as Servicer, GE CAPITAL REALTY GROUP, INC., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent (the "Pooling
and Servicing Agreement"), as may be required to further effectuate the
restrictions on transfer of the Class [R] [LR] Certificate to such a
Disqualified Organization or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person. To the extent not defined herein, the capitalized terms used
herein shall have the meanings assigned thereto in the Pooling and Servicing
Agreement.
8. That, if a "tax matters person" is required to be
designated with respect to the [Upper-Tier REMIC] [Lower-Tier REMIC], the
Transferee agrees to act as "tax matters person" and to perform the functions of
"tax matters person" of the [Upper-Tier REMIC] [Lower-Tier REMIC] pursuant to
Section 10.01(c) of the Pooling and Servicing Agreement, and agrees to the
irrevocable designation of the Servicer as the Transferee's agent in performing
the function of "tax matters person."
9. The Transferee has reviewed, and agrees to be bound by and
to abide by, the provisions of Section 5.02(d) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of Class [R] [LR]
Certificates.
D-1-2
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, by its [Title of Officer] this _____ day of 19_ .
[NAME OF TRANSFEREE]
By:
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of
Officer], known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Transferee.
Subscribed and sworn before me this day of , 19__.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the ______ day of , 19 _ .
D-1-3
<PAGE>
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
- ------------------------,
as Certificate Registrar
Attention:
Re: Bear Stearns Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates,
Series 1999-C1
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of
[Transferee], and has no actual knowledge that such affidavit is not true and
has no reason to know that the requirements set forth in paragraphs 3 and 4
thereof are not satisfied or that the information contained in paragraphs 3 and
4 thereof is not true.
Very truly yours,
[Transferor]
D-2-1
<PAGE>
EXHIBIT E
[INTENTIONALLY OMITTED]
E-1
<PAGE>
EXHIBIT F
REQUEST FOR RELEASE
[Date]
[TRUSTEE]
Re: Bear Stearns Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates,
Series 1999-C1,
REQUEST FOR RELEASE
Dear ,
In connection with the administration of the Mortgage Files
held by or on behalf of you as Trustee under a certain Pooling and Servicing
Agreement dated as of February 1, 1999 (the "Pooling and Servicing Agreement"),
by and among Bear Stearns Commercial Mortgage Securities Inc., as depositor, ABN
AMRO Bank N.V., as Fiscal Agent, [the undersigned, as servicer ("the Servicer"),
GE Capital Realty Group, Inc., as special servicer,] [GE Capital Loan Services,
Inc., as servicer, the undersigned, as special servicer (the "Special
Servicer"),] and you, as trustee, the undersigned hereby requests a release of
the Mortgage File (or the portion thereof specified below) held by or on behalf
of you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
____1. 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
credited to the Certificate Account pursuant to the Pooling
and Servicing Agreement.
____2. The Mortgage Loan is being foreclosed.
____3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage
F-1
<PAGE>
File (or such portion thereof) will be retained by us permanently, or unless the
Mortgage Loan is being foreclosed, in which case the Mortgage File (or such
portion thereof) will be returned when no longer required by us for such
purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[SERVICER][SPECIAL SERVICER]
By:
Name:
Title:
F-2
<PAGE>
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
Bear Stearns Commercial Mortgage Securities Inc.
245 Park Avenue
New York, New York 10167
Attention: James G. Reichek
LaSalle National Bank,
as Certificate Registrar
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60603
Attention: Corporate Trust Services Group -- Bear Stearns
Commercial Mortgage Securities Inc. Series 1999-C1
Re: Transfer of Bear Stearns Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C1
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase
$_______________ initial Certificate Balance of Bear Stearns Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-C1,
Class ______ (the "Certificate") issued pursuant to that certain Pooling and
Servicing Agreement dated as of February 1, 1999 (the "Pooling and Servicing
Agreement"), by and among Bear Stearns Commercial Mortgage Securities Inc., as
Depositor, GE Capital Loan Services, Inc., as Servicer, GE Capital Realty Group,
Inc., as Special Servicer, ABN AMRO Bank N.V., as Fiscal Agent and LaSalle
National Bank, as Trustee. Capitalized terms used and not otherwise defined
herein have the respective meanings ascribed to such terms in the Pooling and
Servicing Agreement.
In connection with such transfer, the undersigned hereby
represents and warrants to you as follows:
The Purchaser of any Class of Certificates either (A) is not
(i) an employee benefit plan subject to the fiduciary responsibility provisions
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or a
governmental plan (as defined in Section 3(32) of ERISA) subject to any federal,
state or local law ("Similar Law") which is, to a material extent, similar to
the foregoing provisions of ERISA or the Code (each a "Plan") or (ii) a person
acting on behalf of or using the assets of any such Plan (including an entity
whose underlying assets include Plan assets by reason of investment in the
entity by such Plan and the application of Department of Labor Regulation ss.
2510.3-101), other than an insurance company using the assets of its general
account under circumstances whereby the purchase and holding of such Class of
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Prohibited Transaction Class
Exemption
G-1
<PAGE>
95-60 or (B) is delivering herewith an Opinion of Counsel in form and substance
satisfactory to the Certificate Registrar and the Depositor to the effect that
the acquisition and holding of such Certificate by such purchaser or transferee
will not result in the assets of the Trust Fund being deemed to be "plan assets"
and subject to the fiduciary responsibility provisions of ERISA, the prohibited
transaction provisions of the Code or the provisions of any Similar Law, will
not constitute or result in a "prohibited transaction" within the meaning of
ERISA, Section 4975 of the Code or any Similar Law, and will not subject the
Trustee, the Certificate Registrar, the Servicer, the Special Servicer, the
Fiscal Agent, the Underwriter or the Depositor to any obligation or liability
(including obligations or liabilities under ERISA, Section 4975 of the Code or
any such Similar Law).
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___th day of ______, _______.
Very truly yours,
-----------------
The Purchaser
By:______________
Name:
Title:
G-2
<PAGE>
EXHIBIT H
FORM OF DISTRIBUTION DATE STATEMENT
[TO COME FROM TRUSTEE]
H-1
<PAGE>
EXHIBIT I-1
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
I-1-1
<PAGE>
Comparative Financial Status Report
Exhibit I-1
<TABLE>
<CAPTION>
------------------------------------------------
------------------------------------------------
Original Underwriting Information
------------------------------------------------
------------------------------------------------
Last Ending
Property Scheduled Paid Annual Financial
Prospectus Inspection Principal Thru Debt Info % Total $
Number City State Date Balance Date Service as of Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------
Financial Information: Received
- ----------------------------------------------- Loans Balance
# % $ %
- ----------------------------------------------- -----------------------------------------------
Current Full Year:
- ----------------------------------------------- -----------------------------------------------
Current Full Yr. received with DSC less than 1:
- ----------------------------------------------- -----------------------------------------------
Prior Full Year:
- ----------------------------------------------- -----------------------------------------------
Prior Full Yr. received with DSC less than 1:
- ----------------------------------------------- -----------------------------------------------
<CAPTION>
------------------------------------------------
------------------------------------------------
Prior Full Year Operating
Information
As of Y-E YYYY Normalized
------------------------------------------------
Financial
Prospectus Info % Total $
Number as of Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------
Financial Information: Required
- ----------------------------------------------- Balance
% $ %
- ----------------------------------------------- -----------------------------------------------
Current Full Year:
- ----------------------------------------------- -----------------------------------------------
Current Full Yr. received with DSC less than 1:
- ----------------------------------------------- -----------------------------------------------
Prior Full Year:
- ----------------------------------------------- -----------------------------------------------
Prior Full Yr. received with DSC less than 1:
- ----------------------------------------------- -----------------------------------------------
<CAPTION>
------------------------------------------------
------------------------------------------------
Current Annual Operating
Information
As of Y-E YYYY Normalized
------------------------------------------------
Financial
Prospectus Info % Total $
Number as of Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------
Financial Information:
- -----------------------------------------------
- -----------------------------------------------
Current Full Year:
- -----------------------------------------------
Current Full Yr. received with DSC less than 1:
- -----------------------------------------------
Prior Full Year:
- -----------------------------------------------
Prior Full Yr. received with DSC less than 1:
- -----------------------------------------------
<CAPTION>
------------------------------------------------
------------------------------------------------
"Actual" YTD
Operating
Information Month Reported
------------------------------------------------
FS FS
Prospectus Start End % Total $
Number Date Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------
Financial Information:
- -----------------------------------------------
- -----------------------------------------------
Current Full Year:
- -----------------------------------------------
Current Full Yr. received with DSC less than 1:
- -----------------------------------------------
Prior Full Year:
- -----------------------------------------------
Prior Full Yr. received with DSC less than 1:
- -----------------------------------------------
<CAPTION>
------------------------------------------------
------------------------------------------------
Net Change
Current & Basic
------------------------------------------------
%
Prospectus % Total
Number Occ Rev DSCR
<S> <C> <C> <C>
- -----------------------------------------------
Financial Information:
- -----------------------------------------------
- -----------------------------------------------
Current Full Year:
- -----------------------------------------------
Current Full Yr. received with DSC less than 1:
- -----------------------------------------------
Prior Full Year:
- -----------------------------------------------
Prior Full Yr. received with DSC less than 1:
- -----------------------------------------------
</TABLE>
<PAGE>
EXHIBIT I-2
FORM OF DELINQUENT LOAN STATUS REPORT
I-2-1
<PAGE>
DELINQUENT LOAN STATUS REPORT
EXHIBIT I-2
<TABLE>
<CAPTION>
TOTAL O/S
ENDING P&I TOTAL O/S
PROSPECTUS PROPERTY PROPERTY SQ FT OR PAID TO SCHEDULED ADVANCES TO EXPENSES TO
ID NAME TYPE CITY STATE UNITS DATE BALANCE DATE DATE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
OTHER
ADVANCES CURRENT CURRENT LTM
(TAXES & TOTAL MONTHLY INTEREST MAT. NOI LTM CAP RATE
INSURANCE) EXPOSURE P&I RATE DATE DATE LTM NOI DSCR ASSIGNED
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
DELINQUENT LOAN STATUS REPORT
EXHIBIT I-2
<TABLE>
<CAPTION>
VALUE USING VALUATION/ APPRAISAL, LESS USING
PROSPECTUS PROPERTY PROPERTY NOI & CAP APPRAISAL BPO, OR 98% APPRAISAL
ID NAME TYPE CITY STATE RATE DATE INTERNAL VALUE OR BPO
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
TOTAL APPRAISAL EXPECTED
ESTIMATED REDUCTION TRANSFER RESOLUTION FCL START FCL SALE WORKOUT
RECOVERY % REALIZED DATE DATE DATE DATE STRATEGY COMMENTS
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT I-3
FORM OF HISTORICAL LOAN MODIFICATION REPORT
I-3-1
<PAGE>
HISTORICAL LOAN MODIFICATION REPORT
EXHIBIT 1-3
<TABLE>
<CAPTION>
BALANCE WHEN
SENT TO BALANCE AT THE
MODIFICATION OR MODIFICATION SPECIAL EFFECTIVE DATE
PROSPECTUS ID CITY STATE EST FLAG EFFECTIVE DATE SERVICER OF MODIFICATION OLD RATE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
[RESTUBBED TABLE CONTINUED FROM ABOVE]
NEW RATE # OF MONTHS OLD P & I NEW P & I OLD MATURITY
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE>
HISTORICAL LOAN MODIFICATION REPORT
EXHIBIT 1-3
<TABLE>
<CAPTION>
ESTIMATED
NEW MONTHS FOR REALIZED LOSS INTEREST LOSS TO
PROSPECTUS ID CITY MATURITY MOD CHANGE TO TRUST TRUST COMMENTS
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT I-4
FORM OF HISTORICAL LOSS ESTIMATE REPORT
I-4-1
<PAGE>
HISTORICAL LOSS ESTIMATE REPORT
EXHIBIT I-4
<TABLE>
<CAPTION>
LATEST APPRAISAL
PROSPECTUS PROPERTY % FEE FROM OR BROKERS
ID PROPERTY NAME TYPE CITY STATE SALE OPINION
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
[RESTUBBED TABLE CONTINUED FROM ABOVE]
<TABLE>
<CAPTION>
NET AMOUNT SCHEDULED TOTAL P&I SERVICING
PROSPECTUS EFFECTIVE RECEIVED FROM BALANCE (AS OF PAID TOTAL EXPENSES FEES
ID DATE OF SALE SALES PRICE SALE RESOLUTION) (ADVANCES) (OUTSTANDING) EXPENSE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
HISTORICAL LOSS ESTIMATE REPORT
EXHIBIT I-4
<TABLE>
<CAPTION>
PROSPECTUS PROPERTY ACTUAL LOSSES
ID PROPERTY NAME TYPE CITY NET PROCEEDS PASSED THROUGH
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
[RESTUBBED TABLE CONTINUED FROM ABOVE]
<TABLE>
<CAPTION>
DATE
DATE LOSS MINOR ADJ LOSS % OF
PROSPECTUS PASS MINOR ADJ TO PASSED TOTAL LOSS WITH SCHEDULED
ID THROUGH TRUST THROUGH ADJUSTMENT BALANCE
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT I-5
FORM OF REO STATUS REPORT
I-5-1
<PAGE>
REO STATUS REPORT
EXHIBIT I-5
<TABLE>
<CAPTION>
PAID ENDING TOTAL P&I TOTAL
PROSPECTUS PROPERTY PROPERTY SQ FT OR THRU SCHEDULED ADVANCES TO EXPENSES TO
ID NAME TYPE CITY STATE UNITS DATE BALANCE DATE DATE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[RESTUBBED TABLE CONTINUED FROM ABOVE]
<CAPTION>
OTHER VALUATION
ADVANCES LTM /
(TAXES & CURRENT MATURITY NOI LTM CAP RATE APPRAISAL
INSURANCE) TOTAL EXPOSURE MONTHLY P&I DATE DATE LTM NOI DSCR ASSIGNED DATE
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
REO STATUS REPORT
EXHIBIT I-5
<TABLE>
<CAPTION>
VALUE USING APPRAISAL/
PROSPECTUS PROPERTY PROPERTY NOI & CAP BPO OR LOSS USING 91% ESTIMATED
ID NAME TYPE CITY RATE INTEREST VALUE APPRAISAL OR BPO RECOVERY %
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
[RESTUBBED TABLE CONTINUED FROM ABOVE]
<CAPTION>
TOTAL SPECIAL
APPRAISAL SERVICING REO PENDING
REDUCTION TRANSFER ACQUISITION RESOLUTION
REALIZED DATE DATE DATE COMMENTS
- ----------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT I-6
FORM OF WATCH LIST REPORT
I-6-1
<PAGE>
SERVICER WATCH LIST
EXHIBIT I-6
<TABLE>
<CAPTION>
ENDING PAID
PROSPECTUS PROPERTY PROPERTY SCHEDULED THRU MATURITY COMMENT/REASON ON WATCH
ID NAME TYPE CITY STATE BALANCE DATE DATE LTM DSCR LIST
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT I-7
FORM OF OPERATING STATEMENT ANALYSIS REPORT
I-7-1
<PAGE>
AS OF
OPERATING STATEMENT ANALYSIS REPORT
EXHIBIT I-7
<TABLE>
<CAPTION>
PROPERTY OVERVIEW:
<S> <C> <C> <C> <C> <C>
PROSPECTUS NUMBER
SCHED BALANCE/PAID TO DATE
PROPERTY NAME
PROPERTY TYPE
PROPERTY ADDRESS
CITY, STATE
NET RENTABLE SQUARE FEET
YEAR BUILT/RENOVATED
YEAR OF OPERATIONS UNDERWRITING 1995 1996 1997 1998 YTD
OCCUPANCY RATE
AVERAGE RENTAL RATE
</TABLE>
<TABLE>
<CAPTION>
INCOME:
NO. OF MONTHS ANNUALIZED UNDERWRITING 1995 1996 1997 # OF MONTHS 1997-BASE 1997-1996
PERIOD ENDED BASIS NORMALIZED NORMALIZED NORMALIZED 1998 YTD VARIANCE VARIANCE
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT CLASSIFICATION
RENTAL INCOME - CATEGORY 1
RENTAL INCOME - CATEGORY 2
RENTAL INCOME - CATEGORY 3
PASS THROUGH/ESCALATIONS
OTHER INCOME
EFFECTIVE GROSS INCOME
OPERATING EXPENSES:
REAL ESTATE TAXES
PROPERTY INSURANCE
UTILITIES
GENERAL AND ADMINISTRATION
REPAIRS AND MAINTENANCE
MANAGEMENT FEES
PAYROLL AND BENEFITS
ADVERTISING AND MARKETING
PROFESSIONAL FEES
OTHER EXPENSES
GROUND RENT
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
LEASING COMMISSIONS
TENANT IMPROVEMENTS
REPLACEMENT RESERVES
OTHER CAPITAL EXPENSE
TOTAL CAPITAL ITEMS
NOI AFTER CAPITAL ITEMS
DEBT SERVICE (PER SERVICER)
CASH FLOW AFTER DEBT SERVICE
DSCR (NOI/DEBT SERVICE)
DSCR (AFTER RESERVES/CAP EXP)
SOURCE OF FINANCIAL DATA:
INCOME COMMENTS:
EXPENSE COMMENTS:
CAPITAL ITEMS COMMENTS:
</TABLE>
<PAGE>
EXHIBIT I-8
FORM OF NOI ADJUSTMENT WORKSHEET
I-8-1
<PAGE>
AS OF NOI ADJUSTMENT WORKSHEET
EXHIBIT I-8
<TABLE>
<CAPTION>
PROPERTY OVERVIEW:
<S> <C> <C> <C> <C> <C>
PROSPECTUS NUMBER
SCHED BALANCE/PAID TO DATE
PROPERTY NAME
PROPERTY TYPE
PROPERTY ADDRESS
CITY, STATE
NET RENTABLE SQUARE FEET
YEAR BUILT/RENOVATED
YEAR OF OPERATIONS BORROWER ADJUSTMENT NORMALIZED
-------- ---------- ----------
OCCUPANCY RATE
AVERAGE RENTAL RATE
</TABLE>
<TABLE>
<CAPTION>
INCOME:
NO. OF MONTHS ANNUALIZED UNDERWRITING # OF MONTHS
PERIOD ENDED BASIS NORMALIZED 1998 YTD
------------ ----- ---------- --------
<S> <C> <C> <C>
STATEMENT CLASSIFICATION
RENTAL INCOME - CATEGORY 1
RENTAL INCOME - CATEGORY 2
RENTAL INCOME - CATEGORY 3
PASS THROUGH/ESCALATIONS
OTHER INCOME
EFFECTIVE GROSS INCOME
OPERATING EXPENSES:
REAL ESTATE TAXES
PROPERTY INSURANCE
UTILITIES
GENERAL AND ADMINISTRATION
REPAIRS AND MAINTENANCE
MANAGEMENT FEES
PAYROLL AND BENEFITS
ADVERTISING AND MARKETING
PROFESSIONAL FEES
OTHER EXPENSES
GROUND RENT
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
LEASING COMMISSIONS
TENANT IMPROVEMENTS
REPLACEMENT RESERVES
OTHER CAPITAL EXPENSE
TOTAL CAPITAL ITEMS
NOI AFTER CAPITAL ITEMS
DEBT SERVICE (PER SERVICER)
CASH FLOW AFTER DEBT SERVICE
DSCR (NOI/DEBT SERVICE)
DSCR (AFTER RESERVES/CAP EXP)
SOURCE OF FINANCIAL DATA:
INCOME COMMENTS:
EXPENSE COMMENTS:
CAPITAL ITEMS COMMENTS:
</TABLE>
<PAGE>
EXHIBIT I-9
FORM OF CSSA LOAN SET-UP FILE
I-9-1
<PAGE>
CSSA SET-UP DATA RECORD LAYOUT
EXHIBIT I-9
<TABLE>
<CAPTION>
FIELD
FIELD NAME NUMBER TYPE FORMAT DESCRIPTION
- ------------------------------ -------- --------- ------------------ ------------------------------------------------
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each
Loan Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Identification Number Assigned To Each
Collateral Item In A Pool
Offering Document Loan Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of
The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of
Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized
Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is
Permitted To Remit Payment
Interest Only (Y/N) 12 AN Y Y = Yes, N = No
Balloon (Y/N) 13 AN Y Y = Yes, N = No
Interest Rate Type 14 Numeric 1 1 = Fixed, 2 = Arm, 3 = Step, 9 = Other
Interest Accrual Method Code 15 Numeric 1 1 = 30/360, 2 = Actual/365, 3 = Actual/360,
4 = Actual/Actual, 5 = Actual/366, 6 = Simple,
7 = 78'S
Interest in Arrears (Y/N) 16 AN Y Y = Yes, N = No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lock-out End 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Date
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without
Yield Maintenance
Prepayment Premium End 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without
Date Penalty
Prepayment Terms 21 AN Text Description Of Prepayment Terms (Not To
Description Exceed 50 Characters)
ARM Index Code 22 AN A See Arm Index Code Legend
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
First Payment Adjustment 24 AN YYYYMMDD Date Payment Originally Changed
Date
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination
Of The Gross Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On
An Arm Loan Per The Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay On
An Arm Loan Per The Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate
Allowed Per The Loan Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Increase To The Note Rate
Allowed Per The Loan Agreement
Periodic Payment Adjustment 30 Numeric 0.03 Maximum Periodic Percentage Increase To The
Max-% Borrowers P&I Payment Allowed Per The Loan
Agreement
</TABLE>
1
<PAGE>
CSSA SET-UP DATA RECORD LAYOUT
EXHIBIT I-9
<TABLE>
<CAPTION>
FIELD
FIELD NAME NUMBER TYPE FORMAT DESCRIPTION
- ---------------------------------- -------- ---------- -------------- --------------------------------------------------
<S> <C> <C> <C> <C>
Periodic Payment Adjustment 31 Numeric 5000.00 Maximum Periodic Dollar Increase To The
Max-$ Borrowers P&I Payment Allowed Per The Loan
Agreement
Payment Frequency 32 Numeric 1 1 = Monthly, 3 = Quarterly, 6 = Semi-Annually,
12 = Annually
Rate Reset Frequency In 33 Numeric 1 1 = Monthly, 3 = Quarterly, 6 = Semi-Annually,
Months 12 = Annually
Payment Reset Frequency In 34 Numeric 1 1 = Monthly, 3 = Quarterly, 6 = Semi-Annually,
Months 12 = Annually
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin
(See Rounding Code Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To Adjustment
Date
Negative Amortization 38 AN Y Yes = Yes, N = No
Allowed (Y/N)
Max Negam Allowed (% Of 39 Numeric 0.075 Maximum Lifetime Percentage Increase To The
Orig Balance) Original Balance Allowed Per The Loan
Agreement
Maximum Negam Allowed ($) 40 Numeric 25000.00 Maximum Lifetime Dollar Increases To The
Original Balance Allowed Per The Loan
Agreement
Remaining Term At 41 Numeric 240 Remaining Number Of Months Until Maturity Of
Securitization Loan At Cutoff
Remaining Amortized Term 42 Numeric 360 Remaining Number Of Months Loan Amortized
At Securitization Over At Cutoff
Maturity Date At 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage
Securitization Loan At Securitization
Scheduled Principal Balance 44 Numeric 1000000.00 The Scheduled Principal Balance Of The
At Securitization Mortgage Loan At Securitization
Note Rate At Securitization 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate Applicable
To The Calculation Of Scheduled Interest
Servicer and Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer And
Trustee
Fee Rate/Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net
Pass-Through Rate
Fee Rate/Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against
Current Note Rate To Determine Net
Pass-Through Rate
Net Rate At Securitization 52 Numeric 0.00001 Cutoff Annualized Interest Rate Applicable To
The Calculation Of Remittance Interest
Periodic P&I Payment At 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest
Securitization Payment
# Of Properties 54 Numeric 13 The Number Of Properties Underlying The
Mortgage Loan
Property Name 55 AN Text If Number Of Properties is Greater Than 1 Then
"Various"
Property Address 56 AN Text If Number Of Properties is Greater Than 1 then
"Various"
Property City 57 AN Text If Number Of Properties Is Greater Than 1 then
"Various"
Property State 58 AN Text If Number Of Properties Is Greater Than 1 Then
"Various"
Property Zip Code 59 AN Text If Number Of Properties Is Greater Than 1 Then
"Various"
Property County 60 AN Text If Number Of Properties Is Greater Than 1 Then
"Various"
</TABLE>
2
<PAGE>
CSSA SET-UP DATA RECORD LAYOUT
EXHIBIT I-9
<TABLE>
<CAPTION>
FIELD
FIELD NAME NUMBER TYPE FORMAT DESCRIPTION
- ------------------------------ -------- --------- ---------------- -----------------------------------------------
<S> <C> <C> <C> <C>
Property Type Code 61 AN MF If Number Of Properties Is Greater Than 1 Then
"Various" (See Property Type Code Legend)
Net Square Feel At 62 Numeric 25000 If Number Of Properties Is Greater Than 1 Then
Securitization "Various"
# Of Units/Beds/Rooms At 63 Numeric 75 If Number Of Properties Is Greater Than 1 Then
Securitization "Various"
Year Built 64 AN 1990 If Number Of Properties Is Greater Than 1 Then
"Various"
NOI At Securitization 65 Numeric 100000.00 Net Operating Income At Securitization
DSCR At Securitization 66 Numeric 2.11 DSCR At Securitization
Appraisal Value At 67 Numeric 1000000.00 Appraisal Value At Securitization
Securitization
Appraisal Date At 68 AN YYYYMMDD Appraisal Date At Securitization
Securitization
Physical Occupancy At 69 Numeric 0.88 Physical Occupancy At Securitization
Securitization
Revenue At Securitization 70 Numeric 100000.00 Revenue At Securitization
Operating Expenses At 71 Numeric 100000.00 Expenses At Securitization
Securitization
Securitization Financials As 72 AN YYYYMMDD Securitization Financials As Of Date
Of Date
Recourse (Y/N) 73 AN Y Y = Yes, N = No
Ground Lease (Y/N) 74 AN Y Y = Yes, N = No
Cross-Collateralized Loan 75 Numeric 9(3) All Loans With The Same Numeric Value Are
Grouping Crossed
Collection Of Escrows (Y/N) 76 AN Y Y = Yes, N = No
Collection Of Other Reserves 77 AN Y Y = Yes, N = No
(Y/N)
Lien Position At 78 Numeric 1 1 = First, 2 = Second
Securitization
</TABLE>
3
<PAGE>
EXHIBIT I-10
FORM OF CSSA PERIODIC LOAN UPDATE FILE
I-10-1
<PAGE>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
Exhibit I-10
<TABLE>
<CAPTION>
SPECIFICATION DESCRIPTION/COMMENTS
- ------------------------------- ------------------------------------------------------------------------------------------------
<S> <C>
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking Factor;
Record Length
Return Address Label Required for return of physical media (magnetic tape or diskette)
</TABLE>
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE
- ---------- -------- --------- ------------------
<S> <C> <C> <C>
Transaction Id 1 AN XXX97001
Group Id 2 AN XXX9701A
Loan Id 3 AN 00000000012345
Prospectus Id 4 AN 123
Distribution Date 5 AN YYYYMMDD
Current Beginning Sched Balance 6 Numeric 100000.00
Current Ending Scheduled Balance 7 Numeric 100000.00
Paid To Date 8 AN YYYYMMDD
Current Index Rate 9 Numeric 0.09
Current Note Rate 10 Numeric 0.09
Maturity Date 11 AN YYYYMMDD
Servicer and Trustee Fee Rate 12 Numeric 0.00025
Fee Rate/Strip Rate 1 13 Numeric 0.00001
Fee Rate/Strip Rate 2 14 Numeric 0.00001
Fee Rate/Strip Rate 3 15 Numeric 0.00001
Fee Rate/Strip Rate 4 16 Numeric 0.00001
Fee Rate/Strip Rate 5 17 Numeric 0.00001
Net Pass-Through Rate 18 Numeric 0.0897
Next Index Rate 19 Numeric 0.09
Next Note Rate 20 Numeric 0.09
Next Rate Adjustment Date 21 AN YYYYMMDD
Next Payment Adjustment Date 22 AN YYYYMMDD
<CAPTION>
FIELD NAME DESCRIPTION/COMMENTS
- ---------- ------------------------------------------------------------------------------------
<S> <C>
Transaction Id Unique Issue Identification Mnemonic
Group Id Unique Identification Number Assigned To Each Loan Group Within An Issue
Loan Id Unique Identification Number Assigned To Each Collateral Item In A Pool
Prospectus Id Unique Identification Number Assigned To Each Collateral Item In The Prospectus
Distribution Date Date Payments Made To Certificateholders
Current Beginning Sched Balance Outstanding Scheduled Principal Balance At The Beginning Of The Current Period
Current Ending Scheduled Balance Outstanding Scheduled Principal Balance At The End Of The Current Period
Paid To Date Due Date Of The Last Interest Payment Received
Current Index Rate Index Rate Used In The Determination Of The Current Period Gross Interest Rate
Current Note Rate Annualized Gross Rate Applicable To Calculate The Current Period Scheduled Interest
Maturity Date Date Collateral Is Scheduled To Make Its Final Payment
Servicer and Trustee Fee Rate Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 Annualized Fee/Strip Netted Against Current Note Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 2 Annualized Fee/Strip Netted Against Current Note Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 3 Annualized Fee/Strip Netted Against Current Note Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 4 Annualized Fee/Strip Netted Against Current Note Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 5 Annualized Fee/Strip Netted Against Current Note Rate = Net Pass-Through Rate
Net Pass-Through Rate Annualized Interest Rate Applicable To Calculate The Current Period Remittance Int.
Next Index Rate Index Rate Used In The Determination Of The Next Period Gross Interest Rate
Next Note Rate Annualized Gross Interest Rate Applicable To Calc Of The Next Period Sch. Interest
Next Rate Adjustment Date Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date Date Scheduled P&I Amount Is Next Scheduled To Change
</TABLE>
Page 1 of 4
<PAGE>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
Exhibit I-10
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE
- ---------- -------- --------- ------------
<S> <C> <C> <C>
Scheduled Interest Amount 23 Numeric 1000.00
Scheduled Principal Amount 24 Numeric 1000.00
Total Scheduled P&I Due 25 Numeric 1000.00
Neg am/Deferred Interest Amount 26 Numeric 1000.00
Unscheduled Principal Collections 27 Numeric 1000.00
Other Principal Adjustments 28 Numeric 1000.00
Liquidation/Prepayment Date 29 AN YYYYMMDD
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00
Liquidation/Prepayment Code 32 Numeric 1
Most Recent ASER $ 33 Numeric 1000.00
Most Recent ASER Date 34 AN YYYYMMDD
Cumulative ASER $ 35 Numeric 1000.00
Actual Balance 36 Numeric 100000.00
Total P&I Advance Outstanding 37 Numeric 1000.00
Total T&I Advance Outstanding 38 Numeric 1000.00
Other Expense Advance Outstanding 39 Numeric 1000.00
Status of Loan 40 AN 1
In Bankruptcy 41 AN Y
Foreclosure Date 42 AN YYYYMMDD
REO Date 43 AN YYYYMMDD
Bankruptcy Date 44 AN YYYYMMDD
Net Proceeds Received on Liquidation 45 Numeric 100000.00
Liquidation Expense 46 Numeric 100000.00
Realized Loss to Trust 47 Numeric 10000.00
Date of Last Modification 48 AN YYYYMMDD
Modification Code 49 Numeric 1
Modified Note Rate 50 Numeric 0.09
Modified Payment Rate 51 Numeric 0.09
Preceding Fiscal Year Revenue 52 Numeric 1000.00
Preceding Fiscal Year Expenses 53 Numeric 1000.00
Preceding Fiscal Year NOI 54 Numeric 1000.00
Preceding Fiscal Year Debt Svc Amt. 55 Numeric 1000.00
Preceding Fiscal Year DSCR 56 Numeric 2.55
<CAPTION>
FIELD NAME DESCRIPTION/COMMENTS
- ---------- -----------------------------------------------------------------------------------
<S> <C>
Scheduled Interest Amount Scheduled Gross Interest Payment Due For The Current Period
Scheduled Principal Amount Scheduled Principal Payment Due For The Current Period
Total Scheduled P&I Due Scheduled Principal And Interest Payment Due For The Current Period
Neg am/Deferred Interest Amount Negative Amortization/Deferred Interest Amount Due For The Current Period
Unscheduled Principal Collections Unscheduled Payments Of Principal Received During The Related Collection Period
Other Principal Adjustments Unscheduled Principal Adjustments For The Related Collection Period
Liquidation/Prepayment Date Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yld Maint Rec'd Additional Payment Req'd From Borrower Due To Prepayment Of Loan Prior To Maturity
Prepayment Interest Excess (Shortfall) Scheduled Gross Interest Applicable To The Prepayment Amount
Liquidation/Prepayment Code See Liquidation/Prepayment Codes Legend
Most Recent ASER $ Excess Of The Principal Balance Over The Defined Appraisal Percentage
Most Recent ASER Date Date ASER Amount Applied To Loan
Cumulative ASER $ Cumulative ASER Amount
Actual Balance Outstanding Actual Principal Balance At The End Of The Current Period
Total P&I Advance Outstanding Outstanding P&I Advances At The End Of The Current Period
Total T&I Advance Outstanding Outstanding Taxes & Insurance Advances At The End Of The Current Period
Other Expense Advance Outstanding Other Outstanding Advances At The End Of The Current Period
Status of Loan See Status Of Loan Legend
In Bankruptcy Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else "N")
Foreclosure Date Date Of Foreclosure
REO Date Date Of REO
Bankruptcy Date Date Of Bankruptcy
Net Proceeds Received on Liquidation Net Proceeds Rec'd On Liquidation To Be Remitted To The Tr Per The Tr Doc'n
Liquidation Expense Expenses Associated With The Liq'n To Be Netted From The Tr Per The Tr Doc'n
Realized Loss to Trust Liquidation Balance Less Net Liquidation Proceeds Received
Date of Last Modification Date Loan Was Modified
Modification Code See Modification Codes Legend
Modified Note Rate Note Rate Loan Modified To
Modified Payment Rate Payment Rate Loan Modified To
Preceding Fiscal Year Revenue Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI Preceding Fiscal Year Net Op Income
Preceding Fiscal Year Debt Svc Amt. Preceding Fiscal Year Debt Svc Amount
Preceding Fiscal Year DSCR Preceding Fiscal Yr Debt Svc Cvrge Ratio
</TABLE>
- -------
All Financial Update Fields Are Calculated and/or Presented In The Manner
Described In The Associated Trust Documentation
Page 2 of 4
<PAGE>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
Exhibit I-10
<TABLE>
<CAPTION>
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE
- ---------- -------- --------- -------------
<S> <C> <C> <C>
Preceding Fiscal Yr Physical Occ'y 57 Numeric 0.85
Preceding FY Financial As of Date 58 AN YYYYMMDD
Second Preceding FY Revenue 59 Numeric 1000.00
Second Preceding FY Expenses 60 Numeric 1000.00
Second Preceding FY NOI 61 Numeric 1000.00
Second Preceding FY Debt Service 62 Numeric 1000.00
Second Preceding FY DSCR 63 Numeric 2.55
Sec Preceding FY Physical Occ'y 64 Numeric 0.85
Sec Preceding FY Finl As of Date 65 AN YYYYMMDD
Most Recent Fiscal YTD Revenue 66 Numeric 1000.00
Most Recent Fiscal YTD Expenses 67 Numeric 1000.00
Most Recent Fiscal YTD NOI 68 Numeric 1000.00
Most Recent Fiscal YTD Debt Service 69 Numeric 1000.00
Most Recent Fiscal YTD DSCR 70 Numeric 2.55
Most Recent Fiscal YTD Phys. Occ. 71 Numeric 0.85
Most Recent Fiscal YTD Start Date 72 AN YYYYMMDD
Most Recent Fiscal YTD End Date 73 AN YYYYMMDD
Most Recent Appraisal Date 74 AN YYYYMMDD
Most Recent Appraisal Value 75 Numeric 100000.00
Workout Strategy Code 76 Numeric 1
Most Recent Spec Svc Transfer Date 77 AN YYYYMMDD
Most Recent Master Svc Return Date 78 AN YYYYMMDD
Date Asset Expected to Be Resolved 79 AN YYYYMMDD
Year Last Renovated 80 AN 1997
<CAPTION>
FIELD NAME DESCRIPTION/COMMENTS
- ---------- ------------------------------------------------------------
<S> <C>
Preceding Fiscal Yr Physical Occ'y Preceding Fiscal Year Physical Occupancy
Preceding FY Financial As of Date Preceding Fiscal Year Financial As Of Date
Second Preceding FY Revenue Second Preceding Fiscal Year Revenue
Second Preceding FY Expenses Second Preceding Fiscal Year Expenses
Second Preceding FY NOI Second Preceding Fiscal Year Net Operating Income
Second Preceding FY Debt Service Second Preceding Fiscal Year Debt Service
Second Preceding FY DSCR Second Preceding Fiscal Year Debt Svc Cvrge Ratio
Sec Preceding FY Physical Occ'y Second Preceding Fiscal Year Physical Occupancy
Sec Preceding FY Finl As of Date Second Preceding Fiscal Year Financial As Of Date
Most Recent Fiscal YTD Revenue Most Recent Fiscal Year To Date Revenue
Most Recent Fiscal YTD Expenses Most Recent Fiscal Year To Date Expenses
Most Recent Fiscal YTD NOI Most Recent Fiscal Year To Date Net Operating Income
Most Recent Fiscal YTD Debt Service Most Recent Fiscal Year To Date Debt Service
Most Recent Fiscal YTD DSCR Most Recent Fiscal Year To Date Debt Service Coverage Ratio
Most Recent Fiscal YTD Phys. Occ. Most Recent Fiscal Year To Date Physical Occupancy
Most Recent Fiscal YTD Start Date Most Recent Fiscal Year To Date Start Date
Most Recent Fiscal YTD End Date Most Recent Fiscal Year To Date End Date
Most Recent Appraisal Date The Date Of The Latest Available Appraisal For The Property
Most Recent Appraisal Value The Latest Available Appraisal Value For The Property
Workout Strategy Code See Workout Strategy Codes Legend
Most Recent Spec Svc Transfer Date Date Transferred To The Special Servicer
Most Recent Master Svc Return Date Date Returned To The Master Servicer
Date Asset Expected to Be Resolved Date Asset Is Expected To Be Resolved
Year Last Renovated Year Property Last Renovated
</TABLE>
- -------
Most Recent Fiscal YTD Figures Are From The Last Financials Processed By The
Servicer Pursuant To The Terms Of The Trust Document, And Cover The Period From
The Start Date To The End Date.
<TABLE>
<CAPTION>
NEW FIELDS ADDED:
- -----------------
<S> <C> <C> <C> <C>
Cap Rate Assigned 81 Numeric 10 Cap Rate Assigned
FCL Sale Date (Expected or Actual) 82 AN YYYYMMDD FCL Sale Date Expected or Actual
</TABLE>
Page 3 of 4
<PAGE>
COMMERCIAL REAL ESTATE SECONDARY MARKET SECURITIZATION ASSOCIATION
CSSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
Exhibit I-10
<TABLE>
<CAPTION>
LIQUIDATION/PREPAYMENT CODE LEGEND STATUS OF MORTGAGE LOAN LEGEND MODIFICATION CODE LEGEND
- ----------------------------------- --------------------------------------------------------- ------------------------------
<S> <C> <C> <C> <C> <C>
1 Partial Liq'n (Curtailment) A Payment Not Received But Still in Grace Period 1 Maturity Date Extension
2 Payoff Prior To Maturity B Late Payment But Less Than 1 Month Delinquent 2 Amortization Change
3 Disposition 0 Current 3 Principal Write-Off
4 Repurchase 1 One Month Delinquent 4 Combination
5 Full Payoff At Maturity 2 Two Months Delinquent
6 DPO 3 Three Or More Months Delinquent
7 Liquidation 4 Assumed Sched Payment (Performing Matured Ball'n)
7 Foreclosure
9 RED
WORKOUT STRATEGY CODE LEGEND
---------------------------------------------------------
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 4 of 4
<PAGE>
EXHIBIT I-11
FORM OF CSSA PROPERTY DATA FILE
I-11-1
<PAGE>
CSSA PROPERTY DATA FILE
EXHIBIT I-11
<TABLE>
<CAPTION>
FIELD NAME FIELD NUMBER TYPE FORMAL DESCRIPTION
- ---------- ------------ ---- ------ -----------
<S> <C> <C> <C> <C>
Transaction ID 1 AN XXXK97001 Unique Issue Identification Mnemonic
Loan Id 2 AN 00000000012345 Unique Identification Number Assigned to
Each Collateral Item in a Pool
Prospectus Loan ID 3 AN 123 Unique Identification Number Assigned to
Each Collateral Item In the Prospectus
Property ID 4 AN 1001-001 Should contain Prospectus ID and property
identifier, e.g., 1001-001, 1000-002
Distribution Date 5 AN YYYYMMDD
Cross-Collateralized Loan Grouping 6 Numeric 9(3) All Loans With the Same Numeric Value
Are Crossed
Property Name 7 AN Text
Property Address 8 AN Text
Property City 9 AN Text
Property State 10 AN Text
Property Zip Code 11 AN 30303
Property County 12 AN Text
Property Type Code 13 AN MF
Year Built 14 AN YYYY
Year Last Renovated 15 AN YYYY
Net Square Feet at Securitization 16 Numeric 25000 RT, IN, WH, OF, MU, SS, OT - SF
# of Units/Beds/Rooms at Securitization 17 Numeric 75 MF, MHP, LO, HC - Units
Property Status 18 AN 1 1=FL, 2=REO, 3=Defeased, 4=Partial
Releases, 5=Released, 6=Same as at
Securitization
Allocated Percentage of Loan
at Securitization 19 Numeric 0.75 Issuer to allocate loan % attributable to
property for multi-property loans
Current Allocated Percentage 20 Numeric 0.75 Calculation based on Current Allocated
Loan Amount and Current SPB for
associated loan
Current Allocated Loan Amount 21 Numeric 5900900 Maintained by servicer
Ground Lease (Y/N) 22 AN N Either Y=Yes, S=Subordinate, N=No ground
lease
Other Escrow / Reserve Balances 23 Numeric 25000
Most Recent Appraisal Date 24 AN YYYYMMDD
Most Recent Appraised Value 25 Numeric 10000000
Date Asset is Expected to be Resolved 26 AN YYYYMMDD Could be different dates for different
properties if foreclosing
Foreclosure Date 27 AN YYYYMMDD
REO Date 28 AN YYYYMMDD
Occupancy % 29 Numeric 0.75 Map to Most Recent Fiscal YTD Physical
Occupancy in CSSA, multiply times
Current Allocated %
Occupancy Date 30 Numeric YYYYMMDD
Date Lease Rollover Review 31 AN YYYYMMDD Rollover review to be completed every
12 months
% Sq. Feet expiring 1-12 months 32 Numeric 0.20
% Sq. Feet expiring 13-24 months 33 Numeric 0.20
% S1. Feet expiring 25-36 months 34 Numeric 0.20
% Sq. Feet expiring 37-48 months 35 Numeric 0.20
% Sq. Feet expiring 49-60 months 36 Numeric 0.20
Largest Tenant (Tenant Name) 37 AN Text For Office, WH, Retail, Industrial,
'Only if disclosed in the offering
document
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant (tenant Name) 39 AN Text For Office, WH, Retail, Industrial,
'Only if disclosed in the offering
document
Square Feet of 2nd Largest Tenant 40 Numeric 15000.000
3rd largest Tenant (Tenant Name) 41 AN Text
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric 12 Needed to indicate month ending for
borrower's Fiscal Year
Secruitization Financials As Of Date 44 AN YYYYMMDD
Revenue at Securitization 45 Numeric 10000000.00
Operating Expenses at Securitization 46 Numeric 10000000.00
NOI At Securitization 47 Numeric 10000000.00
DSCR At Securitization 48 Numeric 15 Multiply times the Allocated % at
Securitization
Appraisal Value At Securitization 49 Numeric 10000000.00
Appraisal Date At Securitization 50 AN YYYYMMDD
Physical Occupancy At Securitization 51 Numeric Multiply times the Allocated % at
Securitization
<PAGE>
Date of last Inspection 52 AN YYYYMMDD
Preceding FY Financial As Of Date 53 AN YYYYMMDD
Preceding Fiscal Year Revenue 54 Numeric 10000000.00
Preceding Fiscal Year Expenses 55 Numeric 10000000.00
Preceding Fiscal Year NOI 56 Numeric 10000000.00
Precdding Fiscal Year Debt Service 57 Numeric 10000000.00
Preceding Fiscal Year DSCR 58 Numeric 13 Multiply times the Allocated % at
Securitization
Preceding Fiscal Year Physical Occupancy 59 Numeric 09 Multiply times the Allocated % at
Securitization
Sec Preceding FY Financial As Of Date 60 AN YYYYMMDD
Second Preceding FY Revenue 61 Numeric 10000000.00
Second Preceding FY Expenses 62 Numeric 10000000.00
Second Preceding FY NOI 63 Numeric 10000000.00
Second Preceding FY Debt Service Amt 64 Numeric 10000000.00
Second Preceding FY DSCR 65 Numeric 1.3
Second Preceding FY Physical Occupancy 66 Numeric 0.90
</TABLE>
<PAGE>
EXHIBIT J
FORM OF PAYMENTS AFTER DETERMINATION REPORT
[TO COME FROM TRUSTEE]
J-1
<PAGE>
EXHIBIT K
CERTIFICATE OF INSURANCE OF SERVICER AND SPECIAL SERVICER
Aon Financial Services Group, Inc.
A Division of Aon Risk Services
Two World Trade Center
New York, NY 10840
Certificate of Insurance
------------------------
Insured: General Electric Company including but not limited to
GE Capital Corporation and
GE Capital Asset Management Corp.
Insurers: Zurich Insurance Company
Coverage: (1) Errors & Omissions for Mortgage Impairment
(2) Crime Insurance including employee Dishonesty
Limit of Liability: $550,000,000 per claim/policy aggregate
Deductible: (1) $250,000 Errors & Omissions
(2) $1,000,000 Fidelity
Policy Number: DOC 911 2480 00
Policy Period: June 11, 1996 to June 11, 2001
Cancellation Clause: This policy noncancellable by Insurer or Insured.
/s/ Gary R. Phillips
------------------------------------------------------
Authorized Representative
Gary R. Phillips
K-1
<PAGE>
Schedule 1
SCHEDULE 1
MORTGAGE LOANS CONTAINING ADDITIONAL DEBT
LOAN# LOAN NAME CUT OFF DATE BALANCE
----- --------- --------------------
9100 Patidar Hotel Portfolio 6,080,000.00
9529 Washington Commons 9,382,148.57
9691 Clemens Place Apartments 14,100,000.00
11839 Pitney Bowes 4,394,971.78
11969 Founders Plaza & Tower 14 20,833,834.70
12252 Narberth Hall Apartments 3,237,860.96
16393 Lomas Santa Fe Center 2,483,822.93
16771 Central Park Mews 6,978,073.89
16814 Timonium Crossing S.C. 5,596,985.92
17702 Camino Encinitas Plaza 3,296,925.79
17820 240 West 35th Street 7,996,604.59
Page 1
<PAGE>
Schedule 2
SCHEDULE 2
MORTGAGE LOANS WHICH INITIALLY PAY INTEREST ONLY
<TABLE>
<CAPTION>
INTEREST
GROSS MORTGAGE ACCRUAL ADMINISTRATIVE
LOAN NUMBER LOAN NAME CUT-OFF BALANCE RATE METHOD FEE
----------- --------- --------------- -------------- --------- --------------
<S> <C> <C> <C> <C> <C>
</TABLE>
Page 1
<PAGE>
Schedule 3
SCHEDULE 3
MORGTAGE LOANS WITHOUT DEFEASANCE PROVISIONS
<TABLE>
<CAPTION>
Loan# Loan Name Cut Off Date Balance Prepayment Description Lockout Period Freely Callable Period
- ----- --------- -------------------- ---------------------- -------------- ----------------------
<S> <C> <C> <C> <C> <C>
12073 Stoneridge Corporate Park 5,986,156.79 greater than 1% or YM 48 0
16363 Clarendon Apartments 10,467,141.83 greater than 1% or YM 60 3
</TABLE>
Page 1
<PAGE>
Schedule 4
SCHEDULE 4
INTEREST RESERVE LOANS
<TABLE>
<CAPTION>
GROSS INTEREST
MORTGAGE ACCRUAL ADMINISTRATIVE
LOAN NUMBER LOAN NAME CUT-OFF BALANCE RATE METHOD FEE
----------- --------- --------------- -------- -------- --------------
<S> <C> <C> <C> <C> <C> <C>
1 9556 Victoria Inn Apartments 4,184,392.31 5.7600% Actual/360 0.057%
2 11851 Turnpike Shopping Center 1,793,436.42 5.8400% Actual/360 0.057%
3 8747 Hamilton Station Apartments 9,466,781.34 6.0150% Actual/360 0.057%
4 8722 The Lakes Apartment Complex 6,377,621.11 6.0150% Actual/360 0.057%
5 11423 Tropicana Royale Apartments 4,987,126.66 6.1500% Actual/360 0.057%
6 11552 Lake Hills Shopping Center 3,687,541.57 6.1700% Actual/360 0.057%
7 11260 1630-38 12th Street 1,938,515.04 6.2100% Actual/360 0.057%
8 11265 Multi-Media Office 1,639,515.29 6.2100% Actual/360 0.057%
9 11272 Fox Hill Park Offices 1,395,446.43 6.3100% Actual/360 0.057%
10 11384 Fox Hill Garden Offices 1,395,446.43 6.3100% Actual/360 0.057%
11 9424 Brookwood Mobile Home Park 4,211,360.45 6.3400% Actual/360 0.057%
12 12252 Narberth Hall Apartments 3,237,860.97 6.4000% Actual/360 0.057%
13 11687 Windom Gables Townhomes 2,343,498.13 6.4000% Actual/360 0.057%
14 11647 3344 Castle Heights Apartments 1,995,211.18 6.4500% Actual/360 0.057%
15 16771 Central Park Mews 6,978,073.89 6.4600% Actual/360 0.057%
16 11279 The Springs of Scottsdale 3,491,722.06 6.5000% Actual/360 0.057%
17 11116 Madison Plaza 2,633,702.98 6.5500% Actual/360 0.057%
18 12253 Merion Court Apartments 2,176,629.82 6.5900% Actual/360 0.057%
19 12073 Stoneridge Corporate Park 5,986,156.80 6.6000% Actual/360 0.057%
20 11997 Kittridge Apartments 4,087,766.98 6.6500% Actual/360 0.057%
21 6129 Santa Fe Center 1,295,673.80 6.6900% Actual/360 0.057%
22 12074 325 East Main Street 3,891,331.65 6.7000% Actual/360 0.057%
23 8673 Meadow Valley & Valley Stream MHP 1,295,014.83 6.7000% Actual/360 0.057%
24 16464 Stonecrest 17,947,054.90 6.7050% Actual/360 0.057%
25 6131 Southwest Industrial Center 1,055,045.28 6.7050% Actual/360 0.057%
26 6019 525 Broadway 3,446,735.31 6.7400% Actual/360 0.057%
27 12022 North Village Apartments 3,991,112.42 6.7500% Actual/360 0.057%
28 9125 Wyndmoor Garden Apartments 3,138,435.59 6.7606% Actual/360 0.057%
29 12257 Yellowstone Shopping Center 1,798,796.56 6.7750% Actual/360 0.057%
30 12178 The Drexel Building 2,891,635.54 6.7800% Actual/360 0.057%
31 12075 123 East Main Street 3,492,381.60 6.8000% Actual/360 0.057%
32 9280 The Arbor Plaza 2,192,375.45 6.8000% Actual/360 0.057%
33 9327 Green Countrie Apartments 2,430,143.29 6.8060% Actual/360 0.057%
34 9328 Abbey House 1,388,653.31 6.8060% Actual/360 0.057%
35 16363 Clarendon Apartments 10,467,141.83 6.8125% Actual/360 0.057%
36 11506 Woodstream Apartments 4,116,455.03 6.8200% Actual/360 0.057%
37 11098 Lowden Gardens 1,767,185.64 6.8200% Actual/360 0.057%
38 16561 Landmark West Apartments 4,596,973.85 6.8300% Actual/360 0.057%
39 9565 Washington Tower 4,284,147.62 6.8600% Actual/360 0.057%
40 11868 144 East 44th Street 3,986,333.66 6.8750% Actual/360 0.057%
41 8939 Sutter Square Galleria 4,240,876.43 6.8850% Actual/360 0.057%
42 9144 Regent Place Apartments 7,516,100.56 6.9100% Actual/360 0.057%
43 8548 Hyde Park Office Condominiums 6,083,091.08 6.9300% Actual/360 0.057%
44 16393 Lomas Santa Fe Center 2,483,822.90 6.9340% Actual/360 0.055%
45 16462 South Bay Marketplace 11,567,888.28 6.9350% Actual/360 0.057%
46 11639 MAI Chaimson Headquarters 1,465,783.38 6.9400% Actual/360 0.057%
47 9056 Highlander Shopping Center 4,679,984.89 6.9500% Actual/360 0.057%
48 9291 Airport Thruway Plaza 5,784,051.28 6.9600% Actual/360 0.057%
49 11516 Kingsbury Square 4,977,854.14 6.9600% Actual/360 0.057%
50 9513 Cohas Brook Shopping Center 4,275,391.78 6.9600% Actual/360 0.057%
51 6561 Aborn Shopping Center 3,986,631.56 6.9900% Actual/360 0.057%
52 8484 Eden Center 10,838,384.65 7.0000% Actual/360 0.057%
53 11102 1509 Glen Avenue Associates 3,734,276.13 7.0100% Actual/360 0.057%
54 11162 Pine Beil Portfolio 2,731,669.14 7.0500% Actual/360 0.057%
</TABLE>
<PAGE>
EXECUTION COPY
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT (this
"Agreement") dated as of February 1, 1999, is between Bear Stearns Commercial
Mortgage Securities Inc., a Delaware corporation (the "Purchaser") and Bear
Stearns Funding, Inc. (the "Mortgage Loan Seller").
The Mortgage Loan Seller intends to sell, assign and transfer
to the Purchaser, subject to the terms and conditions set forth below, certain
mortgage loans (the "Mortgage Loans"), which are described in, and set forth
in, the mortgage loan schedule (the "Mortgage Loan Schedule") attached as Annex
A to the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of February 1, 1999, by and between Bear Stearns
Commercial Mortgage Securities Inc., as depositor, GE Capital Loan Services,
Inc., as servicer (the "Servicer") and GE Capital Realty Group, Inc., as
special servicer (the "Special Servicer"), LaSalle National Bank, as trustee
(in such capacity, the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the
"Fiscal Agent").
The Purchaser intends to deposit the Mortgage Loans into a
trust fund (the "Trust Fund"), beneficial ownership of which will be evidenced
by a series of mortgage pass-through certificates (the "Certificates"). The
Trust Fund will be created and the Certificates will be issued pursuant to the
Pooling and Servicing Agreement. The Purchaser intends to sell certain of the
Certificates (the "Privately Placed Certificates") in a private placement
pursuant to Section 4(2) of the Securities Act of 1933 (the "Securities Act")
through Bear, Stearns & Co. Inc. (in such capacity, the "Placement Agent") on
the Closing Date (defined below) pursuant to a Private Placement Agency
Agreement (the "Placement Agency Agreement") dated January 26, 1999. The
Purchaser intends to sell certain of the Certificates (the "Publicly Offered
Certificates") to Bear, Stearns & Co. Inc. (in such capacity, the
"Underwriter") on the Closing Date pursuant to an underwriting agreement and a
terms agreement (collectively, the "Underwriting Agreement") dated January 26,
1999. Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals,
which are incorporated into the operative provisions of this Agreement by this
reference, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I.
DEFINITIONS
"Breach": Has the meaning ascribed to such term in Section 3.3.
"Closing Date": February 10, 1999.
"Cut-off Date": February 1, 1999.
<PAGE>
"Defective Document Mortgage Loan": Has the meaning ascribed to such
term in Section 3.3(b).
"Existing Conditions": Has the meaning ascribed to such term in
Section 3.2(a)(xxii).
"Founders Plaza & Tower 14 Intercreditor Agreement": The intercreditor
agreement, dated August 7, 1998, by and between the Mortgage Loan Seller and
Bear, Stearns Funding, Inc., setting forth the respective rights thereof with
respect to the collateral securing the Founders Plaza & Tower 14 Mortgage Loan
and the Founders Plaza & Tower 14 Pari Passu Mortgage Loan and the enforcement
of provisions of such mortgage loans (including with respect to foreclosure on
such collateral), substantially in the form attached hereto as Exhibit M.
"Founders Plaza & Tower 14 LC": A $5,100,000 letter of credit issued
by Bank of America that may be drawn and applied to the repayment of the
Founders Plaza & Tower 14 Pari Passu Mortgage Loan if certain conditions to
mandatory prepayment of such mortgage loan are not timely satisfied.
"Founders Plaza & Tower 14 Mortgage Loan": The Mortgage Loan
designated as Mortgage Loan ID number 11969 on the Mortgage Loan Schedule.
"Founders Plaza & Tower 14 Pari Passu Mortgage Loan" The mortgage loan
in the principal amount of $5,100,000, which is secured on a pari passu basis
with the Founders Plaza & Tower 14 Mortgage Loan pursuant to the terms of the
Founders Plaza & Tower 14 Intercreditor Agreement.
"Hazardous Materials": Has the meaning ascribed to such term in
Section 3.2(a)(xxii).
"Intercreditor Agreement": means the Founders Plaza & Tower 14
Intercreditor Agreement or the Lomas Santa Fe Center Intercreditor Agreement,
as indicated by the context.
"Lomas Santa Fe Center Intercreditor Agreement": The intercreditor
agreement, dated June 29, 1998, by and between the Mortgage Loan Seller and
Bear, Stearns Funding, Inc., setting forth the respective rights thereof with
respect to the collateral securing the Lomas Santa Fe Center Mortgage Loan and
the Lomas Santa Fe Center Pari Passu Mortgage Loan and the enforcement of
provisions of such mortgage loans (including with respect to foreclosure on
such collateral), substantially in the form attached hereto as Exhibit N.
"Lomas Santa Fe Center Mortgage Loan": The Mortgage Loan designated as
Mortgage Loan ID number 16393 on the Mortgage Loan Schedule.
"Lomas Santa Fe Center Pari Passu Loan": The mortgage loan in the
principal amount of $21,400,000, which is secured on a pari passu basis with
the Lomas Santa Fe Center Mortgage Loan pursuant to the terms of the Lomas
Santa Fe Center Intercreditor Agreement.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee or leasehold interest in the related Mortgaged Property.
2
<PAGE>
"Mortgage File": Has the meaning ascribed to such term in Section
2.4(a).
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund; it being understood that the Pari Passu Loan is not a Mortgage Loan. As
used herein, the term "Mortgage Loan" includes each related Mortgage Note, the
related Mortgage and other documents contained in the related Mortgage File and
any related agreements.
"Mortgage Loan Documents": Has the meaning ascribed to such term in
Section 3.2(a)(iii).
"Mortgage Note": Each of the original executed notes evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Other Debt": Has the meaning ascribed to such term in Section
3.2(a)(xliii).
"Pari Passu Loan": Means the Founders Plaza & Tower 14 Pari Passu Loan
or the Lomas Santa Fe Center Pari Passu Loan, as indicated by the context.
"Purchase Price": Has the meaning ascribed to such term in Section
2.2.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances and P&I Advances in accordance with the Pooling
and Servicing Agreement, which rate per annum shall equal the "Prime Rate"
published in the "Money Rates" section of "The Wall Street Journal" (or, if
such section or publication is no longer available, such other comparable
publication as determined by the Trustee in its reasonable discretion) as may
be in effect from time to time, or, if the "Prime Rate" no longer exists, such
other comparable rate (as determined by the Trustee in its reasonable
discretion) as may be in effect from time to time.
"Repurchase Price": With respect to any Mortgage Loan or REO Loan
required to be purchased pursuant to Section 3.3, an amount equal to the sum
of:
(i) the outstanding principal balance of such Mortgage Loan
as of the date of purchase;
(ii) all accrued and unpaid interest to but not including the
Due Date in the Due Period during which such Mortgage Loan or REO Loan
was purchased;
(iii) all related unreimbursed Servicing Advances and accrued
and unpaid interest or related P&I Advances at the Reimbursement Rate
and unpaid Servicing Fees and Special Servicing Fees (except where the
Servicer is the purchaser); plus
3
<PAGE>
(iv) all reasonable out-of-pocket expenses reasonably
incurred or to be incurred by the Servicer, the Special Servicer or
the Trustee in respect of the Breach or defect giving rise to the
repurchase obligation, including any expenses arising out of the
enforcement of the repurchase obligation.
"Senior Debt": Has the meaning ascribed to such term in Section
3.2(a)(xliii).
"Subordinate Lender": Has the meaning ascribed to such term in Section
3.2(a)(xliii).
[End of Article I]
4
<PAGE>
ARTICLE II.
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
2.1. Agreement to Sell Mortgage Loans. (a) Subject to the
terms and conditions of this Agreement, the Mortgage Loan Seller agrees to
sell, and the Purchaser agrees to purchase, the Mortgage Loans on the Closing
Date; provided, however, that the Purchaser shall not be obligated to purchase
any Mortgage Loan which fails to satisfy the representations and warranties set
forth in Section 3.1 hereof.
(b) The closing for the purchase and sale of the Mortgage
Loans shall take place at the offices of O'Melveny & Myers LLP, New York, New
York, at 10:00 a.m. New York time, on the Closing Date.
2.2. Purchase Price. On the Closing Date, as full
consideration for the Mortgage Loan Seller's sale of the Mortgage Loans to the
Purchaser, the Purchaser will deliver to the Mortgage Loan Seller the purchase
price (the "Purchase Price") for the Mortgage Loans in an amount equal to
$498,879,046.46 in immediately available funds.
2.3. Conveyance of Mortgage Loans. On the Closing Date, the
Mortgage Loan Seller shall sell, transfer, assign, set over and otherwise
convey to the Purchaser, without recourse but subject to the terms of this
Agreement, and the Purchaser shall purchase, all right, title and interest of
the Mortgage Loan Seller in and to the Mortgage Loans, including: (i) all
scheduled payments of interest and principal due on or with respect to the
Mortgage Loans after the Cut-off Date (whether or not received); (ii) all other
payments of interest and principal received by the Mortgage Loan Seller on or
with respect to the Mortgage Loans after the Cut-off Date, other than any such
payments of interest or principal which were due on or prior to the Cut-off
Date; and (iii) all of the Mortgage Loan Seller's right, title and interest in
and to the proceeds of any related title, hazard or other insurance policies
received by the Mortgage Loan Seller on or with respect to the Mortgage Loans
after the Cut-off Date. Upon payment of the Purchase Price as provided in
Section 2.2, the Mortgage Loan Seller shall be deemed to have sold,
transferred, assigned, set over and conveyed to the Purchaser the Mortgage
Loans, together with all right title and interest of the Mortgage Loan Seller
in and to the Mortgage Loans as described in the immediately preceding
sentence. Upon such sale the ownership of each Mortgage Note, the Mortgage and
all related documents and instruments contained in the related Mortgage File
shall immediately vest in the Purchaser, its successors and 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 Mortgage Loan Seller
shall immediately vest in the Purchaser, its successors and assigns. The
contents of any Mortgage File in the possession of the Mortgage Loan Seller at
any time after such sale, and any payments on the Mortgage Loans due after the
Cut-off Date and received by the Mortgage Loan Seller, shall be held in trust
by the Mortgage Loan Seller for the benefit of the Purchaser, its successors
and assigns as the owner thereof, and shall be promptly delivered by the
Mortgage Loan Seller to or upon the order of the Purchaser, its successors and
assigns.
2.4. Delivery of Mortgage Loan Documents. (a) On or before
the Closing Date, the Mortgage Loan Seller shall deliver to and deposit with,
or cause to be delivered to and deposited with, the Purchaser, the Trustee or a
custodian of the Trustee (as Purchaser shall
5
<PAGE>
direct), each of the following documents for each Mortgage Loan (such
documents, the "Mortgage File"):
(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 Mortgage Loan 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 the
following form: "Pay to the order of LaSalle National Bank, as trustee
for the registered Holders of Bear Stearns Commercial Mortgage
Securities Inc. Commercial Mortgage Pass-Through Certificates, Series
1999-C1, without recourse, representation or warranty, express or
implied";
(ii) the original Mortgage (or a certified copy thereof from
the applicable recording office) and originals (or certified copies
from the applicable recording office) of any intervening assignments
thereof showing a complete chain of assignment from the originator of
the Mortgage Loan to the Mortgage Loan Seller, in each case with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form, to "LaSalle National Bank, as trustee for the registered Holders
of Bear Stearns Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 1999-C1"; provided that,
with respect to the Servicing Retained Mortgage Loan, a copy of the
equivalent delivered to the Trustee under the Servicing Retained
Servicing Agreement shall be delivered hereunder;
(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 Mortgage Loan Seller, in each case with evidence of recording
thereon;
(v) an original assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage), in
recordable form, executed by the Mortgage Loan Seller in favor of the
Trustee (in such capacity); provided that, with respect to the
Servicing Retained Mortgage Loan, a copy of the equivalent delivered
to the Trustee under the Servicing Retained Servicing Agreement shall
be delivered hereunder;
(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 Mortgage Loan Seller, in each case with evidence of recording
thereon;
(vii) an original assignment of any related Security
Agreement (if such item is a document separate from the Mortgage), in
recordable form, executed by the Mortgage
6
<PAGE>
Loan Seller in favor of the Trustee (in such capacity); provided
that, with respect to the Servicing Retained Mortgage Loan, a copy of
the equivalent delivered to the Trustee under the Servicing Retained
Servicing Agreement shall be delivered hereunder;
(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 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; with respect to each Related Trust Fund Mortgage Loan,
the related Pari Passu Intercreditor Agreement, a copy of the note
evidencing the related Pari Passu Loan and a copy of the Pari Passu
LC, if any; and with respect to the Servicing Retained Mortgage Loan,
a copy of the Servicing Retained Servicing Agreement and the Servicing
Retained Mortgage Loan Intercreditor Agreement; and
(xiv) a survey of the related Mortgaged Property; and
(xv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
(b) If the Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, the original Mortgage Note, the Mortgage
Loan Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original
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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 Mortgage
Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan,
any of the documents and/or instruments referred to in clauses (ii), (iv),
(vi), (vii) and (viii) of Section 2.4(a), 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
Mortgage Loan 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) of Section 2.4(a) 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 120 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 Mortgage Loan 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 Mortgage Loan Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the
documents and/or instruments referred to in 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 Section 2.4(b) shall be deemed to have been
satisfied as to such non-delivered document or instrument and such
non-delivered document or instrument shall be deemed to have been included in
the Mortgage File, provided that a photocopy of such non-delivered document or
instrument (with evidence of recording thereon and certified in the case of the
documents and/or instruments referred to in clause (ii) of Section 2.4(a) 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, and notwithstanding the foregoing
or Section 2.4(a), the Mortgage Loan 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
Mortgage Loan Seller by the applicable filing office, and the Mortgage Loan
Seller may deliver an assignment referred to in clauses (iii), (v) or (vii) of
Section 2.4(a) 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 Mortgage Loan Seller by the applicable recording office. The Mortgage Loan
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 subsection (b).
(c) Except under the circumstances provided for in the last
sentence of this subsection (c), the Mortgage Loan Seller shall as to each
Mortgage Loan, promptly (and in any event within 30 days of the later of the
Closing Date and the Purchaser's and Trustee's actual
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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) of Section 2.4(a) 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 Mortgage Loan 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) of the Section 2.4(a), or to file any UCC-3 referred to in
clause (xi) of Section 2.4(a) 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 Mortgage
Loan Seller or the Purchaser.
(d) All documents and records in the Mortgage Loan Seller's
possession relating to the Mortgage Loans (including financial statements,
operating statements and any other information provided by the respective
Mortgagor from time to time) or copies thereof, that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the Servicer on or before the Closing Date.
(e) Mortgage Loan Seller shall cause all funds on deposit in
escrow accounts maintained with respect to the Mortgage Loans in the name of
the Mortgage Loan 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.
2.5. Acceptance of Mortgage Loans. Within 90 days of the
Closing Date, the Purchaser or an assignee thereof, which may include the
Trustee or a Custodian on its behalf, shall complete a review of each of the
Mortgage Loan documents delivered or caused to be delivered by the Mortgage
Loan Seller constituting the Mortgage Files in order to ascertain, as to each
Mortgage Loan, that (i) all documents required to be delivered pursuant to
Section 2.4 are in its possession, (ii) such documents appear regular on their
face and relate to such Mortgage Loan, and (iii) based on the examinations
referred to in this Section 2.5 and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses [(i), (ii), (iii), (iv), (vi) and (viii)(c)] of the
definition of "Mortgage Loan Schedule" set forth in the Pooling and Servicing
Agreement is correct. If the Purchaser or such assignee discovers or receives
notice that any such document described in the first or second preceding
sentence is a Defective Document Mortgage Loan, the Mortgage Loan Seller shall
correct or cure any such omission or defect or repurchase such Defective
Document Mortgage Loan in accordance with Section 3.3 of this Agreement.
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ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS;
REPURCHASE OF DEFECTIVE MORTGAGE LOANS
3.1. Representations and Warranties of the Purchaser.
(a) The Purchaser hereby represents and warrants that on the
Closing Date:
(i) The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware, and the Purchaser has taken all necessary
corporate action to authorize the execution, delivery and
performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and
all the transactions contemplated hereby, including, but not
limited to, the power and authority to purchase and acquire
the Mortgage Loans in accordance with this Agreement;
(ii) Assuming the due authorization, execution and
delivery of this Agreement by each other party hereto, this
Agreement and all of the obligations of the Purchaser
hereunder are the legal, valid and binding obligations of the
Purchaser, enforceable against the Purchaser in accordance
with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) The execution and delivery of this Agreement
and the performance of its obligations hereunder by the
Purchaser will not conflict with any provisions of any law or
regulations to which the Purchaser is subject, or conflict
with, result in a breach of or constitute a default under any
of the terms, conditions or provisions of the certificate of
incorporation or the by-laws of the Purchaser or any
indenture, agreement or instrument to which the Purchaser is
a party or by which it is bound, or any order or decree
applicable to the Purchaser, or result in the creation or
imposition of any lien on any of the Purchaser's assets or
property, which would materially and adversely affect the
ability of the Purchaser to carry out the transactions
contemplated by this Agreement; the Purchaser has obtained
any consent, approval, authorization or order of any court or
governmental agency or body required for the execution,
delivery and performance by the Purchaser of this Agreement;
(iv) There is no action, suit or proceeding pending
or, to the Purchaser's knowledge, threatened against the
Purchaser in any court or by or before any other governmental
agency or instrumentality which would materially and
adversely affect the validity of the Mortgage Loans or the
ability of the Purchaser to carry out the transactions
contemplated by this Agreement.
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3.2. Representations and Warranties of the Mortgage Loan
Seller. The Mortgage Loan Seller hereby represents and warrants with respect to
each Mortgage Loan that, as of the date specified below or, if no such date is
specified, as of the Closing Date:
(a) Representations and Warranties as to the Mortgage Loans.
The Mortgage Loan Seller hereby represents and warrants with respect to each
Mortgage Loan that, as of the date specified below or, if no such date is
specified, as of the Closing Date:
(i) Title. Immediately prior to the sale, transfer
and assignment to the Purchaser, the Mortgage Loan Seller had
good title to, and was the sole owner of, each Mortgage Loan
and had full right and authority to sell, transfer and assign
each Mortgage Loan;
(ii) No Other Security Interests. The Mortgage Loan
Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of
any nature encumbering such Mortgage Loan and none of the
Mortgage Note, the Mortgage or any other Mortgage Loan
Documents (as defined below) prohibits such transfer;
(iii) Documents Valid. Each related Mortgage Note,
Mortgage, Assignment of Leases (if any) and other agreement
executed in connection with such Mortgage Loan (collectively,
the "Mortgage Loan Documents") are legal, valid and binding
obligations of the related Mortgagor, enforceable in
accordance with their terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of
creditors' rights generally, or by general principles of
equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law), and except that certain
provisions of such Mortgage Loan Documents are or may be
unenforceable in whole or in part under applicable law, but
such unenforceability of such provisions does not render such
Mortgage Loan Documents inadequate for the practical
realization of the rights and benefits intended to be
afforded thereby;
(iv) Assignment of Leases. The mortgage file with
respect to such Mortgage Loan contains an assignment of
leases either as a separate instrument or incorporated into
the related Mortgage or both, which creates a valid,
collateral or first priority assignment of, or a valid first
priority security interest in, certain rights under the
related lease (including rights to receive payments
thereunder), subject only to a license granted to the related
Mortgagor to exercise certain rights and to perform certain
obligations of the lessor under such leases, including the
right to operate the related Mortgaged Property;
(v) Assignment of Mortgage. Each related assignment
of Mortgage, assignment of Mortgage Loan Documents and
Mortgage Note allonge from the Mortgage Loan Seller to the
Purchaser and any related reassignment of Assignment of
Leases, if any, and any assignment of any other agreement
executed in connection with the assignment of such Mortgage
Loan, from the
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Mortgage Loan Seller to the Purchaser has been duly
authorized, executed and delivered by the Mortgage Loan
Seller and constitutes the legal, valid and binding
assignment from the Mortgage Loan Seller to the Purchaser,
except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors'
rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a
proceeding in equity or at law). Each assignment of
Mortgage and any related reassignments of Assignment of
leases, if any, is in recordable form;
(vi) No Modification; No Release. Since origination
of such Mortgage Loan neither such Mortgage Loan nor any
related Mortgage Loan Document has been modified, altered,
satisfied, canceled, subordinated, impaired, waived or
rescinded, and no material portion of the related Mortgaged
Property has been released from the lien of the related
Mortgage, in each case, in any manner which materially and
adversely affects the value of the Mortgage Loan or
materially interferes with the security intended to be
provided by such Mortgage, and the terms of the related
Mortgage do not provide for release of any material portion
of the Mortgaged Property from the lien of the Mortgage
(except in consideration of payment therefor) in any manner
that would materially and adversely affect the value of the
Mortgage Loan or materially interfere with the security
intended to be provided to be provided by such Mortgage;
(vii) No Mechanics' Liens. Each related Mortgage is
a valid and enforceable first priority lien on the related
Mortgaged Property (subject to the matters described in
clause (viii) below), and such Mortgaged Property is free and
clear of any mechanics' and materialmen's liens which are
superior to or equal with the lien of the related Mortgage,
except those which are insured against by a lender's title
insurance policy (as described in clause (viii) below);
(viii) First Priority Lien. The lien of each related
Mortgage as a first priority lien in the original principal
amount of such Mortgage Loan (as set forth on the Mortgage
Loan Schedule) after all advances of principal, is insured by
an ALTA lender's title insurance policy (or a binding
commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Mortgage Loan Seller,
its successors and assigns, subject only to (a) the lien of
current real property taxes, ground rents, water charges,
sewer rents and assessments not yet due and payable, (b)
covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which,
individually or in the aggregate, materially interferes with
the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations when they become
due or materially and adversely affects the operation or
value of the Mortgaged Property and (c) the exceptions
(general and specific) set forth in such policy, (i) none of
which, individually or in the aggregate, materially
interferes with the current use or operation of the Mortgaged
Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its
obligations when they become due or
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materially and adversely affects the value of the Mortgaged
Property and (ii) none of which constitute standard general
exceptions for encroachments, boundary and other survey
matters; the Mortgage Loan Seller and its successors or
assigns are the only named insureds of such policy; such
policy is assignable to the Purchaser without the consent of
or any notification to the insurer, and is in full force and
effect upon the consummation of the transactions contemplated
by this Agreement; no claims have been made under such policy
and to Mortgage Loan Seller's knowledge, no prior holder of
the related Mortgage has done anything, by act or omission,
and the Mortgage Loan Seller has no knowledge of any matter,
which would impair or diminish the coverage of such policy,
and the insurer issuing such policy is qualified to do
business in the jurisdiction in which the related Mortgaged
Property is located;
(ix) Proceeds Fully Disbursed. The proceeds of such
Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder and the Mortgage
Loan Seller covenants that it will not make any future
advances under the Mortgage Loan to the related Mortgagor;
(x) Physical Condition of Mortgaged Property. To the
Mortgage Loan Seller's knowledge, after conducting due
diligence consistent with the practice of institutional
lenders generally for properties of the same type as the
related Mortgaged Property (including the review of any
engineering report prepared in connection with the
origination of, or obtained in connection with the Mortgage
Loan Seller's acquisition of, each Mortgage Loan), each
related Mortgaged Property is free and clear of any damage
that would affect materially and adversely the value of such
Mortgaged Property as security for the Mortgage Loan and, to
the best knowledge of the Mortgage Loan Seller, there is no
proceeding pending for the total or partial condemnation of
such Mortgaged Property, other than proceedings as to partial
condemnation which do not materially and adversely affect the
value of such Mortgaged Property as security for such
Mortgage Loan;
(xi) Licenses and Authorizations. As of the date of
origination of such Mortgage Loan, to the Mortgage Loan
Seller's best knowledge, after conducting due diligence
consistent with the practice of institutional lenders
generally for properties of the same type as the related
Mortgaged Property, the related Mortgagor was in possession
of all material licenses, permits and other authorizations
necessary and required by all applicable laws with regard to
the Mortgagor's ownership and operation of the related
Mortgaged Property and all such licenses, permits and
authorizations were valid and in full force and effect,
except to the extent the failure to obtain or maintain such
licenses, permits and other authorizations does not
materially impair the current use, operation or value of the
related Mortgaged Property or the rights of a holder of the
related Mortgage Loan;
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(xii) Property Inspection. The Mortgage Loan Seller
has inspected or caused to be inspected each related
Mortgaged Property within the past 12 months;
(xiii) No Contingent Interest or Negative
Amortization. Such Mortgage Loan does not have a shared
appreciation feature, other contingent interest feature or
negative amortization feature (except with respect to
Mortgage Loan No. 16496, which is the ARD Loan, as to which
negative amortization may be permitted in certain
circumstances);
(xiv) Whole Loan. Such Mortgage Loan is a whole loan
and contains no equity participation by the lender;
(xv) No Usury. The Mortgage Rate (exclusive of any
default interest, late charges or prepayment premiums to the
extent necessary to comply with applicable usury law) of such
Mortgage Loan complied as of the date of origination with, or
was exempt from, all applicable state or federal laws,
regulations and other requirements pertaining to usury; any
and all other requirements of any federal, state or local
laws, including, without limitation, truth-in-lending, real
estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been
complied with as of the date of origination of such Mortgage
Loan;
(xvi) Taxes. All taxes, governmental assessments,
water charges, sewer rents or other similar charges with
respect to the related Mortgaged Property that prior to the
Closing Date became due and payable in respect of such
Mortgaged Property have been paid or an escrow of funds in an
amount sufficient to cover such payments has been
established;
(xvii) Escrow Deposits. All escrow deposits and
payments required pursuant to the Mortgage Loan are in the
possession, or under the control, of the Mortgage Loan Seller
or its agent and there are no deficiencies in connection
therewith and all such escrows and deposits have been
conveyed by the Mortgage Loan Seller to the Purchaser and
identified as such with appropriate detail;
(xviii) Hazard Insurance. Each related Mortgaged
Property is insured by a fire and extended perils insurance
policy, issued by an insurer meeting the requirements of the
Pooling and Servicing Agreement, and in an amount not less
than the greater of (a) the replacement cost and (b) the
amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property; each
related Mortgaged Property is also covered by business
interruption insurance (or rent loss insurance) and
comprehensive general liability insurance in amounts
generally required by institutional commercial mortgage
lenders for similar properties; and such other insurance in
such amounts and types as would be required generally by
institutional lenders for Mortgaged Properties of the same
types in similar locations. All premiums on such insurance
policies required to be paid as of the date hereof have been
paid; such insurance policies
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contain a standard mortgagee clause for the benefit of the
holder of the Mortgage, its successors and assigns; such
insurance policies require prior notice to the mortgagee of
termination or cancellation, and no such notice has been
received; each related Mortgage or loan agreement obligates
the related Mortgagor to maintain all such insurance and, at
such Mortgagor's failure to do so, authorizes the mortgagee
to acquire and maintain such insurance at the Mortgagor's
cost and expense and to seek reimbursement therefor from such
Mortgagor. Each Mortgage provides that any insurance proceeds
in respect of a casualty (other than business interruption/
rental income insurance) and any condemnation awards or
insurance proceeds will be applied either to the repair or
restoration of the Mortgaged Property or the repayment of the
outstanding principal balance of the Mortgage Loan;
(xix) No Default. There is no material monetary
default, breach, violation or event of acceleration existing
under the related Mortgage or the related Mortgage Note and,
to the Mortgage Loan Seller's best knowledge, no material
non-monetary default, breach, violation or event of
acceleration existing under the related Mortgage or the
related Mortgage Note. To the Mortgage Loan Seller's
knowledge, there is no event (other than payments due but not
yet delinquent) which, with the passage of time or with
notice and the expiration of any grace or cure period, would
constitute such a material default, breach, violation or
event of acceleration;
(xx) Delinquency. No Monthly Payment on such
Mortgage Loan has been more than 30 days delinquent (without
giving effect to any applicable grace period) from the later
of the date of origination of such Mortgage Loan or, if
applicable, the date of acquisition by the Mortgage Loan
Seller of such Mortgage Loan, through the Cut-Off Date; the
Mortgage Loan Seller has not waived any default, breach,
violation or event of acceleration that was material in
nature and existed under the related Mortgage Loan Documents;
(xxi) Customary Provisions. The related Mortgage
contains customary and enforceable provisions such as to
render the principal rights and remedies of the holder
thereof adequate for the realization against the Mortgaged
Property of the principal benefits of the security intended
to be provided thereby, including realization by judicial or,
if applicable and permitted under local law, non-judicial
foreclosure, subject to the effects of bankruptcy or similar
law affecting the right of creditors and the application of
principles of equity, and there is no exemption available to
the Mortgagor which would interfere with such right to
foreclose;
(xxii) Environmental Matters. A Phase I
environmental report (or an update to an existing Phase I
environmental report) was conducted by a reputable
environmental consultant within 12 months of the origination
of such Mortgage Loan which report (or update) did not
indicate any material existence of any dangerous, toxic or
hazardous pollutants, chemicals, wastes or substances
("Hazardous Materials"), except for those conditions (the
"Existing Conditions") that were remediated prior to the
Cut-Off Date, or for which an operations and
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maintenance remediation plan is in effect or with respect to
which a hold-back or other escrow of funds not less than the
costs of such remediation as estimated in such environmental
report (or update) has been created to be held by the
Mortgage Loan Seller or its agent until such remediation has
been completed. To the best of the Mortgage Loan Seller's
knowledge (based on the Phase I environmental reports or
updates and a representation of the related Borrower at the
time of origination of each Mortgage Loan and the absence of
any notice to the contrary), except for the Existing
Conditions, each related Mortgaged Property is in material
compliance with all applicable federal, state and local laws
pertaining to environmental hazards, and no notice of
violation of such laws has been issued by any governmental
agency or authority. In each Mortgage, the related Mortgagor
represents and warrants that, except for the Existing
Conditions, it will not use or cause or permit to exist on
the related Mortgaged Property any Hazardous Materials in any
manner that violates federal, state or local laws,
ordinances, regulations, orders or directives or published
policies relating to the use, storage, treatment,
transportation, manufacture, refinement, handling, production
or disposal of Hazardous Materials. In each Mortgage, the
Mortgagor represents and warrants that no Hazardous Materials
exist on the related Mortgaged Property in any manner that
violates federal, state or local laws, ordinances,
regulations, orders or directives relating to hazardous
materials; provided, however, that in certain instances this
representation is limited to the best of the Mortgagor's
knowledge; the related Mortgagor agrees to indemnify, defend
and hold the Mortgage Loan Seller and its successors and
assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines, expenses
and claims of any kind whatsoever (including attorney's fees
and costs) paid, incurred or suffered by, or asserted
against, any such party resulting from any inaccuracy in any
representation or warranty or any material breach of any
covenant pertaining to Hazardous Materials given by the
related Mortgagor under the related Mortgage;
(xxiii) Acceleration Provisions. Each related
Mortgage or loan agreement contains provisions for the
acceleration of the payment of the unpaid principal balance
of such Mortgage Loan if, (A) without obtaining the written
consent of the Mortgagee, the related Mortgaged Property is
transferred, sold or encumbered in connection with any
additional financing (other than any existing Other Debt
referenced in clause (xliii) below) or (B) without complying
with the requirements of the Mortgage or loan agreement, or
any controlling interest therein, is directly or indirectly
transferred or sold, or in connection with any and each
related Mortgage or loan agreement prohibits the pledge or
encumbrance of the Mortgaged Property (except for matters of
the type described in clause (viii) above) without the
consent of the holder of the Mortgage Loan;
(xxiv) Mortgage. The Mortgage Loan is directly
secured by a Mortgage on a commercial property, multifamily
residential property or manufactured housing community, and
either (1) substantially all of the proceeds of the Mortgage
Loan were used to acquire, improve or protect an interest in
such real property which, as of the origination date, was the
sole security for such Mortgage
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Loan (unless the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the
Code at a time when the Mortgage Loan was not in default or
default with respect thereto was not reasonably foreseeable)
or (2) the fair market value of such real property was at
least equal to 80% of the principal amount of the Mortgage
Loan (a) at origination (or if the Mortgage Loan has been
modified in a manner that constituted a deemed exchange under
Section 1001 of the Code at a time when the Mortgage Loan was
not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such
modification) or (b) at the Closing Date; provided that the
fair market value of the real property interest must first be
reduced by (i) the amount of any lien on the real property
interest that is senior to the Mortgage Loan (unless such
senior lien also secures a Mortgage Loan, in which event the
computation described in clauses (a) and (b) shall be made on
an aggregate basis) and (ii) 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) and (b) shall be
made on an aggregate basis);
(xxv) Mortgage Loan Schedule. The Mortgage Loan
Schedule in the Mortgage Loan Purchase and Sale Agreement is
complete and accurate in all material respects as of the
Cut-Off Date;
(xxvi) REMIC Qualification. Each Mortgage Loan
constitutes a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations 1.860 G-2(f)(2) that treats a
defective obligation as a qualified mortgage, or any
substantially similar successor provision) and each Mortgage
Loan bears interest at a "fixed rate" or at a "variable rate"
within the meaning of Section 860G(a)(1)B of the Code;
(xxvii) Appraisal. The Mortgage File contains an
appraisal of the related Mortgaged Property which appraisal
is signed by a qualified appraiser, who, to the Mortgage Loan
Seller's knowledge, had no interest, direct or indirect, in
the Mortgaged Property or in any loan made on the security
thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the
appraisal and appraiser both satisfy the requirements of
Title XI of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 and the regulations promulgated
thereunder, all in effect on the date the Mortgage Loan was
originated;
(xxviii) Encroachments. None of the material
improvements which were included for the purposes of
determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan
lies outside of the boundaries and building restriction lines
of such property (except for (i) de minimis encroachments or
encroachments for which the related title insurance policy
provides affirmative insurance or (ii) Mortgaged Properties
which are legal non-conforming uses), and no improvements on
adjoining properties materially encroach upon such Mortgaged
Property, or the requisite
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title insurance has been obtained with respect to the
foregoing; and either (x) the title insurance policy obtained
for each related Mortgaged Property contains no exclusion for
lack of access or affirmatively insures a right of access to
a public or (y) to the Mortgage Loan Seller's knowledge,
based on the due diligence consistent with the practice of
institutional lenders generally for properties of the same
type as the related Mortgaged Property (including the review
of a survey), each related Mortgaged property has a right of
access to a public road;
(xxix) Compliance with Law. As of the date of
origination of such Mortgage Loan, and or to the Mortgage
Loan Seller's knowledge, as of the Closing Date, (A) each
Mortgaged Property was in material compliance with all
applicable laws, zoning ordinances (including legal
non-conforming uses), rules, covenants and restrictions
affecting the construction, occupancy, use and operation of
such Mortgaged Property, and (B) all material inspections,
licenses and certificates, including certificates of
occupancy, required by law, ordinance or regulation to be
made or issued with regard to the Mortgaged Property were
issued or made and were in full force and effect, or, in the
case of certificates of occupancy, an opinion of counsel or a
letter from an engineer or architect, or a letter from the
appropriate municipal authority was delivered which provides
that (i) all certificates of occupancy have been issued, or
(ii) no certificates of occupancy are required, or (iii)
there are no violations of existing building codes;
(xxx) Single-Purpose Borrower. Except with respect
to Mortgage Loan Nos. 11839, 12252, 16771 and 16814, the
related Mortgagor is an entity which has represented in
connection with the origination of the Mortgage Loan, or
whose organizational documents provide, that so long as the
Mortgage Loan is outstanding it will be a single-purpose
entity. (For this purpose, "single-purpose entity" shall mean
a person, other than an individual, which does not engage in
any business unrelated to the related Mortgaged Property and
its financing, does not have any assets other than those
related to its interest in such Mortgaged Property or its
financing, or any indebtedness other than as permitted by the
related Mortgage or the other documents in the Mortgage Loan
File, has its own books and records separate and apart from
any other person, and holds itself out as being a legal
entity, separate and apart from any other person);
(xxxi) Underwriting Standards. Each Mortgage Loan
complied, in all material respects, with all of the terms,
conditions and requirements of the Mortgage Loan Seller's
underwriting standards in effect at the time of the
origination or acquisition of such Mortgage Loan, which are
described in the prospectus supplement;
(xxxii) No Insolvency. To the Mortgage Loan Seller's
knowledge, no Mortgagor is a debtor in any state or federal
bankruptcy or insolvency proceeding;
(xxxiii) Interests in Mortgaged Property. Such
Mortgage Loan was originated or acquired by the Mortgage Loan
Seller for sale or securitization. The
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interest of the related Mortgagor in the related Mortgaged
Property consists of a fee simple and/or leasehold estate in
real property;
(xxxiv) No Defense to Payment. There is no right of
rescission, offset, abatement, diminution, defense or
counterclaim to the Mortgage Loan (including the defense of
usury), nor will the operation of any of the terms of the
Mortgage Note or the Mortgage, or the exercise of any rights
thereunder, render the Mortgage Note or the Mortgage
unenforceable (excluding provisions relating to default
interest, yield maintenance charges or prepayment premiums),
or subject to any right of rescission, offset, abatement,
diminution, defense or counterclaim (including the defense of
usury or the violation of any applicable disclosure or
consumer credit laws), except in any such case as enforcement
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of
creditors' rights generally or by general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and no such
right of rescission, offset, abatement, diminution, defense
or counterclaim has been asserted with respect thereto;
(xxxv) Mortgages Secured by Deeds of Trust. In the
case of any Mortgage which is a deed of trust, a trustee,
duly qualified under applicable law to serve as such, has
been properly designated and currently so serves and is named
in the deed of trust or has been substituted in accordance
with applicable law, and no fees or expenses are, or will
become, payable to the trustee under the deed of trust,
except in connection with a trustee's sale after default by
the Mortgagor or in connection with the release of the
Mortgaged Property or related security for the Mortgage Loan
following the payment of the Mortgage Loan in full;
(xxxvi) Flood Hazard. The improvements located on
the related Mortgaged Property are either not located in a
federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains,
flood insurance with respect to such improvements, in an
amount equal to the lesser of (a) the outstanding principal
amount of the related Mortgage Loan or (b) the amount
available under the National Flood Insurance Act;
(xxxvii) Leasehold Interests. If the Mortgaged
Property is subject to any leases, the Mortgagor (or in the
case of multiple Mortgagors, one of the parties constituting
the Mortgagor) is the owner and holder of the landlord's
interest under any leases (other than "ground leases") and
the related Mortgage or Assignment of Leases provides for the
appointment of a receiver for rents or allows the mortgagee
to enter into possession to collect rent or provides for
rents to be paid directly to mortgagee in the event of a
default;
(xxxviii) Collateral. Each Mortgage Note is not
secured by any collateral except the lien of the related
Mortgage, the related Assignment of Leases (if any) and any
related security agreement;
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(xxxix) Cross-Collateralization. Such Mortgage Loan,
if cross-collateralized, is cross-collateralized only with
one or more other Mortgage Loans being transferred to the
Purchaser;
(xl) Origination. The origination (or acquisition,
as the case may be), servicing and collection practices used
by the Mortgage Loan Seller with respect to the Mortgage Loan
have complied in all material respects with all requirements
of relevant federal, state and local law, rules and
regulations (including, without limitation, usury,
truth-in-lending, consumer credit protection, equal credit
opportunity and disclosure) and are consistent with the
servicing standard set forth in the Pooling and Servicing
Agreement;
(xli) No Advance of Funds from Person other than
Mortgagor. To the knowledge of the Mortgage Loan Seller, no
advance of funds has been made after the Cut-Off Date,
directly or indirectly, by any holder of such Mortgage Loan,
nor have any funds been received from any person other than
the related Mortgagor, for or on account of payments due on
the related Mortgage Note or the related Mortgage;
(xlii) UCC Financing Statements. (a) UCC Financing
Statements covering all furniture, fixtures, equipment and
other personal property owned by a Mortgagor and located on
the related Mortgaged Property (i) which are collateral under
the related Mortgage or under a security agreement, chattel
mortgage or equivalent document executed and delivered in
connection with such Mortgage Loan, and (ii) in which a
security interest can be perfected by the filing of UCC
Financing Statements under applicable law have been filed
and/or recorded (or have been sent for filing or recording)
in all UCC filing offices necessary to perfect a valid
security interest in such furniture, fixtures, equipment and
other personal property, and the Mortgages, security
agreements, chattel mortgages or equivalent documents related
to and delivered in connection with the related Mortgage
Loans establish and create a valid and enforceable security
interest on such furniture, fixtures, equipment and other
personal property; and (b) with respect to each Mortgaged
Property improved with a hotel, such UCC Financing
Statements, together with the Mortgages, security agreements,
chattel mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan,
establish and create a valid and enforceable security
interest in the furniture, fixtures and equipment located
thereon and owned by the related Mortgagor, to the extent a
security interest in such furniture, fixtures and equipment
can be perfected by the filing of UCC Financing Statements
under applicable law; except, in each case, as enforceability
may be limited by bankruptcy or other laws affecting
creditor's rights generally or by the application of the
rules of equity, and except that certain provisions of the
Mortgages, security agreements, chattel mortgages or
equivalent documents related to and delivered in connection
with the related Mortgage Loans are or may be unenforceable
in whole or in part under applicable law, but such
unenforceability of such provisions does not render such
documents inadequate for the practical realization of the
rights and benefits intended to be afforded thereby;
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(xliii) Other Indebtedness of Mortgagor. Except as
set forth below, to the best of the Mortgage Loan Seller's
knowledge, the Mortgagor has no indebtedness for borrowed
money and, except as provided below, the Mortgage Loan
Documents do not provide or permit, without the consent of
the Mortgagee, any indebtedness to encumber the Mortgaged
Property, other than the Mortgage Loan and trade debt
incurred in the ordinary course of business.
(A) The Borrowers with respect to Mortgage
Loans No. 16814, 11839, 12252 and 16771 on the
Mortgage Loan Schedule are entities that are not
single purpose entities and whose related loan
documents do not prevent them from incurring
additional debt on other properties, but do prevent
them from occurring additional debt secured by the
Mortgaged Properties without the consent of the
lender.
(B) The Mortgaged Properties securing
Mortgage Loans No. 11696 and 16393 on the Mortgage
Loan Schedule secure certain additional debt of the
Borrower on a pari passu basis with such Mortgage
Loans.
(C) The Borrowers with respect to Mortgage
Loans No. 17702 and 17820 on the Mortgage Loan
Schedule have incurred additional debt that is not
included in the Trust Fund and that is secured by
the related Mortgaged Property.
(D) The Borrowers with respect to Mortgage
Loans No. 9100, 9529, 9691 and 17820 on the Mortgage
Loan Schedule (or affiliates thereof) have incurred
additional debt that is not included in the Trust
Fund and that is not secured by the related
Mortgaged Property.
(xliv) Ground Leases. No Mortgage Loan is secured in
whole or in part by the interest of a Borrower as lessee
under a ground lease underlying the related Mortgaged
Property unless (i) the Mortgage Loan is also secured by a
first priority lien (subject to the matters described in
clause (viii) above) on the related fee interest, (ii) the
ground lease represents an non-essential portion of the
Mortgaged Property, or (iii) with respect to Mortgage Loan
Nos. 8939, 9691, 12147, 16496 and 17918 the ground lease
satisfies the following criteria:
(A) The ground lease or a memorandum
regarding it has been duly recorded. The ground
lease permits the interest of the lessee to be
encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property
by such lessee, its successors or assigns in a
manner that would adversely affect the security
provided by the related Mortgage. There has been no
material change in the terms of such ground lease
since its recordation, except by written
instruments, all of which are included in the
related Mortgage File;
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(B) The lessor under such ground lease has
agreed in a writing included in the related Mortgage
File that the ground lease may not be amended,
modified, canceled or terminated without the prior
written consent of the mortgagee and that any such
action without such consent is not binding on the
mortgagee, its successors or assigns, except if an
event of default occurs under the ground lease and
notice is provided to the mortgagee and such default
is curable by the mortgagee, but remains uncured
beyond the applicable cure period;
(C) The ground lease has an original term
(or an original term plus one or more optional
renewal terms, which, under all circumstances, may
be exercised, and will be enforceable, by the
related mortgagor or the mortgagee of the related
Mortgaged Property upon foreclosure, assignment in
lieu-of-foreclosure or otherwise) that extends not
less than 10 years beyond the stated maturity of the
related Mortgage Loan;
(D) The ground lessee's interest in the
ground lease is not subject to any liens or
encumbrances superior to, or of equal priority with,
the Mortgage, subject to the matters described in
clause (viii) above, and such ground lease does not
provide that it shall be subordinate, and is not
subordinate to (subject to the matters described in
clause (viii) above) any mortgage or other lien or
encumbrance upon the related fee interest;
(E) The ground lease is assignable to the
mortgagee under the leasehold estate without the
consent of the lessor thereunder or such consent has
been obtained;
(F) The ground lease is in full force and
effect and no default has occurred, nor is there any
existing condition which, but for the passage of
time or giving of notice, would result in a default
under the terms of the ground lease;
(G) The ground lease or ancillary agreement
between the lessor and the lessee or separate
agreement between the lessor and the mortgagee
requires the lessor to give notice of any default by
the lessee to the mortgagee. The ground lease or
ancillary agreement further provides that no notice
given is effective against the mortgagee unless a
copy has been given to the mortgagee in a manner
described in the ground lease or such ancillary or
other agreement;
(H) A mortgagee is permitted a reasonable
opportunity (including, where necessary, sufficient
time to gain possession of the interest of the
lessee under the ground lease through legal
proceedings, or to take other action so long as the
mortgagee is proceeding diligently) to cure any
default under the ground lease which is curable
after the receipt of notice of any default before
the lessor may terminate the ground lease. All
rights of the mortgagor under the ground lease and
the related
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Mortgage (insofar as it relates to the ground lease)
may be exercised by or on behalf of the mortgagee;
(I) The ground lease does not impose any
restrictions on subletting that would be viewed as
commercially unreasonable by an institutional
investor;
(J) Under the terms of the ground lease,
and/or a separate agreement between the related
lessor and the mortgagee, and the related Mortgage;
any related insurance proceeds or condemnation award
(other than in respect of a total or substantially
total loss or taking) will be applied either to the
repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and
disburse such proceeds as repair or restoration
progresses, or to the payment of the outstanding
principal balance of the Mortgage Loan, together
with an accrued interest (except in cases where a
different allocation would not typically be viewed
as commercially unreasonable by an institutional
investor, taking into account the relative duration
of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgaged
Property to the outstanding principal balance of
such Mortgage Loan); and
(K) Except in the case of Mortgage Loan No.
17918, as to which a condemnation insurance policy
is in place, the proceeds of which are payable to
the Lender in reduction of the debt secured by the
related mortgage, under the terms of the ground
lease, and/or a separate agreement between the
related lessor and the related mortgagee, any
related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or
taking of the related Mortgaged Property will be
applied first to the payment of the outstanding
principal balance of the Mortgage Loan, together
with any accrued interest if such proceeds have not
been used to restore the premises (except in cases
where a different allocation would not typically be
viewed as commercially unreasonable by any
institutional investor, taking into account the
relative duration of the ground lease and the
related Mortgage and the ratio of the market value
of the related Mortgaged Property to the outstanding
principal balance of such Mortgage Loan). Until the
principal balance and accrued interest are paid in
full, neither the lessee nor the lessor under the
ground lease will have the option to terminate or
modify the ground lease without prior written
consent of the mortgagee as a result of any casualty
or partial condemnation, except to provide for an
abatement of rent; and
(L) The terms of the related ground lease
and/or a separate agreement between the lessor and
the mortgagee require the related lessor to enter
into a new lease upon termination of the ground
lease due to the default of the lessee thereunder,
including rejection of the ground lease in a
bankruptcy proceeding;
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(xlv) Concentration. Except with respect to Mortgage
Loan Nos. 5193, 8939, 11969 and 17187, which are Mortgage
Loans made to affiliated borrowers, and Mortgage Loan Nos.
16462, 16464 and 16393, the Mortgage Loans, together with all
other Mortgage Loans to the same Mortgagor and/or affiliates
of such Mortgagor, do not constitute more than 5% of the
aggregate outstanding principal balance of all Mortgage Loans
transferred by the Mortgage Loan Seller to the Purchaser. For
purposes of the foregoing, an "affiliate" of, or person or
entity "affiliated with", a specified person or entity, is a
person or entity that directly, or indirectly through one or
more intermediaries, controls, is controlled by, or is under
common control with, the specified person or entity;
(xlvi) No Proceedings. As of the date of origination
and, to the best of the Mortgage Loan Seller's knowledge, as
of the Closing Date, there was no pending, or, to the
knowledge of the Mortgage Loan Seller threatened action,
suit, proceeding, arbitration or governmental investigation
against any Mortgagor or the related Mortgaged Property an
adverse outcome of which would materially affect either such
Mortgagor's performance under the related Mortgage Loan
documents or the holders of the Certificates.
(xlvii) 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,
either (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 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 and (B) 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 (C) the related Mortgagor pay all
of the reasonable costs and expenses incurred in connection
with the exercise of such options; and
(xlviii) Annual Reports. The related Mortgage Loan
Documents require the related Mortgagor to furnish to the
mortgagee at least annually an operating statement and
(except in the case of the mortgagor-occupied or single
tenant Mortgaged Property or hotels) a rent roll with respect
to the related Mortgaged Property or, in the case of
mortgagor-occupied Mortgaged Property, a financial statement
with respect to the related Mortgagor.
(xlix) 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.
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(b) The Mortgage Loan Seller hereby represents and warrants
with respect to itself that, as of the Closing Date that:
(i) The Mortgage Loan Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and the Mortgage Loan Seller has taken all necessary
corporate action to authorize the execution, delivery and performance
of this Agreement by it, and has the power and authority to execute,
deliver and perform this Agreement and all the transactions
contemplated hereby, including, but not limited to, the power and
authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery
of this Agreement by each other party hereto, this Agreement and all
of the obligations of the Mortgage Loan Seller hereunder are the
legal, valid and binding obligations of the Mortgage Loan Seller,
enforceable against the Mortgage Loan Seller in accordance with the
terms of this Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Mortgage Loan Seller
will not conflict with any provisions of any law or regulations to
which the Mortgage Loan Seller is subject, or conflict with, result in
a breach of or constitute a default under any of the terms, conditions
or provisions of the certificate of incorporation or the by-laws of
the Mortgage Loan Seller or any indenture, agreement or instrument to
which the Mortgage Loan Seller is a party or by which it is bound, or
any order or decree applicable to the Mortgage Loan Seller, or result
in the creation or imposition of any lien on any of the Mortgage Loan
Seller's assets or property, which would materially and adversely
affect the ability of the Mortgage Loan Seller to carry out the
transactions contemplated by this Agreement; the Mortgage Loan Seller
has obtained any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Mortgage Loan Seller of this
Agreement;
(iv) There is no action, suit or proceeding pending or, to
the Mortgage Loan Seller's knowledge, threatened against the Mortgage
Loan Seller in any court or by or before any other governmental agency
or instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Mortgage Loan
Seller to carry out the transactions contemplated by this Agreement.
3.3. Remedies for Breach of Certain Representations and
Warranties. (a) It is understood and agreed that the representations and
warranties set forth herein shall survive the sale of the Mortgage Loans to the
Purchaser, notwithstanding any restrictive or qualified endorsement on the
Mortgage Notes and notwithstanding subsequent termination of this Agreement or
the Pooling and Servicing Agreement, and shall inure to the benefit of the
Purchaser, and the Trustee as the transferee of the Purchaser, notwithstanding
(1) any restrictive or qualified endorsement on any Note, Assignment of
Mortgage or Reassignment of Assignment
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of Leases, Rents and Profits (2) any termination of this Agreement or (3) the
examination by any Person of, or failure by any Person to examine, any Mortgage
File.
(b) Upon the receipt of notice or discovery by the Mortgage
Loan Seller, the Purchaser or the Trustee that (i) a document required to be
delivered, recorded or filed pursuant to Section 2.4 of this Agreement in
connection with any Mortgage Loan has not been executed or received, has not
been recorded or filed (if required), appears not to be what it purports to be
or has been torn, mutilated or otherwise defaced (such Mortgage Loan, a
"Defective Document Mortgage Loan") or (ii) a breach of any of the foregoing
representations and warranties (other than the representations and warranties
set forth in Sections 3.1(a)) or a default in the performance of any of the
covenants or other obligations of the Mortgage Loan Seller under this Agreement
has occurred (a "Breach") which, in the case of either clause (i) or (ii),
materially and adversely affects the value of any Mortgage Loan or the
interests of the Certificateholders therein, the party discovering (x) that a
Mortgage Loan is a Defective Document Mortgage Loan or (y) the existence of a
Breach (any such Mortgage Loan as described in the preceding clause (x) or so
affected by a Breach as described in clause (y), a "Defective Mortgage Loan")
shall give prompt written notice thereof to the other parties. Within 90 days
of the earlier of its discovery or its receipt of notice of any such Defective
Mortgage Loan, the Mortgage Loan Seller shall at its option either (i) promptly
cure such defect or Breach in all material respects or (ii) repurchase the
Defective Mortgage Loan or Loans at the Repurchase Price for such Mortgage Loan
or Loans. The payment of the Repurchase Price with respect to any Mortgage
Loans repurchased by the Mortgage Loan Seller shall be paid in accordance with
the directions of the owners of such Mortgage Loans. It is understood and
agreed that the obligations of the Mortgage Loan Seller set forth in this
Section 3.3(b) to cure or repurchase a Defective Mortgage Loan constitute the
sole remedies available to the Purchaser and its successors and assigns
respecting a breach of the representations and warranties of the Mortgage Loan
Seller set forth in Section 3.2(a). Upon any such repurchase of a Mortgage Loan
by the Mortgage Loan Seller, the Purchaser shall execute and deliver such
instruments of transfer or assignment presented to it by the Mortgage Loan
Seller, in each case without recourse, as shall be necessary to vest in the
Mortgage Loan Seller the legal and beneficial ownership of such Mortgage Loan
(including any property acquired in respect thereof or proceeds of any
insurance policy with respect thereto), and shall deliver the related Mortgage
File to the Mortgage Loan Seller or its designee after receipt of the related
Repurchase Price.
(c) Except as expressly set forth in Section 3.3(b), no
provision of this Agreement shall be interpreted as limiting (or otherwise be
deemed to limit) the Purchaser's right to pursue any remedies it may have under
this Agreement, in equity or at law, in connection with any breach by the
Mortgage Loan Seller of any term hereof.
(d) The Mortgage Loan Seller hereby acknowledges the
assignment by the Purchaser to the Trustee, as trustee under the Pooling and
Servicing Agreement, for the benefit of the Certificateholders, of the
representations and warranties contained herein and of the obligation of the
Mortgage Loan Seller to cure or repurchase Defective Mortgage Loans pursuant to
this Section. The Trustee or its designee may enforce such obligation as
provided in Section 5.3 hereof.
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3.4. Opinions of Counsel. The Mortgage Loan Seller hereby
covenants to the Purchaser to, simultaneously with the execution hereof,
deliver or cause to be delivered to the Purchaser (a) opinions of counsel as to
various corporate matters in form satisfactory to the Purchaser (it being
agreed that the opinion shall expressly provide that the Trustee and the Fiscal
Agent shall be entitled to rely on such opinions); and (b) opinions of counsel
for the Mortgage Loan Seller, in form acceptable to the Purchaser, its counsel,
and each Rating Agency, as to such matters as shall be required for the
assignment of the ratings of the Certificates required by the Placement Agency
Agreement and under the Underwriting Agreement (it being agreed that such
opinions or appropriate reliance letters shall expressly provide that the
Trustee and the Fiscal Agent shall be entitled to rely on such opinions).
3.5. Placement; Underwriting. The Mortgage Loan Seller hereby
agrees to furnish any and all information, documents, certificates, letters or
opinions with respect to the Mortgage Loans reasonably requested by the
Purchaser in order to perform any of its obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to the Placement
Agency Agreement and the Underwriting Agreement at or prior to the Closing
Date.
3.6. Further Assurances; Securitization Cooperation. The
Mortgage Loan Seller agrees to execute and deliver such instruments and take
such actions as the Purchaser may, from time to time, reasonably request in
order to effectuate the purpose and to carry out the terms of this Agreement
and to effectuate the securitization of the Mortgage Loan pursuant to the
Pooling and Servicing Agreement and to carry out its obligations under the
Pooling and Servicing Agreement.
[End of Article III]
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ARTICLE IV.
CLOSING CONDITIONS
4.1. Purchaser's Conditions to Closing. The obligations of
the Purchaser under this Agreement shall be subject to the satisfaction, on the
Closing Date, or such other date specified herein, of the following conditions:
(a) The obligations of the Mortgage Loan Seller required to
be performed by it at or prior to the Closing Date pursuant to the terms of
this Agreement shall have been duly performed and complied with and all of the
representations and warranties of the Mortgage Loan Seller under this Agreement
shall be true and correct as of the date hereof and as of the Closing Date, and
no event shall have occurred which, with notice or the passage of time, or
both, would constitute a default under this Agreement, and the Purchaser shall
have received a certificate to that effect signed by an authorized officer of
the Mortgage Loan Seller.
(b) The Purchaser or its designee shall have received all of
the following closing documents, in such forms as are agreed upon and
acceptable to the Purchaser and in form and substance satisfactory to the
Purchaser, the Underwriter and their respective counsel, duly executed by all
signatories other than the Purchaser as required pursuant to the respective
terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage
File, which Mortgage File shall be delivered to and held by the
Trustee on behalf of the Purchaser;
(ii) the final Mortgage Loan Schedule attached hereto as
Exhibit B;
(iii) an officer's certificate from the Mortgage Loan Seller
dated as of the Closing Date, in the form attached hereto as Exhibit
B;
(iv) an opinion of Joseph T. Jurkowski, vice president and
counsel to the Mortgage Loan Seller, substantially in the form
attached hereto as Exhibit C;
(v) the Pooling and Servicing Agreement and all documents
required to be delivered pursuant thereto;
(vi) such other documents, certificates and opinions as may
be necessary to secure for the Certificates the following ratings from
Moody's Investors Services, Inc. ("Moody's") and Standard & Poor's
Ratings Services, a division of the McGraw-Hill Companies, Inc.
("S&P"): for the Class A-1 Certificates, a "Aaa" rating from Moody's
and a "AAA" rating from S&P; for the Class A-2 Certificates, a "Aaa"
rating from Moody's and a "AAA" rating from S&P; for the Class B
Certificates, a "Aa2" rating from Moody's and a "AA" rating from S&P;
for the Class C Certificates, a "A2" rating from Moody's and a "A"
rating from S&P; for the Class D Certificates, a "Baa2" rating from
Moody's; for the Class E Certificates a "Baa3" rating from Moody's;
for the Class F Certificates, a "BB+" rating from S&P; for the Class G
Certificates, a "Ba2" rating from Moody's; for the Class H
Certificates a "Ba3" rating from Moody's; for the Class I
Certificates, a "B2" rating from Moody's; for the Class J Certificates
a "B3" rating from
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Moody's; and for the Class X Certificates, a "Aaa" rating from Moody's
and a "AAAr" rating from S&P.
(vii) a letter from the independent accounting firm Deloitte
& Touche in form satisfactory to the Purchaser, relating to certain
information regarding the Mortgage Loans as set forth in the
Prospectus and certain information regarding the Certificates as set
forth in the Prospectus Supplement.
4.2. Mortgage Loan Seller's Condition to Closing. The
obligations of the Mortgage Loan Seller under this Agreement shall be subject
to the satisfaction, on the Closing Date, to the Purchaser's compliance with
all of the Purchaser's obligations under this Agreement.
[End of Article IV]
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ARTICLE V.
MISCELLANEOUS
5.1. Costs. The Purchaser shall pay all expenses incidental
to the performance of its obligations under this Agreement, including without
limitation (a) any recording fees or fees for title policy endorsements and
continuations, (b) the expenses of preparing, printing and reproducing (I) the
Memorandum with respect to the Privately Placed Certificates and (II) the
Prospectus Supplement with respect to the Publicly Offered Certificates, the
Purchase Agreement and the Pooling and Servicing Agreement and the
Certificates, (c) the cost of delivering the Privately Placed Certificates to
the office of the Placement Agent or the Purchaser, as applicable, insured to
the satisfaction of the Placement Agent or the Purchaser, as applicable and (d)
the cost of delivering the Publicly Offered Certificates to the office of the
Underwriter.
5.2. Notices. All communications hereunder shall be in
writing and effective only upon receipt and, if sent to the Purchaser, will be
mailed, delivered or transmitted by facsimile and confirmed to it at 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, if sent to the Mortgage Loan Seller, will
be mailed, delivered or transmitted by facsimile and confirmed to it at Bear,
Stearns Funding, 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.
5.3. Trustee Beneficiary. The representations, warranties and
agreements made by the Mortgage Loan Seller in this Agreement are made for the
benefit of, and may be enforced by or on behalf of, the Trustee and the Holders
of Certificates to the same extent that the Purchaser has rights against the
Mortgage Loan Seller under this Agreement in respect of representations,
warranties and agreements made by the Mortgage Loan Seller herein, and all such
representations and warranties shall survive delivery of the Mortgage Files to
the Trustee until the termination of the Pooling and Servicing Agreement.
5.4. Successors and Assigns. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder, other than as provided in Section 5.3 hereof.
5.5. Governing Law. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of New York
(without regard to conflicts of laws principles), and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
5.6. 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) 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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(c) This Agreement may be executed in any number of
counterparts, each of which shall, for all purposes, be deemed to be an
original and all of which shall together constitute but one and the same
instrument.
5.7. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then, to the extent permitted by applicable law, 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.
5.8. Confirmation of Intent. It is the express intent of the
parties hereto that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Mortgage Loan Seller of all the
Mortgage Loan Seller's right, title and interest in and to the Mortgage Loans.
It is, further, not the intention of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Mortgage Loan Seller to secure a debt or
other obligation of the Mortgage Loan Seller. However, in the event that,
notwithstanding the intent of the parties, the Mortgage Loans are held to
continue to be property of the Mortgage Loan Seller then (a) this Agreement
shall also be deemed to be a security agreement under applicable law; (b) the
transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Mortgage Loan Seller to the Purchaser of a first priority security
interest in all of the Mortgage Loan Seller's right, title and interest in and
to the Mortgage Loans and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property; (c) the possession by the Purchaser or any successor thereto
of the related Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-305 of the New York Uniform Commercial Code and
the Uniform Commercial Code of any other applicable jurisdiction; and (d)
notifications to Persons holding such property, and acknowledgments, receipts
or confirmations from Persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser or any
successor thereto for the purpose of perfecting such security interest under
applicable law. Any assignment of the interest of the Purchaser pursuant to any
provision hereof shall also be deemed to be an assignment of any security
interest created hereby.
[Signatures Appear on Next Page]
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IN WITNESS WHEREOF, the Purchaser, the Mortgage Loan Seller
have caused this Agreement to be duly executed by their respective officers as
of the day and year first above written.
BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES INC.
By:
--------------------------------
Name: James G. Reichek
Title: Executive Vice President
BEAR, STEARNS FUNDING, INC.
By:
--------------------------------
Name: J. Christopher Hoeffel
Title: Vice President
S-1
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EXHIBIT A
Mortgage Loan Schedule
----------------------
A-1
<PAGE>
EXHIBIT B
OFFICER'S CERTIFICATE OF BEAR, STEARNS FUNDING, INC.
In connection with the sale, assignment and transfer of
certain mortgage loans (collectively, the "Mortgage Loans") by Bear, Stearns
Funding, Inc. (the "Mortgage Loan Seller") to Bear Stearns Commercial Mortgage
Securities Inc. (the "Purchaser") pursuant to the Mortgage Loan Sale Agreement
dated as of February 1, 1999 (the "Mortgage Loan Sale Agreement") between the
Mortgage Loan Seller and the Purchaser, the Mortgage Loan Seller hereby
certifies that:
(a) The representations and warranties of the Mortgage Loan Seller
contained in the Mortgage Loan Sale Agreement are true and correct in
all material respects at and as of the date hereof with the same
effect as if made on the date hereof.
(b) The Mortgage Loan Seller has complied with the terms of the
Mortgage Loan Sale Agreement and satisfied all the conditions on its
part required under the Mortgage Loan Sale Agreement to be performed
or satisfied at a prior date hereof.
In WITNESS WHEREOF, the Mortgage Loan Seller has caused this
Certificate to be duly executed and delivered as of the 1st day of February
1999.
BEAR, STEARNS FUNDING, INC.
By:
--------------------------
Name:
Title:
B-1
<PAGE>
EXHIBIT C
[Letterhead of Bear, Stearns Funding, Inc.]
As of February 1, 1999
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase and Sale Agreement dated as of February 1, 1999
between Bear Stearns Commercial Mortgage Securities Inc. and Bear,
Stearns Funding, Inc. (the "Agreement")
Ladies and Gentlemen:
I am the vice president and counsel to Bear, Stearns Funding,
Inc., a Delaware corporation (the "Company"), and, in such capacity, I am
familiar with the affairs of the Company.
I am providing this opinion in connection with the sale by
the Company to Bear Stearns Commercial Mortgage Securities Inc. of various
commercial and multi-family mortgage loans. This opinion is furnished to you
pursuant to Section 4.1(b)(iv) of the Mortgage Loan Purchase and Sale Agreement
(the "Agreement"). Terms used herein, but not otherwise defined herein, shall
have the meanings ascribed to them in the Agreement.
I have examined copies of the Agreement, the Certificate of
Incorporation of the Company and the By-Laws of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity
to original documents of copies of documents supplied to me. As to certain
matters of fact relevant to the opinions hereinafter compressed, I have relied
solely upon statements and certificates of the officers of the Company and
others. I have also assumed (other than with respect to the Company) that all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties had the power and legal
right to execute and deliver all such documents, agreements and instruments,
and that such documents, agreements and instruments are valid, binding and
enforceable obligations of such parties.
I am admitted to the Bar of the State of New York, and I
express no opinion as to any laws other than the laws of the United States, the
State of New York and the General Corporation Law of the State of Delaware.
Based on the foregoing, I am of the opinion that:
C-1
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1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
is duly qualified as a foreign corporation in good standing in the
State of New York, with full corporate power and authority to own its
assets and conduct its business, to execute, deliver and perform the
Agreement and all the transactions contemplated thereby, including but
not limited to, the power and authority to sell, assign and retransfer
the Mortgage Loans in accordance with the Agreement and the Company
has taken all necessary action to authorize the execution, delivery
and performance of the Agreement by it, and the Agreement has been
duly authorized, executed and delivered by it.
2. The Agreement and all of the obligations of the Company
under the Agreement are valid, legal and binding obligations of the
Company enforceable against the Company in accordance with the terms
of the Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and
by public policy considerations, statutes or court decisions to the
effect that such public policy considerations statutes or court
decisions limit the enforceability of the provisions of the Agreement
relating to the rights to indemnity and contribution.
3. The execution and delivery of the Agreement by the Company
and the performance of its obligations under the Agreement will not
conflict with any provision of any law or regulation to which the
Company is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions
of any of the Company's organizational documents or, to my knowledge,
any agreement or instrument to which the Company is a party or by
which it is bound, or any order or decree applicable to the Company,
result in the creation or imposition of any lien on any of the
Company's assets or property, in each case which would materially and
adversely affect the ability of the Company to carry out the
transactions contemplated by the Agreement.
4. To my knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Company in
any court or by or before any other government agency or
instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Company to carry
out the transactions contemplated by the Agreement.
5. To my knowledge, the Company 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 governmental agency,
which default might have consequences that would materially and
adversely affect the condition (financial or other) or operations of
the Company or its properties or might have consequences that would
materially and adversely affect its performance under the Agreement.
6. To my knowledge, no consent, approval, authorization or
order of any court or governmental agency or body is required for the
execution, delivery and performance by the Company or compliance by
the Company with the Agreement or the
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consummation of the transactions contemplated by the Agreement, other
than those which have been obtained by the Company.
This opinion is furnished solely for the benefit of the
addressees hereof in connection with the transaction referred to herein. This
letter may not be relied upon, used, quoted, circulated or otherwise referred
to by any other person or for any other purpose without my prior written
approval. This opinion is being given as of February 1, 1999 and I express no
opinion as to events or conditions subsequent to such date.
Very truly yours,
Joseph T. Jurkowski, Jr.
C-3
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SCHEDULE A
Bear, Stearns Funding, Inc.
245 Park Avenue
New York, New York 10167
Bear Stearns Commercial Mortgage Securities Inc.
245 Park Avenue
New York, New York 10167
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Standard & Poor's Ratings Services
26 Broadway, 10th Floor
New York, New York 10004
Moody's Investor Services
99 Church Street, 10th Floor
New York, New York 10007
LaSalle National Bank
Analytics Department
3111 North Tustin Avenue, Suite 180
Orange, CA 92865
ABN Amro Bank N.V.
135 South LaSalle Street
Chicago, Illinois 60603
C-4
