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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) November 24, 1998
Structured Asset Securities Corporation
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 33-49129 74-2440858
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
200 Vesey Street, New York, New York 10285
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (212) 526-7000
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
On November 24, 1998, a single series of certificates, entitled LB
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
1998-C4 (the "Certificates"), was issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of November 1, 1998,
entered into by and among Structured Asset Securities Corporation (the
"Registrant") as depositor, First Union National Bank, as master servicer,
Lennar Partners Inc., as special servicer, LaSalle National Bank, as trustee,
and ABN AMRO Bank N.V., as fiscal agent. The Pooling and Servicing Agreement is
attached hereto as Exhibit 4.1. Certain classes of the Certificates, designated
Class A-1-a, Class A-1-b, Class A-2, Class B, Class C, Class D, Class E and
Class X (collectively, the "Underwritten Certificates"), were registered under
the Registrant's registration statement on Form S-3 (no. 333-49129) and sold to
Lehman Brothers Inc. (the "Underwriter") pursuant to an underwriting agreement
(the "Underwriting Agreement"), dated as of November 17, 1998, entered into by
and between the Registrant and the Underwriter. The Underwriting Agreement is
attached hereto as Exhibit 1.1.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired:
Not applicable.
(b) Pro forma financial information:
Not applicable.
(c) Exhibits:
Exhibit No. Description
1.1 Underwriting Agreement, dated as of November 17, 1998, between
Structured Asset Securities Corporation, as seller, and Lehman
Brothers Inc., as underwriter.
4.1 Pooling and Servicing Agreement, dated as of November 1, 1998,
among Structured Asset Securities Corporation, as depositor, First
Union National Bank, as master servicer, Lennar Partners, Inc., as
special servicer, LaSalle National Bank, as trustee, and ABN AMRO
Bank N.V. as fiscal agent.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: December 9, 1998
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ James Blakemore
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Name: James Blakemore
Title: Vice President
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EXHIBIT INDEX
The following exhibits are filed herewith:
Exhibit No. Page No.
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1.1 Underwriting Agreement, dated as of November
17, 1998, between Structured Asset Securities
Corporation, as seller, and Lehman Brothers
Inc., as underwriter.
4.1 Pooling and Servicing Agreement, dated as of
November 1, 1998, among Structured Asset
Securities Corporation, as depositor, First
Union National Bank, as master servicer, Lennar
Partners, Inc., as special servicer, LaSalle
National Bank, as trustee, and ABN AMRO Bank
N.V. as fiscal agent.
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STRUCTURED ASSET SECURITIES CORPORATION
UNDERWRITING AGREEMENT
As of November 17, 1998
Lehman Brothers, Inc.
Three World Financial Center
New York, New York 10285
Structured Asset Securities Corporation, a Delaware corporation (the
"Company"), proposes to cause the issuance of, and sell to Lehman Brothers Inc.
("LBI" or the "Underwriter"), the mortgage pass-through certificates that are
identified on Schedule I attached hereto (the "Certificates"). The Certificates
will evidence beneficial ownership interests in a trust fund (the "Trust Fund")
to be formed by the Company and consisting primarily of a segregated pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"). Certain of the Mortgage Loans will be acquired by Company from Lehman
Brothers Holdings Inc., doing business as Lehman Capital, a division of Lehman
Brothers Holdings Inc. ("Holdings"), pursuant to a mortgage loan purchase
agreement, dated as of the date hereof (the "Holdings Mortgage Loan Purchase
Agreement"), between Company and Holdings. The other Mortgage Loans will be
acquired by Company from LUBS Inc., ("LUBS"and, together with Holdings, the
"Mortgage Loan Sellers"), pursuant to a mortgage loan purchase agreement dated
as of the date hereof (the "LUBS Mortgage Loan Purchase Agreement"; and,
together with the Holdings Mortgage Loan Purchase Agreement, the "Mortgage Loan
Purchase Agreements"), between the Company and LUBS. The Certificates will be
issued under a Pooling and Servicing Agreement to be dated as of November 1,
1998 (the "Pooling and Servicing Agreement"), among the Company as depositor,
LaSalle National Bank as trustee (the "Trustee"), First Union National Bank as
master servicer (the "Master Servicer"), Lennar Partners, Inc. as special
servicer (the "Special Servicer") and ABN AMRO Bank, N.V. as fiscal agent (the
"Fiscal Agent"). The Certificates and the Mortgage Loans are described more
fully in the Prospectus (as defined below), which the Company has furnished to
the Underwriter. Capitalized terms used but not defined herein have the
respective meanings assigned thereto in the Prospectus.
The Certificates are part of a series of mortgage pass-through
certificates that evidence beneficial ownership interests in the Trust Fund and
are being issued pursuant to the Pooling and Servicing Agreement. The other
certificates of such series (the "Private Certificates") will be privately
placed through the Underwriter with a limited number of institutional investors
as described in the Private Placement Memorandum dated the date hereof that
relates to the Privately Offered Certificates (together with all exhibits and
annexes thereto, the "Memorandum").
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1. Representations and Warranties. The Company represents, warrants and
agrees that:
(a) A registration statement on Form S-3 (No. 333-49129) with respect to
the Certificates has been prepared by the Company and filed with the Securities
and Exchange Commission (the "Commission"), and complies as to form in all
material respects with the requirements of the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "1933 Act"), including Rule 415, and has become effective
under the Securities Act. As used in this Underwriting Agreement (this
"Agreement" or the "Underwriting Agreement"), (i) "Registration Statement" means
that registration statement and all exhibits thereto, as amended or supplemented
to the date of this Agreement; (ii) "Basic Prospectus" means the prospectus
included in the Registration Statement at the time it became effective, or as
subsequently filed with the Commission pursuant to paragraph (b) of Rule 424 of
the Securities Act; (iii) "Prospectus" means the Basic Prospectus, together with
the prospectus supplement specifically relating to the Certificates (the
"Prospectus Supplement"), as most recently filed with, or mailed for filing to,
the Commission pursuant to paragraph (b) of Rule 424 of the Securities Act; and
(iv) "Preliminary Prospectus" means any preliminary form of the Prospectus that
has heretofore been filed pursuant to paragraph (b) of Rule 424 of the
Securities Act. The aggregate principal amount of the Certificates does not
exceed the remaining amount of mortgage-backed securities that may be registered
under the Registration Statement as of the date hereof.
(b) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and on the date of this Agreement,
complied, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will comply, as to form in all material respects with the
requirements of the 1933 Act; and the Registration Statement and the Prospectus
do not, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will not, contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company makes no
representation or warranty as to (i) information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company by the Underwriter
specifically for inclusion therein or (ii) any information in any Computational
Materials and ABS Term Sheets (each as defined in Section 4) incorporated into
the Registration Statement by the filing thereof pursuant to Section 5(j).
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease or operate its properties and to
conduct its business as now conducted by it and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement; and
the Company is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business.
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(d) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of the
date on which, prior to the Closing Date, any amendment to the Registration
Statement becomes effective, as of the date on which any supplement to the
Prospectus Supplement is filed with the Commission, and as of the Closing Date,
there has not and will not have been (i) any request by the Commission for any
further amendment to the Registration Statement or the Prospectus or for any
additional information, (ii) any issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threat of any proceeding for that purpose or (iii) any notification with respect
to the suspension of the qualification of the Certificates for sale in any
jurisdiction or any initiation or threat of any proceeding for such purpose.
(e) This Agreement has been duly authorized, executed and delivered by the
Company, and the Pooling and Servicing Agreement, when executed and delivered as
contemplated hereby and thereby, will have been duly authorized, executed and
delivered by the Company; and this Agreement constitutes, and the Pooling and
Servicing Agreement, when so executed and delivered will constitute, legal,
valid and binding agreements of the Company, enforceable against the Company in
accordance with their respective terms, except as enforceability may be limited
by (i) bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of the rights of creditors generally,
(ii) general principles of equity, whether enforcement is sought in a proceeding
in equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement or the Pooling and Servicing
Agreement that purport to provide indemnification from securities law
liabilities.
(f) As of the Closing Date, the Certificates and the Pooling and Servicing
Agreement will conform in all material respects to the respective descriptions
thereof contained in the Prospectus. As of the Closing Date, the Certificates
will be duly and validly authorized and, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement to you against payment therefor as provided herein, will be duly and
validly issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement.
(g) At the Closing Date, each of the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(h) The Company is not in violation of its certificate of incorporation or
by-laws or in default under any agreement, indenture or instrument the effect of
which violation or default would be material to the Company or which violation
or default would have a material adverse affect on the performance of its
obligations under this Agreement or the Pooling and Servicing Agreement. Neither
the issuance and sale of the Certificates, nor the execution and delivery by the
Company of this Agreement or the Pooling and Servicing Agreement, nor the
consummation by the Company of any of the transactions herein or therein
contemplated, nor compliance by the Company with the provisions hereof or
thereof, does or will conflict with or result in a breach of any term or
provision of the certificate of incorporation or by-laws of the Company or
conflict with, result in a breach, violation or acceleration of, or constitute a
default under, the terms of any indenture or other
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agreement or instrument to which the Company is a party or by which it or any of
its material assets is bound, or any statute, order or regulation applicable to
the Company of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company.
(i) There is no action, suit or proceeding against the Company pending,
or, to the knowledge of the Company, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement or the Certificates, (ii) seeking
to prevent the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement or the Pooling and Servicing
Agreement, (iii) that might materially and adversely affect the performance by
the Company of its obligations under, or the validity or enforceability of, this
Agreement, the Pooling and Servicing Agreement or the Certificates or (iv)
seeking to affect adversely the federal income tax attributes of the
Certificates as described in the Prospectus.
(j) There are no contracts, indentures or other documents of a character
required by the 1933 Act or by the rules and regulations thereunder to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(k) No authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the offering, issuance or
sale of the Certificates pursuant to this Agreement and the Pooling and
Servicing Agreement, except such as have been, or as of the Closing Date will
have been, obtained or such as may otherwise be required under applicable state
securities laws in connection with the purchase and offer and sale of the
Certificates by the Underwriter, and except any recordation of the respective
assignments of the Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing Agreement that have not been completed.
(l) The Company possesses all material licenses, certificates, authorities
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it, and the
Company has not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company.
(m) Any taxes, fees and other governmental charges payable by the Company
in connection with the execution and delivery of this Agreement and the Pooling
and Servicing Agreement or the issuance and sale of the Certificates (other than
such federal, state and local taxes as may be payable on the income or gain
recognized therefrom) have been or will be paid at or prior to the Closing Date.
(n) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company will have good title to, and will be the sole owner of,
each Mortgage Loan, free and clear of any pledge, mortgage, lien, security
interest or other encumbrance.
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(o) Neither the Company nor the Trust Fund is, and neither the issuance
and sale of the Certificates in the manner contemplated by the Prospectus nor
the activities of the Trust Fund pursuant to the Pooling and Servicing Agreement
will cause the Company or the Trust Fund to be, an "investment company" or under
the control of an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(p) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriter pursuant to this Agreement as a sale of the
interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriter
will constitute reasonably equivalent value and fair consideration for the
Certificates. The Company will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund and the sale of the Certificates to the
Underwriter. The Company is not selling the Certificates to the Underwriter or
transferring the Mortgage Loans to the Trustee on behalf of the Trust Fund with
any intent to hinder, delay or defraud any of the creditors of the Company.
(q) At the Closing Date, the respective classes of Certificates shall have
been assigned ratings no lower than those set forth in Schedule I hereto by the
nationally recognized statistical rating organizations identified in Schedule I
hereto (the "Rating Agencies").
(r) At the Closing Date, each of the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(s) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Company are pending or contemplated.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
on the representations and warranties herein set forth, the Company agrees to
sell to the Underwriter and the Underwriter agrees to purchase from the Company,
at the related purchase price set forth on Schedule I hereto, Certificates of
each class thereof having the actual or notional principal amount set forth on
Schedule I hereto. There will be added to the purchase price of the Certificates
to be purchased hereunder an amount equal to interest accrued thereon pursuant
to the terms thereof from November 1, 1998 to but excluding the Closing Date.
3. Payment and Delivery. The closing for the purchase and sale of the
Certificates hereunder shall occur at the offices of Sidley & Austin, 875 Third
Avenue, New York, New York 10022, at 10:00 a.m. New York City time, on November
24, 1998 or at such other location, time and date as shall be mutually agreed
upon by the parties hereto (such time and date of closing, the "Closing Date").
Delivery of the Certificates shall be made through the Same Day Funds Settlement
System of the Depository Trust Company ("DTC"). Payment shall be made to the
Company in immediately available Federal funds wired to such bank as may be
designated by the Company (or by such other method of payment as may be mutually
acceptable to the parties hereto), against
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delivery of the Certificates. The Certificates will be made available for
examination by the Underwriter not later than 3:00 p.m. New York City time on
the last business day prior to the Closing Date.
References herein, including, without limitation, in the Schedules hereto,
to actions taken or to be taken following the Closing Date with respect to any
Certificates that are to be delivered through the facilities of DTC shall
include, if the context so permits, actions taken or to be taken with respect to
the interests in such Certificates as reflected on the books and records of DTC.
4. Offering by Underwriter.
(a) It is understood that the Underwriter proposes to offer the
Certificates for sale to the public, including, without limitation, in and from
the State of New York, as set forth in the Prospectus Supplement. It is further
understood that the Company, in reliance upon Policy Statement 105, has not and
will not file the offering pursuant to Section 352-e of the General Business Law
of the State of New York with respect to the Certificates which are not
"mortgage related securities" as defined in the 1934 Act (as defined below);
accordingly, the Underwriter covenants and agrees with the Company that sales of
such Certificates made by the Underwriter in and from the State of New York will
be made only to institutional investors within the meaning of Policy Statement
105.
(b) The Underwriter may prepare and provide (and acknowledges that it has
prepared and provided) to prospective investors certain Computational Materials
or ABS Term Sheets in connection with its offering of the Certificates. In this
regard, the Underwriter represents and warrants to, and covenants with, the
Company that:
(i) The Underwriter has complied and shall comply with the
requirements of the no-action letter, dated May 20, 1994, issued by the
Commission to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody &
Co. Incorporated and Kidder Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in response
to the request of the Public Securities Association, dated May 25, 1994
(collectively, the "Kidder/PSA Letter"), and the requirements of the
no-action letter, dated February 17, 1995, issued by the Commission to the
Public Securities Association (the "PSA Letter" and, together with the
Kidder/PSA Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials" shall have the
meaning given such term in the No-Action Letters and "ABS Term Sheets,"
"Structural Term Sheets" and "Collateral Term Sheets" shall have the
meanings given such terms in the PSA Letter.
(iii) All such Computational Materials and ABS Term Sheets provided
to prospective investors have borne or shall bear, as the case may be, a
legend in a form previously approved by the Company or its counsel.
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(iv) The Underwriter has not distributed and shall not distribute
any such Computational Materials or ABS Term Sheets, the forms and
methodology of which are not in accordance with this Agreement. The
Underwriter has provided or shall provide, as the case may be, to the
Company, for filing pursuant to a Current Report on Form 8-K as provided
in Section 5(j), copies (in such format as required by the Company) of all
such Computational Materials and ABS Term Sheets. The Underwriter may
provide copies of the foregoing in a consolidated or aggregated form
including all information required to be filed. All Computational
Materials and ABS Term Sheets described in this paragraph (b)(iv) must be
or must have been, as applicable, provided to the Company (A) in paper or
electronic format suitable for filing with the Commission and (B) not
later than 10:00 a.m. (New York City time) on a business day that is not
less than one business day before filing thereof is or was, as the case
may be, required pursuant to the terms of the No-Action Letters.
(v) All information included in the Computational Materials and ABS
Term Sheets in respect of the Certificates has been or shall be generated
based on substantially the same methodology and assumptions as are used to
generate the information in the Prospectus Supplement as set forth
therein; provided that the Computational Materials and ABS Term Sheets may
include information based on alternative methodologies or assumptions if
specified therein. If any Computational Materials or ABS Term Sheets were
based on assumptions with respect to the Mortgage Pool that differ from
the Prospectus Supplement in any material respect or on Certificate
structuring assumptions (except in the case of Computational Materials
when the different structuring terms were hypothesized and so described)
that were revised in any material respect prior to the printing of the
Prospectus, then to the extent that it has not already done so, the
Underwriter shall immediately inform the Company and, upon the direction
of the Company, and if not corrected by the Prospectus, shall prepare
revised Computational Materials and ABS Term Sheets, as the case may be,
based on information regarding the Mortgage Pool and Certificate
structuring assumptions consistent with the Prospectus, circulate such
revised Computational Materials and ABS Term Sheets to all recipients of
the preliminary versions thereof, and include such revised Computational
Materials and ABS Term Sheets (marked, "as revised") in the materials
delivered to the Company pursuant to paragraph (b)(iv) above.
(vi) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that the Company will file
Computational Materials or ABS Term Sheets that contain a material error
or, when read together with the Prospectus, a material omission, if
clearly marked (A) "superseded by materials dated [specify date]" and
accompanied by corrected Computational Materials or ABS Term Sheets that
are marked "material previously dated [specify date], as corrected", or
(B) if the material error or omission is to be corrected in the
Prospectus, "superseded by materials contained in the Prospectus." If,
within the period during which the Prospectus relating to the Certificates
is required to be delivered under the 1933 Act, any Computational
Materials or ABS Term Sheets are determined, in the reasonable judgment of
the Company or the Underwriter, to contain a material error or, when read
together with the Prospectus, a material omission, then (unless the
material error
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or omission was corrected in the Prospectus) the Underwriter shall prepare
a corrected version of such Computational Materials or ABS Term Sheets,
shall circulate such corrected Computational Materials or ABS Term Sheets
to all recipients of the prior versions thereof, and shall deliver copies
of such corrected Computational Materials or ABS Term Sheets (marked, "as
corrected") to the Company for filing with the Commission in a subsequent
Current Report on Form 8-K submission (subject to the Company's obtaining
an accountant's comfort letter in respect of such corrected Computational
Materials and ABS Term Sheets, which shall be at the expense of the
Underwriter).
(vii) The Underwriter shall be deemed to have represented, as of the
Closing Date, that except for Computational Materials and/or ABS Term
Sheets provided to the Company pursuant to or as contemplated by paragraph
(b)(iv) above, the Underwriter did not provide any prospective investors
with any information in written or electronic form in connection with the
offering of the Certificates that is required to be filed with the
Commission in accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by the Underwriter
to the Company of all Computational Materials and ABS Term Sheets required
to be delivered in accordance with or as contemplated by paragraph (b)(iv)
above, the Company shall have the right to delay the release of the
Prospectus to investors or to the Underwriter, to delay the Closing Date
and to take other appropriate actions in each case as necessary in order
to allow the Company to comply with its agreement set forth in Section
5(j) to file the Computational Materials and ABS Term Sheets by the time
specified therein.
(ix) Computational Materials and ABS Term Sheets may be distributed
by the Underwriter through electronic means in accordance with SEC Release
No. 33-7233 (the "Release").
(c) The Underwriter further agrees that it shall promptly provide the
Company with such information as to matters of fact as the Company may
reasonably request to enable it to comply with its reporting requirements with
respect to each class of Certificates to the extent such information can in the
good faith judgment of the Underwriter be determined by it.
5. Covenants of the Company. The Company covenants with the Underwriter
that:
(a) The Company will furnish promptly to the Underwriter and counsel for
the Underwriter one signed copy of the Registration Statement as originally
filed with the Commission, and each amendment or supplement thereto filed prior
to the date of this Agreement or relating to or covering the Certificates, and a
copy of each Prospectus filed with the Commission, including all consents and
exhibits filed therewith.
(b) The Company will deliver promptly to the Underwriter such number of
conformed copies of the Registration Statement and of each amendment or
supplement thereto filed prior to the date of this Agreement or relating to or
covering the Certificates and, during such period following
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the date of this Agreement in which any Prospectus is required by law to be
delivered, such number of copies of each Prospectus, as the Underwriter may
reasonably request.
(c) The Company will file promptly with the Commission, during such period
following the date of the this Agreement in which any Prospectus is required by
law to be delivered, any amendment or supplement to the Registration Statement
or any Prospectus that may, in the judgment of the Company or the Underwriter,
be required by the 1933 Act or requested by the Commission and approved by the
Underwriter.
(d) Prior to filing with the Commission during the period referred to in
paragraph (c) above any amendment or supplement to the Registration Statement or
any Prospectus, the Company will furnish a copy thereof to the Underwriter and
to counsel for the Underwriter, and the Company will not file any such amendment
or supplement to which the Underwriter shall reasonably object.
(e) The Company will advise the Underwriter promptly (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Certificates becomes effective, (ii) of any request or proposed request by
the Commission for an amendment or supplement to the Registration Statement or
to any Prospectus (insofar as the amendment or supplement relates to or covers
the Certificates) or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to any Prospectus or the initiation
or threat of any such stop order proceeding, (iv) of receipt by the Company of
any notification with respect to the suspension of the qualification of the
Certificates for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose and (v) of the happening of any event that makes
untrue any statement of a material fact made in the Registration Statement or
any Prospectus or that requires the making of a change in the Registration
Statement or any Prospectus in order to make any material statement therein not
misleading.
(f) If, during the period referred to in paragraph (c) above, the
Commission will order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the lifting
of that order at the earliest possible time.
(g) [Reserved.]
(h) The Company will endeavor to qualify the Certificates for offer and
sale under the securities laws of such jurisdictions as the Underwriter may
reasonably request, provided, however, that this Section 5(h) shall not obligate
the Company to file any general consent to service of process or to qualify to
do business in any jurisdiction or as a dealer in securities in any jurisdiction
in which it is not so qualified.
(i) The Company will pay or cause to be paid (i) the costs incident in the
preparation, printing and filing under the 1933 Act of the Registration
Statement and any amendments thereof and supplements and exhibits thereto; (ii)
the costs of distributing the Registration Statement as originally filed and
each amendment and post-effective amendment thereof (including exhibits), any
Preliminary Prospectus, each Prospectus and any amendment or supplement to the
Prospectus as
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provided in this Agreement; (iii) the costs of printing and distributing the
Pooling and Servicing Agreement; (iv) the costs of filings, if any, with the
National Association of Securities Dealers, Inc.; (v) fees paid to the Rating
Agencies in connection with the rating of the Certificates; (vi) the fees and
expenses of qualifying the Certificates, under the securities laws of the
several jurisdictions as provided in Section 5(h) hereof, and of preparing and
printing, if so requested by the Underwriter, a preliminary blue sky survey and
legal investment survey concerning the legality of the Certificates as an
investment (including fees and disbursements of counsel to the Underwriter in
connection therewith); and (vii) any other costs and expenses incident to the
performance of the Company's obligations under this Agreement; provided,
however, that, except as provided above in this subsection (i) or in Section 7,
the Underwriter shall pay its own costs and expenses, including the fees and
expenses of its counsel, any transfer taxes on the Certificates that it may sell
and the expenses of advertising any offering of the Certificates made by the
Underwriter.
(j) The Company will file any documents and any amendments thereof as may
be required to be filed by it pursuant to the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), including, but not limited
to, the filing with the Commission pursuant to a Current Report on Form 8-K,
subject to Section 4, all Computational Materials and ABS Term Sheets furnished
by the Underwriter and identified by it as such. The Company will file all such
Computational Materials and ABS Term Sheets within the time period allotted for
such filing pursuant to the No-Action Letters. The Company represents and
warrants that, to the extent required by the No-Action Letters, the Company has
timely filed with the Commission any Collateral Term Sheets previously delivered
to it as contemplated by Section 4(b)(iv).
6. Conditions to the Obligations of the Underwriter. The obligation of the
Underwriter hereunder to purchase the Certificates shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date, as
of the date the Prospectus Supplement or any supplement thereto is filed with
the Commission and as of the Closing Date, to the accuracy of the statements of
the Company made in any certificates delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
satisfaction, as of the Closing Date, of the following additional conditions:
(a) The Registration Statement shall have become effective and no stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and not withdrawn and no proceedings
for that purpose shall have been instituted or, to the Company's knowledge,
threatened; and the Prospectus Supplement shall have been filed or transmitted
for filing with the Commission in accordance with Rule 424 under the 1933 Act.
(b) The Company shall have delivered to the Underwriter a certificate of
the Company, signed by an authorized officer of the Company and dated the
Closing Date, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date; and
(ii) the Company has in all material respects complied with all the agreements
and satisfied all the
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<PAGE>
conditions on its part that are required hereby to be performed or satisfied at
or prior to the Closing Date.
(c) The Underwriter shall have received with respect to the Company a good
standing certificate from the Secretary of State of the State of Delaware, dated
not earlier than 30 days prior to the Closing Date.
(d) The Underwriter shall have received from the Secretary or an assistant
secretary of the Company, in his individual capacity, a certificate, dated the
Closing Date, to the effect that: (i) each individual who, as an officer or
representative of the Company, signed this Agreement, the Pooling and Servicing
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or in the
Pooling and Servicing Agreement, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed, qualified
and acting as such officer or representative, and the signatures of such persons
appearing on such documents and certificates are their genuine signatures; and
(ii) no event (including, without limitation, any act or omission on the part of
the Company) has occurred since the date of the good standing certificate
referred to in paragraph (c) above which has affected the good standing of the
Company under the laws of the State of Delaware. Such certificate shall be
accompanied by true and complete copies (certified as such by the Secretary or
an assistant secretary of the Company) of the certificate of incorporation and
by-laws of the Company, as in effect on the Closing Date, and of the resolutions
of the Company and any required shareholder consent relating to the transactions
contemplated in this Agreement and the Pooling and Servicing Agreement.
(e) You shall have received from Sidley & Austin, special counsel for the
Company, a favorable opinion, dated the Closing Date and satisfactory in form
and substance to you and counsel for the Underwriter, to the effect that:
(i) The Registration Statement and any post-effective amendments
thereto have become effective under the 1933 Act.
(ii) To the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and not
withdrawn, and no proceedings for that purpose have been instituted or
threatened and not terminated.
(iii) The Registration Statement, each post-effective amendment
thereto (if any), the Basic Prospectus and the Prospectus Supplement, as
of their respective effective or issue dates (other than the financial
statements, schedules and other financial and statistical information
contained therein or omitted therefrom, as to which such counsel need
express no opinion), complied as to form in all material respects with the
applicable requirements of the 1933 Act and the rules and regulations
thereunder.
(iv) To the best knowledge of such counsel, there are no material
contracts, indentures or other documents relating to the Certificates of a
character required to be
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<PAGE>
described or referred to in the Registration Statement or the Prospectus
Supplement or to be filed as exhibits to the Registration Statement, other
than those described or referred to therein or filed or incorporated by
reference as exhibits thereto.
(v) The Pooling and Servicing Agreement constitutes a valid, legal,
binding and enforceable agreement of the Company, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally, to general
principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law and public policy considerations underlying
the securities laws, to the extent that such public policy considerations
limit the enforceability of the provisions of this Agreement or the
Pooling and Servicing Agreement that purport to provide indemnification
from securities law liabilities.
(vi) The Certificates, when duly and validly executed, authenticated
and delivered in the manner contemplated in the Pooling and Servicing
Agreement, will be duly and validly issued and outstanding and entitled to
the benefits of the Pooling and Servicing Agreement.
(vii) The statements set forth in the Prospectus Supplement under
the headings "Description of the Offered Certificates" and "Servicing of
the Mortgage Loans" and in the Basic Prospectus under the headings
"Description of the Securities", "Servicing of Mortgage Loans" and "The
Trust Agreement", insofar as such statements purport to summarize certain
material provisions of the Certificates and the Pooling and Servicing
Agreement, provide a fair and accurate summary of such provisions.
(viii) The statements set forth in the Prospectus Supplement under
the headings "Federal Income Tax Consequences", "Certain ERISA
Considerations" and "Legal Investment" and in the Basic Prospectus under
the headings "Federal Income Tax Considerations" and "Legal Investment",
to the extent that they constitute matters of federal law or legal
conclusions with respect thereto, while not discussing all possible
consequences of an investment in the Certificates to all investors,
provide a fair and accurate summary of such matters and conclusions set
forth under such headings.
(ix) Upon initial issuance, the Class A-1-a, Class A-1-b, Class A-2,
Class B and Class X Certificates will be "mortgage related securities", as
defined in Section 3(a)(41) of the 1934 Act.
(x) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and neither
the Company nor the Trust Fund is required to be registered under the 1940
Act.
(xi) No consent, approval, authorization or order of any State of
New York or federal court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated herein or
in the Pooling and Servicing
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<PAGE>
Agreement, except (A) such as have been obtained under the 1933 Act, (B)
such as may be required under the blue sky laws of any jurisdiction in
connection with the offer and sale of the Certificates by the Underwriter,
as to which such counsel need express no opinion; and (C) any recordation
of the assignments of the Mortgage Loans pursuant to the Pooling and
Servicing Agreement that has not yet been completed.
(xii) Assuming compliance with all provisions of the Pooling and
Servicing Agreement, for federal income tax purposes, REMIC I, REMIC II
and REMIC III will each qualify as a real estate mortgage investment
conduit (a "REMIC") under the Internal Revenue Code of 1986 (the "Code"),
the Class R-I Certificates will be the sole class of "residual interests"
in REMIC I, the Class R-II Certificates will be the sole class of
"residual interests" in REMIC II, the Class A-1-a, Class A-1-b, Class A-2,
Class B, Class C, Class D, Class E, Class X, Class F, Class G, Class H,
Class J, Class K, Class L and Class M and Class N Certificates will
evidence the "regular interests" in REMIC III, and the Class R-III
Certificates will be the sole class of "residual interests" in REMIC III.
In giving its opinions pursuant to this Section 6(e), special counsel to
the Company, Sidley & Austin, shall additionally state that, based on
conferences and telephone conversations with representatives of the Company,
Holdings, LUBS, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent and their respective counsel, and (with limited exception) without
having reviewed any of the mortgage notes, mortgages or other documents relating
to the Mortgage Loans or made any inquiry of any originator of any Mortgage Loan
not referenced above, nothing has come to such special counsel's attention that
would lead it to believe that the Prospectus (other than any accounting,
financial or statistical information included therein or omitted therefrom, and
other than any information incorporated therein by reference, as to which such
counsel has not been requested to comment), at the date of the Prospectus
Supplement or at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In giving its opinions pursuant to this Section 6(e), special counsel to
the Company, Sidley & Austin, may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials and, further, may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto. Such opinion may be qualified as an opinion
only on the General Corporation Law of the State of Delaware, the laws of the
State of New York and the federal law of the United States.
(f) The Underwriter shall have received copies of all legal opinion
letters delivered by Sidley & Austin to the Rating Agencies in connection with
the issuance of the Certificates, accompanied in each case by a letter signed by
Sidley & Austin stating that the Underwriter may rely on such opinion letter as
if it were addressed to the Underwriter as of the date thereof.
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<PAGE>
(g) The Underwriter shall have received from Christopher Epes, Esq.,
counsel for the Company, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter, to the effect that:
(i) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and has the
corporate power to enter into and perform its obligations under each of
the Mortgage Loan Purchase Agreements and the Pooling and Servicing
Agreement.
(ii) Each of the Mortgage Loan Purchase Agreements and the Pooling
and Servicing Agreement has been duly authorized, executed and delivered
by the Company.
(iii) The execution, delivery and performance of the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements by the
Company, and the consummation of the transactions contemplated thereby, to
such counsel's knowledge, do not and will not result in a material breach
or violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or
instrument known to such counsel to which the Company is a party, nor will
such actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company (except for such conflicts, breaches,
violations and defaults as would not have a material adverse effect on the
ability of the Company to perform its obligations under the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements).
(iv) to such counsel's knowledge without any independent
investigation, no consent, approval, authorization or order of or with any
court or governmental agency or body of the United States or any other
jurisdiction is required for the transactions contemplated by the
Agreements, except such consents, approvals, authorizations, registrations
or qualifications as have been previously obtained or the failure of which
to obtain would not have a material adverse effect on the performance by
SASCO of its obligations under the Mortgage Loan Purchase Agreements and
the Pooling and Servicing Agreement.
In giving his opinions required pursuant to this Section 6(g), counsel to
the Company, Christopher Epes, Esq., may express his reliance as to factual
matters on the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials and, further, may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company. Such opinion may be
qualified as an opinion only on the General Corporation Law of the State of
Delaware, the laws of the State of New York and the federal law of the United
States.
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<PAGE>
(h) The Underwriter shall have received from Deloitte & Touche, LLP,
certified public accountants, a letter dated the Closing Date and satisfactory
in form and substance to the Underwriter and counsel for the Underwriter, to the
following effect:
(i) they have performed certain specified procedures as a result of
which they have determined that the information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
under the captions "Summary of the Prospectus Supplement," "Description of
the Mortgage Pool" and "Yield and Maturity Considerations" and on Annex
A-1, Annex A-2, Annex A-3 and Annex A-4 agrees with the data sheet or
computer tape prepared by or on behalf of the Mortgage Loan Sellers,
unless non-material deviations are otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed upon sampling of the Mortgage Loan
files and in such other sources as shall be specified by them, and found
such data and information to be in agreement in all material respects,
unless non-material deviations are otherwise noted in such letter.
(i) The Underwriter shall have received, with respect to each of the
Master Servicer, the Special Servicer, the Fiscal Agent and the Trustee, a
favorable opinion of counsel, dated the Closing Date, addressing the valid
existence of such party under the laws of the jurisdiction of its organization,
the due authorization, execution and delivery of the Pooling and Servicing
Agreement by such party and, subject to the same limitations as set forth in
Section 6(e)(v), the enforceability of the Pooling and Servicing Agreement
against such party. Counsel rendering each such opinion may express its reliance
as to factual matters on representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of parties to this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials and, further, may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party on
behalf of which such opinion is being rendered. Such opinion may be qualified as
an opinion only on the General Corporation Law of the State of Delaware (if
relevant), the laws of the State of New York, the laws of each other state in
which the writer of the opinion is admitted to practice law and the federal law
of the United States.
(j) The Underwriter shall have been furnished with all documents,
certificates and opinions to be delivered by Holdings in connection with the
sale by Holdings of its Mortgage Loans to the Company, pursuant to the Holdings
Mortgage Loan Purchase Agreement.
(k) The Underwriter shall have been furnished with all documents,
certificates and opinions to be delivered by LUBS in connection with the sale by
LUBS of its Mortgage Loans to the Company, pursuant to the LUBS Mortgage Loan
Purchase Agreement.
(l) The Underwriter and counsel to the Underwriter shall have been
furnished with such other documents and opinions as they may reasonably require,
for the purpose of enabling them to
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<PAGE>
pass upon the issuance and sale of the Certificates as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained.
(m) The Certificates shall have been assigned ratings no less than those
set forth on Schedule I and such ratings shall not have been rescinded.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, if
the Company is in breach of any covenants or agreements contained herein or if
any of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter and counsel for the Underwriter, this Agreement
and all obligations of the Underwriter hereunder may be cancelled at, or at any
time prior to, the Closing Date by the Underwriter. Notice of such cancellation
shall be given to the Company in writing, or by telephone or telegraph confirmed
in writing.
7. Reimbursement of Underwriter's Expenses. If the sale of the
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 6 is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, other than by
reason of a default by the Underwriter, the Company will reimburse the
Underwriter upon demand, for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by it in
connection with the proposed purchase and sale of the Certificates.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Basic Prospectus, any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened,
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<PAGE>
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriter),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause (i)
or (ii) above;
provided, however, that the foregoing indemnity shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information (as specified in Section 8(b)
below) furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or in the Basic Prospectus,
any Preliminary Prospectus Supplement or the Prospectus Supplement (or any
amendment or supplement thereto); and provided, further, that the foregoing
indemnity with respect to the Basic Prospectus or any Preliminary Prospectus
Supplement shall not inure to the benefit of the Underwriter (or to the benefit
of any person controlling the Underwriter) with respect to any loss, liability,
claim, damage or expense arising out of the claims of any particular person that
purchased Certificates if the untrue statement or omission or alleged untrue
statement or omission made in the Basic Prospectus or such Preliminary
Prospectus Supplement upon which such claims are based is eliminated or remedied
in the Prospectus and, if required by law, a copy of the Prospectus shall not
have been furnished to such person at or prior to the written confirmation of
the sale of such Certificates to such person.
(b) The Underwriter agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 8(a),
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or in the Basic Prospectus, any Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or in the Basic Prospectus, such Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement
thereto); provided that in no event shall the Underwriter be liable for any such
loss, liability, claim, damage or expense if such untrue statement or omission
or alleged untrue statement or omission resulted from an untrue statement or
omission in the underlying data regarding the Mortgage Loans, or the related
Mortgagors or Mortgaged Properties, provided to the Underwriter by the Mortgage
Loan Sellers. It is hereby acknowledged that (i) the statements set forth in the
first and second sentences of the last paragraph on the cover of the Prospectus
Supplement, (ii) the statements in the first sentence of each of the second and
fourth paragraphs under the caption "Method of Distribution" in the Prospectus
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Supplement and (iii) the statements in any Computational Materials and ABS Term
Sheets delivered by the Underwriter to the Company for filing with the
Commission pursuant to this Agreement and the No-Action Letters, constitute the
only written information furnished to the Company by the Underwriter expressly
for use in the Registration Statement (or any amendment thereto) or in the Basic
Prospectus, the Preliminary Prospectus Supplement or the Prospectus Supplement
(or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of such
counsel, or (ii) the indemnifying party shall not have assumed the defense of
such action, with counsel satisfactory to the indemnified party, within a
reasonable period following the indemnifying party's receiving notice of such
action, or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In no event shall
the indemnifying party or parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from its or their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. Unless it shall assume the
defense of any proceeding, an indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party shall indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. If an indemnifying
party assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the indemnified party or, if such settlement
provides for the unconditional release of the indemnified party in connection
with all matters relating to the proceeding that have been asserted against the
indemnified party in such proceeding by the other parties to such settlement,
without the consent of the indemnified party.
9. Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Section 8
hereof is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriter, as incurred, in such proportions
that the Underwriter is responsible for that portion represented by the
percentage that the underwriting discounts and commissions pertaining to the
Certificates bears to the aggregate of the initial public offering prices of the
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Certificates and the Company is responsible for the balance; provided, however,
that no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation; and provided, further,
that in no event shall the Underwriter be obligated to contribute more than an
amount equal to the underwriting discounts and commissions pertaining to the
Certificates. For purposes of this Section, each person, if any, who controls
the Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
10. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter, or by or on behalf of the
Company, or by or on behalf of any of the controlling persons and officers and
directors referred to in Sections 8 and 9, and shall survive delivery of the
Certificates to the Underwriter.
11. Termination of Agreement; Survival.
(a) The Underwriter may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in the reasonable judgment of the Underwriter,
impracticable to market the Certificates or to enforce contracts for the sale of
the Certificates, or (iii) if trading generally on the New York Stock Exchange
has been suspended, or if a banking moratorium has been declared by either
federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 11, such
termination shall be without liability of any party to any other party, except
as provided in Section 10.
(c) The provisions of Section 5(i) regarding the payment of costs and
expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement.
12. Notices. Any notice by the Company to the Underwriter shall be
sufficient if given in writing or by telegraph addressed to the Underwriter at
200 Vesey Street, New York, New York 10285, attention of James C. Blakemore, and
any notice by the Underwriter to the Company shall be sufficient if given in
writing or by telegraph addressed to the Company at 200 Vesey Street, New York,
New York 10285, attention of the President.
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<PAGE>
13. Successors. This Agreement shall be binding upon the Underwriter, the
Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the indemnity agreement of the Underwriter contained in Section 8 hereof shall
be deemed to be also for the benefit of directors of the Company, officers of
the Company who have signed the Registration Statement and any person
controlling the Company and the indemnity agreement of the Company contained in
Section 8 shall be deemed to be also for the benefit of any person controlling
the Underwriter. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
14. Business Day. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange is open for trading.
15. Applicable Law. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York, applicable to
contracts made and to be performed entirely in said State.
16. Counterparts. This Agreement may be executed in one or more
counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriter.
Very truly yours,
STRUCTURED ASSET SECURITIES
CORPORATION
By:
-----------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
LEHMAN BROTHERS INC.
By:
---------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
Underwriting Agreement, dated as of November 17, 1998.
Title and Description of the Certificates:
Lehman Brothers Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1998-C4, Class A-1-a, Class A-1-b,
Class A-2, Class B, Class C, Class D, Class E and Class X.
Cut-off Date: As defined in the Prospectus
Expected Closing Date: November [24], 1998
CERTIFICATES
<TABLE>
<CAPTION>
====================================================================================================================================
Class A-1-a Class A-1-b Class A-2 Class B Class C Class D Class E Class X
----------- ----------- --------- ------- ------- ------- ------- -------
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<S> <C> <C> <C> <C> <C> <C> <C> <C>
Initial Aggregate
Certificate
Principal
Amount or
Certificate $106,343,00
Notional Amount $275,000,000 $693,553,000 $500,000,000 0 $106,344,000 $121,535,000 $30,384,000 $2,025,590,706(1)
- ------------------------------------------------------------------------------------------------------------------------------------
Initial Pass-
Through Rate 5.870% 6.210% 6.300% 6.360% 6.500% 6.500% 6.500% 0.564%
- ------------------------------------------------------------------------------------------------------------------------------------
Rating(2) Aaa/AAA Aaa/AAA Aaa/AAA Aa2/AA A2/A Baa2/BBB Baa3/BBB- Aaa/AAAr
- ------------------------------------------------------------------------------------------------------------------------------------
Purchase Price(3)
====================================================================================================================================
</TABLE>
- ---------------
(1) Notional amount.
(2) By Moody's Investors Service, Inc., and Standard & Poor's Rating Services,
a division of the McGraw-Hill Companies, Inc., respectively.
(3) Expressed as a percentage of the initial aggregate stated principal amount
or notional principal amount, as applicable, of each class of
Certificates. The Purchase Price for each class of Certificates will
include accrued interest at the initial Pass-Through Rate therefor on the
initial aggregate stated principal amount or notional principal amount
thereof from November 1, 1998 to but not including the Closing Date.
================================================================================
STRUCTURED ASSET SECURITIES CORPORATION
Depositor
FIRST UNION NATIONAL BANK
Master Servicer
and
LENNAR PARTNERS, INC.
Special Servicer
and
LASALLE NATIONAL BANK
Trustee
and
ABN AMRO BANK N.V.
Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 1998
------------------------------
$2,025,590,706
LB Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 1998-C4
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01. Defined Terms.................................................. 5
SECTION 1.02. General Interpretive Principles................................58
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Mortgage Loans................59
SECTION 2.02. Acceptance of Trust Fund by Trustee............................60
SECTION 2.03. Repurchase of Mortgage Loans for Document Defects
and Breaches of Representations and Warranties...............62
SECTION 2.04. Representations, Warranties and Covenants of the
Depositor....................................................63
SECTION 2.05. Execution, Authentication and Delivery of Class
R-I Certificates; Creation of REMIC I Regular Interests......78
SECTION 2.06. Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II by Trustee............................79
SECTION 2.07. Execution, Authentication and Delivery of Class
R-II Certificates............................................79
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance
of REMIC III by Trustee......................................79
SECTION 2.09. Execution, Authentication and Delivery of
REMIC III Certificates.......................................80
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans...........................81
SECTION 3.02. Collection of Mortgage Loan Payments...........................82
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.........................83
-i-
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Page
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SECTION 3.04. Custodial Account, Collection Account..........................86
SECTION 3.05. Permitted Withdrawals From the Custodial Account,
the Collection Account and the Interest Reserve Account......89
SECTION 3.06. Investment of Funds in the Servicing Accounts,
the Reserve Accounts, the Custodial Account,
the Collection Account, the Interest Reserve Account
and the REO Account..........................................94
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage..............................96
SECTION 3.08. Enforcement of Alienation Clauses..............................99
SECTION 3.09. Realization Upon Defaulted Mortgage Loans;
Required Appraisals.........................................100
SECTION 3.10. Trustee and Custodian to Cooperate;
Release of Mortgage Files...................................104
SECTION 3.11. Servicing Compensation........................................105
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.................................108
SECTION 3.13. Annual Statement as to Compliance.............................111
SECTION 3.14. Reports by Independent Public Accountants.....................111
SECTION 3.15. Access to Certain Information.................................112
SECTION 3.16. Title to REO Property; REO Account............................112
SECTION 3.17. Management of REO Property....................................114
SECTION 3.18. Sale of Mortgage Loans and REO Properties.....................117
SECTION 3.19. Additional Obligations of the Master Servicer.................120
SECTION 3.20. Modifications, Waivers, Amendments and Consents...............122
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping............................127
SECTION 3.22. Sub-Servicing Agreements......................................129
SECTION 3.23. Representations and Warranties of the Master Servicer.........132
SECTION 3.24. Representations and Warranties of the Special Servicer........133
SECTION 3.25. Year 2000 Readiness...........................................135
-ii-
<PAGE>
Page
----
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.................................................136
SECTION 4.02. Statements to Certificateholders; CSSA Loan File Report.......151
SECTION 4.03. P&I Advances..................................................159
SECTION 4.04. Allocation of Realized Losses and Additional
Trust Fund Expenses.........................................162
SECTION 4.05. Calculations..................................................163
SECTION 4.06. Use of Agents.................................................163
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates..............................................164
SECTION 5.02. Registration of Transfer and Exchange of Certificates.........165
SECTION 5.03. Book-Entry Certificates.......................................171
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.............172
SECTION 5.05. Persons Deemed Owners.........................................173
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer....................................................174
SECTION 6.02. Merger, Consolidation or Conversion of Depositor,
Master Servicer or Special Servicer.........................174
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer........................................175
SECTION 6.04. Resignation of Master Servicer and the Special Servicer.......176
SECTION 6.05. Rights of Depositor and Trustee in Respect of
Master Servicer and the Special Servicer....................176
SECTION 6.06. Depositor, Master Servicer and Special Servicer
to Cooperate with Trustee...................................177
SECTION 6.07. Depositor, Special Servicer and Trustee
to Cooperate with Master Servicer...........................177
-iii-
<PAGE>
Page
----
SECTION 6.08. Depositor, Master Servicer and Trustee
to Cooperate with Special Servicer..........................177
SECTION 6.09. Designation of Special Servicer by the Controlling Class......177
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.................................................179
SECTION 6.11. Certain Powers of the Controlling Class Representative........179
SECTION 6.12. Termination of Master Servicer................................181
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.............................................183
SECTION 7.02. Trustee to Act; Appointment of Successor......................186
SECTION 7.03. Notification to Certificateholders............................187
SECTION 7.04. Waiver of Events of Default...................................187
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default..........188
ARTICLE VIII
CONCERNING THE TRUSTEE
AND FISCAL AGENT
SECTION 8.01. Duties of Trustee.............................................189
SECTION 8.02. Certain Matters Affecting Trustee.............................190
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans...............191
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.................192
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee......192
SECTION 8.06. Eligibility Requirements for Trustee..........................193
SECTION 8.07. Resignation and Removal of Trustee............................194
SECTION 8.08. Successor Trustee.............................................195
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent...........195
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.................196
SECTION 8.11. Appointment of Custodians.....................................197
SECTION 8.12. Appointment of Authenticating Agents..........................197
SECTION 8.13. Appointment of REMIC Administrators...........................198
SECTION 8.14. Access to Certain Information.................................199
SECTION 8.15. Reports to the Securities and Exchange Commission;
Available Information.......................................201
-iv-
<PAGE>
Page
----
SECTION 8.16. Representations and Warranties of Trustee.....................201
SECTION 8.17. The Fiscal Agent..............................................203
SECTION 8.18. Representations and Warranties of Fiscal Agent................204
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation
of All Mortgage Loans.......................................206
SECTION 9.02. Additional Termination Requirements...........................213
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration..........................................214
SECTION 10.02 Grantor Trust Administration..................................218
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.....................................................220
SECTION 11.02. Recordation of Agreement; Counterparts........................222
SECTION 11.03. Limitation on Rights of Certificateholders....................222
SECTION 11.04. Governing Law.................................................223
SECTION 11.05. Notices.......................................................223
SECTION 11.06. Severability of Provisions....................................224
SECTION 11.07. Grant of a Security Interest..................................224
SECTION 11.08. Streit Act....................................................225
SECTION 11.09. Successors and Assigns; Beneficiaries.........................225
SECTION 11.10. Article and Section Headings..................................225
SECTION 11.11. Notices to Rating Agencies....................................226
SECTION 11.12. Global Opinions...............................................227
SECTION 11.13. Complete Agreement............................................227
-v-
<PAGE>
EXHIBITS
Exhibit No. Exhibit Description
- ----------- -------------------
A-1 Form of Class [A-1-a] [A-1-b] [A-2] Certificate
A-2 Form of Class X Certificate
A-3 Form of Class [B][C][D][E] Certificate
A-4 Form of Class [F][G][H][J][K][L][M][N] Certificate
A-5 Form of Class [R-I][R-II][R-III] Certificate
B Mortgage Loan Schedule
C Schedule of Exceptions to Mortgage File Delivery
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Calculation of NOI/Debt Service Coverage Ratios
F-1 Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C Form I of Transferee Certificate for Transfers of Interests in
Book-Entry Non-Registered Certificates
F-2D Form II of Transferee Certificate for Transfers of Interests in
Book-Entry Non-Registered Certificates
G-1 Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
G-2 Form II of Transferee Certificate in Connection with ERISA
(Book-Entry Non-Registered Certificates)
H-1 Form of Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2 Form of Transferor Certificate regarding Residual Interest
Certificates
I-1 Form of Notice and Acknowledgment
I-2 Form of Acknowledgment of Proposed Special Servicer
J Form of UCC-1 financing statement
K Form of Schedule of initial Sub-Servicers
L Form of CSSA Loan File Report
M Form of CSSA Property File Report
N Form of Comparative Financial Status Report
O Form of REO Status Report
P Form of Watch List Report
Q Form of Delinquent Loan Status Report
R Form of Historical Loan Modification Report
S Form of Historical Loss Estimate Report
-vi-
<PAGE>
Exhibit No. Exhibit Description
- ----------- -------------------
T Form of NOI Adjustment Worksheet
U Form of Operating Statement Analysis
V Form of Loan Payoff Notification Report
W Exceptions to the Representations and Warranties of the
Depositor
X Organizational Documents of the Depositor
-vii-
<PAGE>
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of November 1, 1998, among STRUCTURED ASSET SECURITIES CORPORATION,
as Depositor, FIRST UNION NATIONAL BANK, as Master Servicer, LENNAR PARTNERS,
INC., as Special Servicer, LASALLE NATIONAL BANK, as Trustee, and ABN AMRO BANK
N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates to be issued
hereunder in multiple Classes, which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund to be created hereunder.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans (exclusive of any collections of
Additional Interest on the ARD Loans after their respective Anticipated
Repayment Dates) and certain other related assets subject to this Agreement as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC I". The Class R-I Certificates will represent the sole
class of "residual interests" in REMIC I for purposes of the REMIC Provisions
under federal income tax law. Except as provided below, each of the REMIC I
Regular Interests will relate to a specific Mortgage Loan. Each such REMIC I
Regular Interest will: (i) accrue interest at a per annum rate described in the
definition of "REMIC I Remittance Rate"; and (ii) have an initial Uncertificated
Principal Balance equal to the Cut-off Date Balance of the related Mortgage
Loan. The Legal Final Distribution Date of each of the REMIC I Regular Interests
is the Rated Final Distribution Date. None of the REMIC I Regular Interests will
be certificated.
<PAGE>
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II." The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table sets forth the designation,
the REMIC II Remittance Rate and the initial Uncertificated Principal Balance
for each of the REMIC II Regular Interests. The Legal Final Distribution Date
for each REMIC II Regular Interest is the Rated Final Distribution Date. None of
the REMIC II Regular Interests will be certificated.
Initial
REMIC II Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
A-1-a Variable (1) $275,000,000
A-1-b Variable (1) $693,553,000
A-2 Variable (1) $500,000,000
B Variable (1) $106,343,000
C Variable (1) $106,344,000
D Variable (1) $121,535,000
E Variable (1) $30,384,000
F Variable (1) $50,640,000
G Variable (1) $45,576,000
H Variable (1) $15,192,000
J Variable (1) $20,255,000
K Variable (1) $10,128,000
L Variable (1) $15,192,000
M Variable (1) $10,128,000
N Variable (1) $25,320,706
- ----------
(1) Calculated in accordance with the definition of "REMIC II Remittance Rate".
-2-
<PAGE>
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III". The Class R-III Certificates will evidence the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
Class designation, Pass-Through Rate and initial Class Principal Balance for
each Class of the Regular Interest Certificates. For federal income tax
purposes, each Class of the Regular Interest Certificates (other than the Class
X Certificates) and each of the fifteen Components of the Class X Certificates
will be designated as a separate "regular interest" in REMIC III. The Legal
Final Distribution for each Class of Regular Interest Certificates (or, in the
case of the Class X Certificates, for each of the fifteen Components thereof) is
the Rated Final Distribution Date.
Class Pass-Through Initial Class
Designation Rate Principal Balance
----------- ---- -----------------
Class A-1-a 5.87% $275,000,000
Class A-1-b 6.21% $693,553,000
Class A-2 6.30% $500,000,000
Class B 6.36% $106,343,000
Class C 6.50% $106,344,000
Class D 6.50% $121,535,000
Class E 6.50% $30,384,000
Class X Variable (1) $2,025,590,706(2)
Class F 6.00% $50,640,000
Class G 5.60% $45,576,000
Class H 5.60% $15,192,000
Class J 5.60% $20,255,000
Class K 5.60% $10,128,000
Class L 5.60% $15,192,000
Class M 5.60% $10,128,000
Class N 5.60% $25,320,706
- ----------
(1) Calculated in accordance with the definition of "Pass-Through Rate".
(2) Class Notional Amount. The Class X Certificates will not have a Class
Principal Balance, and will not be entitled to receive distributions of
principal. As more specifically provided herein, interest in respect of
such Certificates will consist of the aggregate amount of interest accrued
on the respective Component Notional Amounts of its Components from time
to time.
-3-
<PAGE>
As provided herein, the Trustee shall take all actions necessary to
ensure that the portion of the Trust Fund consisting of the Grantor Trust Assets
maintains its status as a Grantor Trust under the Code.
The aggregate Cut-off Date Balance of the Mortgage Loans, the
initial aggregate Uncertificated Principal Balance of the REMIC I Regular
Interests, the initial aggregate Uncertificated Principal Balance of the REMIC
II Regular Interests and the initial aggregate Class Principal Balance of the
respective Classes of Regular Interest Certificates (other than the Class X
Certificates) will in each case be $2,025,590,706.
Capitalized terms used in this Preliminary Statement have the
respective meanings assigned thereto in Section 1.01.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent agree as follows:
-4-
<PAGE>
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
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.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest on a
30/360 Basis.
"Accrued Certificate Interest": With respect to any Class of
Principal Balance Certificates for any Distribution Date, one month's interest
at the Pass-Through Rate applicable to such Class of Certificates for such
Distribution Date, accrued during the related Interest Accrual Period on the
related Class Principal Balance outstanding immediately prior to such
Distribution Date. With respect to the Class X Certificates for any Distribution
Date, the aggregate Accrued Component Interest for all of its Components for
such Distribution Date. Accrued Certificate Interest shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"Accrued Component Interest": With respect to each Component of the
Class X Certificates for any Distribution Date, one month's interest at the
Pass-Through Rate applicable to such Component for such Distribution Date,
accrued during the related Interest Accrual Period on the Component Notional
Amount of such Component outstanding immediately prior to such Distribution
Date. Accrued Component Interest shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months.
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulations Section 1.856-6(b)(1), which is the first
day on which the Trust Fund is treated as the owner of such REO Property for
federal income tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month in a year assumed
to consist of 360 days.
"Actual/360 Mortgage Loan": A Mortgage Loan that accrues interest on
an Actual/360 Basis.
"Additional Information": As defined in Section 4.02(a).
-5-
<PAGE>
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the entire
outstanding principal balance of such ARD Loan has been paid), together with all
interest, if any, accrued at the related Mortgage Rate on such deferred
interest. For purposes of this Agreement, Additional Interest on an ARD Loan or
any successor REO Loan shall be deemed not to constitute principal or any
portion thereof and shall not be added to the unpaid principal balance or Stated
Principal Balance of such ARD Loan or any successor REO Loan, notwithstanding
that the terms of the related loan documents so permit. To the extent that any
Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
"Additional Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the Mortgage Rate for
such Mortgage Loan resulting from the passage of such Anticipated Repayment
Date.
"Additional Trust Fund Expense": Any of the following: (i) any
Special Servicing Fees, Liquidation Fees, Workout Fees and, in accordance with
Sections 3.03(d) and 4.03(d), interest on Advances payable to the Master
Servicer, the Special Servicer, the Trustee and/or the Fiscal Agent (other than
out of Default Interest and late payment charges); (ii) any of the expenses of
the Trust Fund that may be withdrawn pursuant to any of clauses (iv)(B), (ix),
(xi), (xii), (xiii) and (xv) of Section 3.05(a) out of general collections on
the Mortgage Loans and REO Properties on deposit in the Custodial Account; and
(iii) any of the expenses of the Trust Fund (other than Trustee Fees) that may
be withdrawn pursuant to any of clauses (ii), (iv), (v) and (vi) of Section
3.05(b) out of general collections on the Mortgage Loans and REO Properties on
deposit in the Collection Account; provided that, for purposes of the
allocations contemplated by Section 4.04, no such expense shall have been
incurred until such time as the payment thereof is actually made from the
Custodial Account or the Collection Account, as the case may be.
"Administrative Cost Rate": With respect to each Mortgage Loan, as
specified in the Mortgage Loan Schedule, the sum of the related Master Servicing
Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event:" As defined in Section 10.02(e).
"Adverse REMIC Event": As defined in Section 10.01(i).
"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.
-6-
<PAGE>
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Annual Accountants' Report": As defined in Section 3.14
"Annual Performance Certification": As defined in Section 3.13.
"Anticipated Repayment Date": For each ARD Loan, the date specified
in the related Mortgage Note after which the Mortgage Rate for such ARD Loan
will increase as specified in the related Mortgage Note.
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated as of the Determination Date immediately following
the later of the date on which the subject Mortgage Loan became a Required
Appraisal Loan and the date on which the applicable Required Appraisal was
obtained) equal to the excess, if any, of (a) the sum of, without duplication,
(i) the Stated Principal Balance of the subject Required Appraisal Loan, (ii) to
the extent not previously advanced by or on behalf of the Master Servicer, the
Trustee or the Fiscal Agent, all unpaid interest on the Required Appraisal Loan
through the most recent Due Date prior to such Determination Date (net of
related Master Servicing Fees and exclusive of any portion thereof that
represents Additional Interest and/or Default Interest), (iii) all accrued but
unpaid Servicing Fees in respect of such Required Appraisal Loan, (iv) all
related unreimbursed Advances (plus accrued interest thereon) made by or on
behalf of the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent with respect to such Required Appraisal Loan, (v) any other unpaid
Additional Trust Fund Expense in respect of such Required Appraisal Loan and
(vi) all currently due and unpaid real estate taxes and assessments, insurance
premiums and, if applicable, ground rents, and any unfunded improvement
reserves, in respect of the related Mortgaged Property (in each case, net of any
amounts escrowed for such items) over (b) the Required Appraisal Value.
"Appraised Value": With respect to each Mortgaged Property, the
appraised value thereof based upon the most recent appraisal or update thereof
that is contained in the related Servicing File.
"Arden Loan": That certain Mortgage Loan secured by a Mortgaged
Properties identified on the Mortgage Loan Schedule as Arden II.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue additional interest at the rate specified in the
related Mortgage Note and the Mortgagor is required to apply excess monthly cash
flow generated by the related Mortgaged Property to the repayment of the
outstanding principal balance on such Mortgage Loan.
-7-
<PAGE>
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Assumed Monthly Payment": With respect to any Balloon Mortgage Loan
delinquent in respect of its Balloon Payment, for each Due Date coinciding with
or following its most recent scheduled maturity date (including the related
Stated Maturity Date or any extended maturity date) as of which such Mortgage
Loan remains outstanding and part of the Trust Fund (provided that such Mortgage
Loan was not paid in full, and no other Liquidation Event occurred in respect
thereof, before the end of the Collection Period in which such maturity date
occurs), the scheduled monthly payment of principal and/or interest deemed to be
due in respect of such Mortgage Loan on such Due Date equal to the amount that
would have been due in respect thereof on such Due Date if such Mortgage Loan
had been required to continue to accrue interest (exclusive, however, of Default
Interest and, in the case of an ARD Loan after its Anticipated Repayment Date,
Additional Interest) in accordance with its terms, and to pay principal in
accordance with the amortization schedule (if any) in effect immediately prior
to, and without regard to the occurrence of, such maturity date. With respect to
any REO Loan, for any Due Date as of which the related REO Property remains part
of the Trust Fund, the scheduled monthly payment of principal and/or interest
deemed to be due in respect thereof on such Due Date equal to the Monthly
Payment (or, in the case of a Balloon Mortgage Loan described in the preceding
sentence of this definition, the Assumed Monthly Payment) that was due (or
deemed due) in respect of the related Mortgage Loan on the last Due Date prior
to its becoming an REO Loan.
"Authenticating Agent": Any authenticating agent appointed pursuant
to Section 8.12 (or, in the absence of any such appointment, the Trustee).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of, without duplication, (i) the aggregate
of the amounts on deposit in the Custodial Account and the Collection Account
with respect to the respective Mortgage Loans and REO Properties as of the close
of business on the related Determination Date, together with any amounts
collected by or on behalf of the Master Servicer with respect to the respective
Mortgage Loans and REO Properties as of the close of business on the related
Determination Date and required to be (but, as of such time, not yet) deposited
in the Custodial Account, (ii) the aggregate amount of any P&I Advances made by
the Master Servicer, the Trustee and/or the Fiscal Agent for distribution on the
Certificates on such Distribution Date pursuant to Section 4.03, (iii) the
aggregate amount transferred from the REO Account (if established) to the
Custodial Account during the month of such Distribution Date, on or prior to the
P&I Advance Date in such month, pursuant to Section 3.16(c), (iv) the aggregate
amount deposited by the Master Servicer in the Collection Account for such
Distribution Date pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls and Section 3.19(d) in connection with a Balloon Payment
Interest Shortfall, (v) in the case of the initial Distribution Date, the amount
of any Initial Deposit delivered by the Depositor to the Trustee on or before
the related P&I Advance Date and (vi) to the extent not included in the amount
described in clause (a)(i) of this definition, if such Distribution Date occurs
during March of any year, the
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aggregate of the Interest Reserve Amounts transferred from the Interest Reserve
Account to the Collection Account in respect of each Interest Reserve Loan for
distribution on such Distribution Date, net of (b) the portion of the amount
described in subclauses (a)(i) and (a)(iii) of this definition that represents
one or more of the following: (i) collected Monthly Payments that are due on a
Due Date following the end of the related Collection Period, (ii) any amounts
payable or reimbursable to any Person from (A) the Custodial Account pursuant to
clauses (ii) through (xv) of Section 3.05(a) or (B) the Collection Account
pursuant to clauses (ii) through (vi) of Section 3.05(b), (iii) Prepayment
Premiums and Yield Maintenance Charges, (iv) Additional Interest collected in
respect of the ARD Loans after their respective Anticipated Repayment Dates, (v)
if such Distribution Date occurs in February of any year or during January of
any year that is not a leap year, the Interest Reserve Amounts with respect to
the Interest Reserve Loans to be withdrawn from the Collection Account and
deposited into the Interest Reserve Account in respect of such Distribution Date
and held for future distribution pursuant to Section 3.04(c), and (vi) any
amounts deposited in the Custodial Account or the Collection Account in error.
"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 Stated Maturity Date
and as to which, in accordance with such terms, the Scheduled Payment due on its
Stated Maturity Date is at least two times larger than the Scheduled Payment due
on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Stated Maturity
Date of such Mortgage Loan.
"Balloon Payment Interest Shortfall": With respect to the Arden
Loan, provided that the related Balloon Payment is made during the Collection
Period in which the related Stated Maturity Date occurs prior to the date
therein that would otherwise have been the normal Due Date for such Mortgage
Loan in such Collection Period, an amount equal to the aggregate of all interest
accrued on the principal portion of such Balloon Payment from the date paid by
the related Mortgagor to but not including the date in such Collection Period
that would otherwise have been the scheduled Due Date for such Mortgage Loan had
the Stated Maturity Date not occurred.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Bayside Loan": That certain Mortgage Loan secured by a Mortgaged
Property identified on the Mortgage Loan Schedule as Bayside.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Book-Entry Non-Registered Certificate": Any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
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"Book-Entry Subordinate Certificate": Any Subordinate Certificate
that constitutes a Book-Entry Certificate.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York or in each of the cities in
which the Corporate Trust Office of the Trustee and the Primary Servicing
Offices of the Master Servicer and the Special Servicer are located, are
authorized or obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the LB Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 1998-C4, as executed by
the Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Factor": With respect to any Class of Regular Interest
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to six places, the numerator of which is the then current Class
Principal Balance or Class Notional Amount, as the case may be, of such Class of
Regular Interest Certificates, and the denominator of which is the Original
Class Principal Balance or Original Class Notional Amount, as the case may be,
of such Class of Regular Interest Certificates.
"Certificate Notional Amount": With respect to any Class X
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the then Certificate Factor for the
Class X Certificates, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Notional Amount thereof.
"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 Principal Balance": With respect to any Principal
Balance Certificate, as of any date of determination, the then outstanding
principal amount of such Certificate equal to the product of (a) the then
Certificate Factor for the Class of Principal Balance Certificates to which such
Certificate belongs, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
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"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a Disqualified
Organization nor a Non-United States Person shall be Holder of a Residual
Interest Certificate for any purpose hereof and, (ii) solely for the purposes of
giving any consent, approval or waiver pursuant to this Agreement that relates
to any of the Depositor, the Master Servicer, the Special Servicer, the Fiscal
Agent or the Trustee in its respective capacity as such (except with respect to
amendments referred to in Section 11.01 hereof, any consent, approval or waiver
by, of or relating to the Dominant Controlling Class Certificateholder or the
Controlling Class Representative and any election, removal or replacement of the
Special Servicer or the Controlling Class Representative pursuant to Section
6.09), any Certificate registered in the name of the Depositor, the Master
Servicer, the Special Servicer, the Fiscal Agent or the Trustee, as the case may
be, or any Certificate registered in the name of any of its Affiliates, 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 that
relates to it has been obtained. The Certificate Registrar shall be entitled to
request and rely upon a certificate of the Depositor, the Master Servicer or the
Special Servicer in determining whether a Certificate is registered in the name
of an Affiliate of such Person. All references herein to "Certificateholders" or
"Holders" 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 "Certificateholder" or "Holder" only the
Person in whose name a Certificate is registered in the Certificate Register.
"Certificateholder Reports": As defined in Section 4.02(a).
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificates": The Class A-1-a, Class A-1-b and Class A-2
Certificates.
"Class A-1-a Certificate": Any one of the Certificates with a "Class
A-1-a" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-1-b Certificate": Any one of the Certificates with a "Class
A-1-b" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class A Principal Distribution Cross-Over Date": The first
Distribution Date as of the commencement of which (i) the Class A-1-a
Certificates, the Class A-1-b Certificates and the Class A-2 Certificates remain
outstanding and (ii) the aggregate of the Class Principal Balances of the Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M and Class N Certificates have been reduced to zero as a result of the
allocation of Realized Losses and Additional Trust Fund Expenses pursuant to
Section 4.04(a).
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class H Certificate": Any of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class K Certificate": Any of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class L Certificate": Any of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class M Certificate": Any of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class N Certificate": Any of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount": As of any date of determination, the then
aggregate of the Component Notional Amounts of all the Components of the Class X
Certificates.
"Class Principal Balance": The aggregate principal amount of any
Class of Principal Balance Certificates outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each such
Class of Certificates shall equal the Original Class Principal Balance thereof.
On each Distribution Date, the Class Principal Balance of each such Class of
Certificates shall be permanently reduced by the amount of any distributions of
principal made thereon on such Distribution Date pursuant to Section 4.01 or
9.01, as applicable, and shall be further permanently reduced by the amount of
any Realized Losses and Additional Trust Fund Expenses deemed allocated thereto
on such Distribution Date pursuant to Section 4.04(a).
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
"Class R-III Certificate": Any one of the Certificates with a "Class
R-III" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a portion of each of the Components, each of
which Components shall constitute a separate "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"Closing Date": November 24, 1998.
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"Code": The Internal Revenue Code of 1986.
"Collection Account": The segregated account or accounts created and
maintained by the Trustee pursuant to Section 3.04(b), which shall be entitled
"[NAME OF TRUSTEE], as Trustee, in trust for the registered holders of LB
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
1998-C4".
"Collection Period": With respect to any Mortgage Loan (or successor
REO Loan) for any Distribution Date, the period commencing on the day
immediately following the Determination Date in the calendar month preceding the
month in which such Distribution Date occurs (or, in the case of the initial
Distribution Date, commencing immediately following the Cut-off Date) and ending
on and including the Determination Date in the calendar month in which such
Distribution Date occurs. References in this Agreement to "Collection Period"
are to the applicable Collection Period for each Mortgage Loan (or successor REO
Loan) and Distribution Date. The Fresno Loan is the only Mortgage Loan with a
unique Collection Period; all of the other Mortgage Loans provide for the same
Collection Period.
"Comparative Financial Status Report": A report substantially
containing the information described in Exhibit N attached hereto and including,
among other things, (a) the occupancy and Debt Service Coverage Ratio for each
Mortgage Loan or the related Mortgaged Property, as applicable, as of the last
day of the calendar month immediately preceding the month in which such report
is prepared and (b) the revenue and net operating income for each of three
periods (to the extent such information is available): (i) the most current
available year-to-date, (ii) each of the previous two full fiscal years, and
(iii) the "base year" (representing the original analysis of information used as
of the Cut-off Date). For the purposes of the Master Servicer's production of
any such report, the Master Servicer may conclusively rely (without independent
verification), absent manifest error, on information provided to it by the
related Mortgage Loan Seller, the related Mortgagor or the Special Servicer (if
other than the Master Servicer or an Affiliate thereof).
"Component": Each of Component X-A-1-a, Component X-A-1-b, Component
X-A-2, Component X-B, Component X-C, Component X-D, Component X-E, Component
X-F, Component X-G, Component X-H, Component X-J, Component X-K, Component X-L,
Component X-M and Component X-N, each constituting a separate "regular interest"
in REMIC III for purposes of the REMIC Provisions. Such Components are
collectively evidenced by the Class X Certificates.
"Component X-A-1-a": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest A-1-a outstanding from time to
time.
"Component X-A-1-b": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest A-1-b outstanding from time to
time.
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"Component X-A-2": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest A-2 outstanding from time to
time.
"Component X-B": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest B outstanding from time to time.
"Component X-C": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest C outstanding from time to time.
"Component X-D": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest D outstanding from time to time.
"Component X-E": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest E outstanding from time to time.
"Component X-F": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest F outstanding from time to time.
"Component X-G": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest G outstanding from time to time.
"Component X-H": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest H outstanding from time to time.
"Component X-J": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest J outstanding from time to time.
"Component X-K": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest K outstanding from time to time.
"Component X-L": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest L outstanding from time to time.
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"Component X-M": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest M outstanding from time to time.
"Component X-N": One of fifteen components of the Class X
Certificates having a Component Notional Amount equal to the Uncertificated
Principal Balance of REMIC II Regular Interest N outstanding from time to time.
"Component Notional Amount": The notional amount on which any of the
Components accrue interest, which, in the case of any Component, as of any date
of determination, is equal to the then current Uncertificated Principal Balance
of the Corresponding REMIC II Regular Interest.
"Controlling Class": As of any date of determination, the
outstanding Class of Principal Balance Certificates that (a) bears the latest
alphabetical Class designation and (b) has a Class Principal Balance which is
greater than 25% of the Original Class Principal Balance of such Class;
provided, however, that if no Class of Principal Balance Certificates has a
Class Principal Balance greater than 25% of its Original Class Principal
Balance, the Controlling Class shall be the outstanding Class of Principal
Balance Certificates bearing the latest alphabetical Class designation. With
respect to determining the Controlling Class, the Class A-1-a, Class A-1-b and
Class A-2 Certificates shall be deemed a single Class of Certificates.
"Controlling Class Representative": As defined in Section 6.09.
"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-LBCMT Series 1998-C4.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the related
Mortgaged Property becoming an REO Property).
"Corresponding REMIC II Regular Interest": With respect to any Class
of Principal Balance Certificates, the REMIC II Regular Interest that has an
alphabetical and, if applicable, numerical designation that is the same as the
alphabetical and, if applicable, numerical Class designation for such Class of
Principal Balance Certificates; and, with respect to any Component of the Class
X Certificates, the REMIC II Regular Interest that has an alphabetical and, if
applicable, numerical designation that, when preceded by "X-", is the same as
the alphabetical and, if applicable, numerical designation for such Component of
the Class X Certificates.
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"Cross-Collateralized Group": Any group of Mortgage Loans that is
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Credit Lease": With respect to each Credit Lease Loan, the lease
agreement between the Mortgagor as lessor and the Tenant as lessee of the
related Mortgaged Property.
"Credit Lease Loan": Each Mortgage Loan that is identified as a
"Credit Lease Loan" on the Mortgage Loan Schedule.
"CSSA Loan File Report": The monthly report in the "CSSA loan file"
format substantially containing the information called for in such format for
the Mortgage Loans, which report shall be substantially in the form attached
hereto as Exhibit L. The initial data for this report shall be provided by the
Depositor.
"CSSA Property File Report": The monthly report in the "CSSA
property file" format substantially containing the information called for in
such format for the Mortgaged Properties, which report shall be substantially in
the form attached hereto as Exhibit M. The initial data for this report shall be
provided by the Depositor.
"Custodial Account": The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled "[NAME OF
MASTER SERVICER], as Master Servicer, in trust for the registered holders of LB
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
1998-C4."
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been appointed or
if such custodian has been so appointed, but the Trustee shall have terminated
such appointment, then the Trustee shall be the Custodian.
"Cut-off Date": With respect to each Mortgage Loan, its Due Date
occurring in November 1998 (or, in the case of any Mortgage Loan originated
during November 1998, its origination date). References in this Agreement to the
"Cut-off Date" are to the applicable Cut-off Date for each Mortgage Loan.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date, net
of all unpaid payments of principal due in respect thereof on or before such
date, whether or not received.
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"Debt Service Coverage Ratio": As defined in and determined in
accordance with the provisions of Exhibit E attached hereto.
"Default Interest": With respect to any Mortgage Loan (or successor
REO Loan), any amounts collected thereon, other than late payment charges,
Prepayment Premiums or Yield Maintenance Charges, that represent penalty
interest (arising out of a default) in excess of (i) interest accrued on the
principal balance of such Mortgage Loan (or successor REO Loan) at the related
Mortgage Rate and (ii) in the case of an ARD Loan after the Anticipated
Repayment Date, any Additional Interest.
"Defaulted Mortgage Loan": A Specially Serviced Mortgage Loan (i)
that is delinquent in an amount equal to at least two Monthly Payments (not
including the Balloon Payment) or is delinquent thirty days or more in respect
of its Balloon Payment, in either case such delinquency to be determined without
giving effect to any grace period permitted by the related Mortgage or Mortgage
Note and without regard to any acceleration of payments under the related
Mortgage and Mortgage Note, or (ii) as to which the Master Servicer or the
Special Servicer has, by written notice to the related Mortgagor, accelerated
the maturity of the indebtedness evidenced by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States Treasury obligations required or permitted to be pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan which requires the related
Mortgagor (or permits the holder of such Mortgage Loan to require the related
Mortgagor) to pledge Defeasance Collateral to such holder in lieu of prepayment.
"Definitive Certificate": As defined in Section 5.03(a).
"Definitive Non-Registered Certificate": Any Non-Registered
Certificate that has been issued as a Definitive Certificate.
"Definitive Subordinate Certificate": Any Subordinate Certificate
that has been issued as a Definitive Certificate.
"Delinquent Loan Status Report": A report substantially containing
the information described in Exhibit Q attached hereto and including, among
other things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, were
(1) delinquent 30-59 days, (2) delinquent 60-89 days, (3) delinquent 90 days or
more, (4) current but specially serviced, or (5) were in foreclosure but were
not REO Property.
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"Depositor": Structured Asset Securities Corporation or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to the Fresno Loan (or any
successor REO Loan), for any Distribution Date, the 10th day of the month in
which such Distribution Date occurs or, if such 10th day is not a Business Day,
the Business Day immediately following. With respect to each other Mortgage Loan
(or successor REO Loan), for any Distribution Date, the 8th day of the month in
which such Distribution Date occurs or, if such 8th day is not a Business Day,
the Business Day immediately preceding. References in this Agreement to
"Determination Date" are to the applicable Determination Date for each Mortgage
Loan (or successor REO Loan) and Distribution Date.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale or lease,
the performance of any construction work thereon or any use of such REO Property
in a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer or any
Sub-Servicer on behalf of the Trustee) shall not be considered to Directly
Operate an REO Property solely because the Trustee (or the Special Servicer or
any Sub-Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs or capital expenditures with respect to such REO
Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or REO
Loan for purposes of allocating any Prepayment Premium or Yield Maintenance
Charge received thereon or with respect thereto among the respective Classes of
the Principal Balance Certificates (other than any Excluded Class thereof), an
amount equal to the yield (when compounded monthly) on the U.S. Treasury issue
(primary issue) with a maturity date closest to the maturity date for such
prepaid Mortgage Loan or REO Loan. In the event there are two such U.S. Treasury
issues (a) with the same coupon, the issue with the lower yield shall apply, and
(b) with maturity dates equally close to the maturity date for the prepaid
Mortgage Loan or REO Loan, the issue with the earliest maturity date shall
apply.
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"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Trustee or the REMIC Administrator based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Residual Interest
Certificate by such Person may cause the Trust Fund 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
Interest 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 Class of
Regular Interest Certificates for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (to not less than zero) by that portion, if any, of the Net Aggregate
Prepayment Interest Shortfall for such Distribution Date allocated to such Class
of Certificates as provided below. The Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated to the
respective Classes of Regular Interest Certificates on such Distribution Date as
follows: first, to the respective Classes of Regular Interest Certificates
(other than the Senior Certificates), sequentially in reverse alphabetical order
of Class designation, in each case up to an amount equal to the lesser of any
remaining unallocated portion of such Net Aggregate Prepayment Interest
Shortfall and any Accrued Certificate Interest in respect of the particular
Class of Certificates for such Distribution Date; and, thereafter, if and to the
extent that any portion of such Net Aggregate Prepayment Interest Shortfall
remains unallocated, among the respective Classes of Senior Certificates, up to,
and pro rata in accordance with, the respective amounts of Accrued Certificate
Interest for each such Class of Senior Certificates for such Distribution Date.
"Distributable Component Interest": With respect to any Component of
the Class X Certificates for any Distribution Date, the Accrued Component
Interest in respect of such Component for such Distribution Date, reduced (to
not less than zero) by the product of (i) the entire portion, if any, of the Net
Aggregate Prepayment Interest for such Distribution Date that was allocated to
the Class X Certificates in accordance with the definition of "Distributable
Certificate Interest", multiplied by (ii) a fraction, the numerator of which is
the Accrued Component Interest in respect of such Component for such
Distribution Date, and the denominator of which is the Accrued Certificate
Interest in respect of the Class X Certificates for such Distribution Date.
"Distribution Date": The 15th day of any month, or if such 15th day
is not a Business Day, the Business Day immediately following, commencing in
December 1998.
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"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Dominant Controlling Class Certificateholder": As of any date of
determination, any single Holder of Certificates of the Controlling Class
entitled to greater than 50% of the Voting Rights allocated to such Class;
provided, however, that, if there is no single Holder of Certificates of the
Controlling Class entitled to greater than 50% of the Voting Rights allocated to
such Class, then the Dominant Controlling Class Certificateholder shall be the
single Holder of Certificates of the Controlling Class with the largest
percentage of Voting Rights allocated to such Class.
"Due Date": With respect to: (i) any Mortgage Loan on or prior to
its Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Mortgage Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, the long-term
deposit or unsecured debt obligations of which are rated "A2" by Moody's and "A"
by S&P (or, in the case of either Rating Agency, such lower rating as will not
result in qualification, downgrade or withdrawal of any of the ratings then
assigned to the Certificates by such Rating Agency, as evidenced in writing by
such Rating Agency) at any time such funds are on deposit therein (if such funds
are to be held for more than 30 days), or the short-term deposits of which are
rated "P-1" by Moody's and "A-1" by S&P (or, in the case of either Rating
Agency, such lower rating as will not result in qualification, downgrade or
withdrawal of the ratings then assigned to the Certificates by such Rating
Agency, as evidenced in writing by such Rating Agency), at any time such funds
are on deposit therein (if such funds are to be held for 30 days or less), or
(ii) a segregated trust account or accounts maintained with a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity, which, in the case of a state chartered depository institution or
trust company, is subject to regulations regarding fiduciary funds on deposit
therein substantially similar to 12 CFR ss. 9.10(b), having in either case a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authority, or (iii) any other account, the
use of which would not, in and of itself, cause a qualification, downgrade or
withdrawal of the then-current rating assigned by either Rating Agency to any
Class of Certificates, as confirmed in writing by each Rating Agency whose
rating criteria specified in clause (i) of this definition has not been
satisfied.
"Environmental Assessment": A "Phase I assessment" as described in
and meeting the criteria of Chapter 5 of the FNMA Multifamily Guide and an ASTM
Standard for Environmental Site Assessments, each as amended from time to time.
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"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and other items for which an escrow has been created in respect of
the related Mortgaged Property.
"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.
"Excluded Classes": The Class H Certificates, Class J Certificates,
Class K Certificates, Class L Certificates, Class M Certificates and Class N
Certificates.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"FHLMC": The Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date": The Distribution Date on which the final
distribution is to be made with respect to the Certificates in connection with a
termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Mortgage Loan or REO Property (other than a
Mortgage Loan that was paid in full and other than a Mortgage Loan or REO
Property, as the case may be, that was purchased by the Depositor pursuant to
Section 2.03, by the Dominant Controlling Class Certificateholder pursuant to
Section 3.18(b), by the Master Servicer or the Special Servicer pursuant to
Section 3.18(c) or by the Depositor, the Master Servicer, the Special Servicer,
the Underwriter or the Dominant Controlling Class Certificateholder pursuant to
Section 9.01) that there has been a recovery of all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries that the Special Servicer
has determined, in accordance with the Servicing Standard, will be ultimately
recoverable.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking
corporation, or its successor in interest, in its capacity as fiscal agent
hereunder, or any successor fiscal agent appointed as herein provided.
"FNMA": The Federal National Mortgage Association or any successor.
"Fresno Loan": That certain Mortgage Loan secured by a Mortgaged
Property identified on the Mortgage Loan Schedule as Fresno.
"Global Opinion": As defined in Section 11.12.
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"Grantor Trust": That certain "grantor trust" (within the meaning of
the Grantor Trust Provisions), the assets of which are the Grantor Trust Assets.
"Grantor Trust Assets": Any Additional Interest collected with
respect to an ARD Loan after its Anticipated Repayment Date.
"Grantor Trust Provisions": Subpart E of Subchapter J of the Code.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged Property, the lease
agreement creating such leasehold interest.
"Group 1 Mortgage Loan": Any Mortgage Loan designated as belonging
to Loan Group 1 on the Mortgage Loan Schedule.
"Group 2 Mortgage Loan": Any Mortgage Loan designated as belonging
to Loan Group 2 on the Mortgage Loan Schedule.
"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 now existing or hereafter enacted, and specifically
including, without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and petroleum products
and urea formaldehyde.
"Historical Loan Modification Report": A report containing
substantially the information described in Exhibit R attached hereto, and
setting forth, among other things, those Mortgage Loans which, as of the close
of business on the Determination Date immediately preceding the preparation of
such report, have been modified pursuant to this Agreement (i) during the
Collection Period ending on such Determination Date and (ii) since the Cut-off
Date, showing the original and the revised terms thereof.
"Historical Loss Estimate Report": A report substantially containing
the information described in Exhibit S attached hereto, and setting forth, among
other things, as of the close of business on the Determination Date immediately
preceding the preparation of such report, (i) the aggregate amount of
Liquidation Proceeds and expenses relating to each Final Recovery Determination
made, both during the Collection Period ending on such Determination Date and
historically, and (ii) the amount of Realized Losses occurring during such
Collection Period and historically, set forth on a Mortgage Loan-by-Mortgage
Loan basis.
"Holder": A Certificateholder.
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"HUD-Approved Servicer": A servicer that is a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 203, 207 and
211 of the National Housing Act.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, each Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Dominant Controlling
Class Certificateholder and any and all Affiliates thereof, (ii) does not have
any direct financial interest in or any material indirect financial interest in
any of the Depositor, either Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Dominant Controlling Class Certificateholder or any
Affiliate thereof, and (iii) is not connected with the Depositor, either
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Dominant
Controlling Class 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, a Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Dominant Controlling Class 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 Master Servicer,
the Special Servicer or any Affiliate thereof, as the case may be.
"Independent Appraiser": An Independent professional real estate
appraiser who (i) is a member in good standing of the Appraisal Institute, (ii)
if the state in which the subject Mortgaged Property is located certifies or
licenses appraisers, is certified or licensed in such state, and (iii) has a
minimum of five years experience in the subject property type and market.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I 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 percent 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 Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, delivered to the
Trustee), so long as REMIC I does not receive or derive any income from such
Person and provided that the relationship between such Person and REMIC I is at
arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or any other Person upon receipt by the Trustee of an Opinion of
Counsel, which shall be at no expense to the Master Servicer, the Special
Servicer, the Trustee 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.
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"Initial Deposit": With respect to each and every Mortgage Loan
originated during the calendar month of November 1998, provided that the related
Mortgagor is not required to pay a full month's interest on the related Due Date
in December 1998, an amount that, when combined with the interest portion of the
related Monthly Payment scheduled to be due in respect of such Mortgage Loan
during December 1998, will be sufficient to pay a full month's interest on such
Mortgage Loan (net of related Master Servicing Fees).
"Inland Loan": That certain Mortgage Loan secured by a Mortgaged
Property identified on the Mortgage Loan Schedule as Inland.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property, released to the Mortgagor, or any tenants or ground lessors,
as the case may be, pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II Regular
Interest, any Class of Regular Interest Certificates or any particular Component
of the Class X Certificates, in each case consisting of one of the following:
(i) a 360-day year consisting of twelve 30-day months; (ii) actual number of
days elapsed in a 360-day year; (iii) actual number of days elapsed in a 365-day
year; or (iv) actual number of days elapsed in an actual calendar year (taking
account of leap year).
"Interest Accrual Period": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest, any Class of Regular Interest
Certificates or any particular Component of the Class X Certificates, for any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, any Holder of a Certificate, or any Affiliate of any such Person.
"Interest Reserve Account": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) in trust for
Certificateholders, which shall be entitled "[NAME OF TRUSTEE], as Trustee, in
trust for the registered holders of LB Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 1998-C4".
"Interest Reserve Amount": With respect to each Interest Reserve
Loan and each Distribution Date that occurs during February of each year and
during January of each year that is not a leap year, an amount equal to
one-day's interest accrued at a per annum rate equal to 31/30 of the related
Mortgage Rate (net of the Administrative Cost Rate) on the related Stated
Principal
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Balance as of the Due Date in the month in which such Distribution Date occurs
(but prior to the application of any amounts due on such Due Date), to the
extent that a Monthly Payment is received in respect thereof for such Due Date
as of the related Determination Date or a P&I Advance is made in respect thereof
for such Due Date on the related P&I Advance Date.
"Interest Reserve Loan": Any Actual/360 Mortgage Loan.
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than Default Interest,
whether as payments, Insurance Proceeds, Liquidation Proceeds or otherwise,
which represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of such Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period, or on a Due Date coinciding with or preceding the Cut-off
Date, and not previously recovered. With respect to any REO Loan, all amounts
received in connection with the related REO Property during any Collection
Period, whether as Insurance Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the predecessor Mortgage Loan or of an Assumed
Monthly Payment in respect of such REO Loan due or deemed due on a Due Date in a
previous Collection Period and not previously recovered.
"LBHI": Lehman Brothers Holdings Inc., doing business as Lehman
Capital, a Division of Lehman Brothers Holdings Inc., or its successor in
interest.
"LBHI Mortgage Loan": Any of the Mortgage Loans sold by LBHI to the
Depositor on the Closing Date pursuant to the LBHI/Depositor Mortgage Loan
Purchase Agreement.
"LBHI/Depositor Mortgage Loan Purchase Agreement": That certain
Mortgage Loan Purchase Agreement dated as of November 17, 1998, between LBHI and
the Depositor.
"Lease Enhancement Policy": An insurance policy that provides,
subject to customary exclusions, that in the event of a permitted termination or
abatement of a Credit Lease by the Credit Tenant as a result of a casualty or
condemnation, the insurer under such policy will be required to make a specified
insurance payment.
"Legal Final Distribution Date": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest, any Class of Regular Interest
Certificates or any particular Component of the Class X Certificates, the
"latest possible maturity date" thereof, calculated solely for purposes of
satisfying Treasury regulation section 1.860G-1(a)(4)(iii).
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"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 Depositor pursuant to Section 2.03; or (iv) such
Mortgage Loan is purchased by the Dominant Controlling Class Certificateholder
pursuant to Section 3.18(b), by the Master Servicer or the Special Servicer
pursuant to Section 3.18(c), or by the Depositor, the Master Servicer, the
Special Servicer, the Underwriter or the Dominant Controlling Class
Certificateholder 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 Depositor, the Master Servicer, the Special
Servicer, the Underwriter or the Dominant Controlling Class Certificateholder
pursuant to Section 9.01.
"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan or REO Property (other than any Specially Serviced Mortgage Loan or REO
Property (i) repurchased by the Depositor pursuant to Section 2.03 within 180
days of the Depositor's notice or discovery of the Breach or Document Defect
giving rise to such repurchase obligation, (ii) purchased by the Dominant
Controlling Class Certificateholder pursuant to Section 3.18(b), (iii) purchased
by the Master Servicer or the Special Servicer pursuant to Section 3.18(c), or
(iv) purchased by the Depositor, the Master Servicer, the Special Servicer, the
Underwriter or the Dominant Controlling Class Certificateholder pursuant to
Section 9.01), the fee designated as such and payable to the Special Servicer
pursuant to Section 3.11(c).
"Liquidation Fee Rate: With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the terms of the related Mortgage; (ii) 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; (iii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iv) the
purchase of a Defaulted Mortgage Loan by the Dominant Controlling Class
Certificateholder pursuant to Section 3.18(b) or by the Master Servicer or the
Special Servicer pursuant to Section 3.18(c) or any other sale thereof pursuant
to Section 3.18(d); (v) the repurchase of a Mortgage Loan by the Depositor
pursuant to Section 2.03; or (vi) the purchase of a Mortgage Loan or REO
Property by the Depositor, the Master Servicer, the Special Servicer, the
Underwriter or the Dominant Controlling Class Certificateholder pursuant to
Section 9.01.
"Loan Group": Either of Loan Group 1 or Loan Group 2.
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"Loan Group 1": The group of Mortgage Loans so designated on the
Mortgage Loan Schedule.
"Loan Group 1 Distribution Amount": With respect to any Distribution
Date, that portion, if any, of the Available Distribution Amount for such
Distribution Date that is attributable to the Group 1 Mortgage Loans and any
successor REO Loans.
"Loan Group 1 Principal Amounts": With respect to any Distribution
Date, that portion, if any, of the Principal Distribution Amount for such
Distribution Date that is attributable to the Group 1 Mortgage Loans and any
successor REO Loans.
"Loan Group 2": The group of Mortgage Loans so designated on the
Mortgage Loan Schedule.
"Loan Group 2 Distribution Amount": With respect to any Distribution
Date, that portion, if any, of the Available Distribution Amount for such
Distribution Date that is attributable to the Group 2 Mortgage Loans and any
successor REO Loans.
"Loan Group 2 Principal Amounts": With respect to any Distribution
Date, that portion, if any, of the Principal Distribution Amount for such
Distribution Date that is attributable to the Group 2 Mortgage Loans and any
successor REO Loans.
"Loan Payoff Notification Report": A report containing substantially
the information described in Exhibit V attached hereto, and setting forth for
each Mortgage Loan as to which written notice of anticipated payoff has been
received as of the Determination Date immediately preceding the preparation of
such report, among other things, the control number, the property name, the
amount of principal expected to be paid, the expected date of payment and the
estimated amount of Yield Maintenance Charge or Prepayment Premium due.
"Lockout Period": With respect to any Mortgage Note that prohibits
the Mortgagor from prepaying such Mortgage Loan until a date specified in such
Mortgage Note, the period from the Closing Date until the such specified date.
"LUBS": LUBS Inc. or its successor in interest.
"LUBS Mortgage Loan": Any of the Mortgage Loans sold by LUBS to the
Depositor on the Closing Date pursuant to the LUBS/Depositor Mortgage Loan
Purchase Agreement.
"LUBS/Depositor Mortgage Loan Purchase Agreement": That certain
Mortgage Loan Purchase Agreement dated as of November 17, 1998, between LUBS and
the Depositor.
"Mansards Loan": That certain Mortgage Loan secured by a Mortgaged
Property identified on the Mortgage Loan Schedule as Mansards Apartment
Community.
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"Master Servicer": First Union National Bank or its successor in
interest, in its capacity as master servicer hereunder, or any successor master
servicer appointed as herein provided.
"Master Servicing Fee": With respect to each Mortgage Loan and REO
Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the
rate per annum designated as the "Master Servicing Fee Rate" with respect to
such Mortgage Loan on the Mortgage Loan Schedule.
"Memorandum": The final Private Placement Memorandum dated November
17, 1998, relating to the Non-Registered Certificates delivered by the Depositor
to the Underwriter as of the Closing Date.
"Monthly Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled monthly payment (or, in the case of an ARD Loan after its
Anticipated Repayment Date, the minimum required monthly payment) of principal
and/or interest on such Mortgage Loan, including any Balloon Payment, that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, waiver or amendment granted or agreed
to by the Special Servicer pursuant to Section 3.20); provided that the Monthly
Payment due in respect of any ARD Loan after its Anticipated Repayment Date
shall not include Additional Interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Fiscal
Agent, the Master Servicer and the Special Servicer, and specific ratings of
Moody's Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust, deed to secure debt or similar instrument that secures the Mortgage Note
and creates a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, collectively the
following documents:
(i) the original executed Mortgage Note, endorsed (without recourse,
representation or warranty, express or implied) to the order of LaSalle
National Bank, as trustee for the registered holders of LB Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
1998-C4 or in blank, and further showing a complete, unbroken chain of
endorsement from the originator (if such originator is other than the
related
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Mortgage Loan Seller); or, alternatively, if the original executed
Mortgage Note has been lost, a lost note affidavit and indemnity with a
copy of such Mortgage Note;
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case with evidence of recording
indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with any and
all intervening assignments thereof, in each case with evidence of
recording indicated thereon;
(iv) an original executed assignment, in recordable form, of (a) the
Mortgage, (b) any related Assignment of Leases (if such item is a document
separate from the Mortgage) and (c) any other recorded document relating
to the Mortgage Loan otherwise included in the Mortgage File, in favor of
LaSalle National Bank, as trustee for the registered holders of LB
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 1998-C4;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan, in favor of LaSalle National Bank, as trustee for the
registered holders of LB Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1998-C4;
(vi) originals or copies of any written modification agreements in
those instances where the terms or provisions of the Mortgage or Mortgage
Note have been modified;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued on the date of the origination of such
Mortgage Loan, or, if such policy has not been issued, an irrevocable,
binding commitment to issue such title insurance policy;
(viii) any filed copies (with evidence of filing) of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan or
in favor of any assignee prior to the Trustee (but only to the extent the
related Mortgage Loan Seller had possession of such UCC Financing
Statements prior to the Closing Date) and, if there is an effective UCC
Financing Statement in favor of the related Mortgage Loan Seller on record
with the applicable public office for UCC Financing Statements, an
original UCC-2 or UCC-3 assignment, as appropriate, in form suitable for
filing, in favor of LaSalle National Bank, as trustee for the registered
holders of LB Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 1998-C4;
(ix) an original or copy of any Ground Lease and Ground Lease
estoppels relating to such Mortgage Loan;
(x) an original or copy of any loan agreement;
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(xi) any lock-box agreement or cash management agreement relating to
such Mortgage Loan;
(xii) if such Mortgage Loan is a Credit Lease Loan, an original or
copy of the Credit Lease and Lease Enhancement Policy; and
(xiii) if such Mortgage Loan is a Credit Lease Loan and a Balloon
Loan, an original or copy of the Residual Value Insurance Policy;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clauses
(vi) and (ix)-(xiii) of this definition, shall be deemed to include only such
documents to the extent the Trustee or Custodian has actual knowledge of their
existence.
"Mortgage Loan": Each of the mortgage loans listed on the Mortgage
Loan Schedule and from time to time held in the Trust Fund. As used herein, the
term "Mortgage Loan" includes the related Mortgage Note, Mortgage and other
security documents contained in the related Mortgage File.
"Mortgage Loan Purchase Agreements": The LUBS/Depositor Mortgage
Loan Purchase Agreement and the LBHI/Depositor Mortgage Loan Purchase Agreement.
"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 (and also delivered to the Trustee and the Master Servicer in a
computer readable format). Such list shall set forth the following information
with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) and
name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) the
Stated Maturity Date;
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(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the Administrative Cost Rate;
(x) whether the Mortgage Loan is secured by a Ground Lease;
(xi) the related Mortgage Loan Seller;
(xii) whether the related Mortgage Loan is a Defeasance Loan;
(xiii) whether the related Mortgage Loan is secured by a letter of
credit;
(xiv) whether such Mortgage Loan is an ARD Loan and, if so, the
Anticipated Repayment Date and Additional Interest Rate;
(xv) whether the Mortgage Loan is a Credit Lease Loan and, if
so, the tenant under or guarantor of the related Credit
Lease and the Rated Party;
(xvi) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan;
(xvii) the applicable Loan Group to which such Mortgage Loan
belongs; and
(xviii) whether the Mortgage Loan provides for a lockbox.
"Mortgage Loan Sellers": LBHI and LUBS.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans.
"Mortgage Rate": With respect to any Mortgage Loan (and any
successor REO Loan), 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, as such rate may
be modified in accordance with Section 3.20 or in connection with a bankruptcy,
insolvency or similar proceeding involving the related Mortgagor. In the case of
each ARD Loan, the related Mortgage Rate shall increase in accordance with the
related Mortgage Note if the particular Mortgage Loan is not paid in full by its
Anticipated Repayment Date. Subject to modification in accordance with Section
3.20 or in connection with a bankruptcy, insolvency or
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similar proceeding involving the related Mortgagor, the Mortgage Rate for each
Mortgage Loan shall otherwise be fixed.
"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 Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans (including Specially Serviced
Mortgage Loans) during the related Collection Period, exceeds (b) the aggregate
amount deposited by the Master Servicer in the Collection Account for such
Distribution Date pursuant to Section 3.19(a) in connection with such Prepayment
Interest Shortfalls.
"Net Investment Earnings": With respect to any Investment Account
for any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account, exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for
any Collection Period, the amount by which the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of
funds held in such Investment Account in accordance with Section 3.06, exceeds
the aggregate of all interest and other income realized during such Collection
Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO
Loan, as of any date of determination, a rate per annum equal to the then
related Mortgage Rate minus the sum of the Trustee Fee Rate, the related Master
Servicing Fee Rate and, in the case of an ARD Loan after its Anticipated
Repayment Date, the related Additional Interest Rate.
"Net Operating Income" or "NOI": As defined in and determined in
accordance with the provisions of Exhibit E attached hereto.
"Net Prepayment Consideration": The Prepayment Consideration
received with respect to any Mortgage Loan, net of any Workout Fee or
Liquidation Fee payable therefrom.
"New Lease": Any lease of REO Property entered into on behalf of
REMIC I, including any lease renewed, modified or extended on behalf of REMIC I
if REMIC I has the right to renegotiate the terms of such lease.
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"NOI Adjustment Worksheet": A report prepared by the Special
Servicer with respect to Specially Serviced Mortgaged Loans and REO Loans, and
by the Master Servicer with respect to all other Mortgage Loans, containing
substantially the information described in Exhibit T attached hereto, presenting
the computations made in accordance with the methodology described in Exhibit T
to "normalize" the full year net operating income and debt service coverage
numbers used in the other reports required by this Agreement.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of any Mortgage Loan or REO Loan by the Master
Servicer, the Trustee or the Fiscal Agent with respect to any P&I Advance, that
such party has determined in its reasonable, good faith judgment, will not be
ultimately recoverable from late payments, Insurance Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan or REO
Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property by the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, that
such party has determined, in its reasonable, good faith judgment, will not be
ultimately recoverable from late payments, Insurance Proceeds, Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan or REO
Property.
"Non-Registered Certificate": Any Certificate that has not been
registered under the Securities Act. As of the Closing Date, the Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class R-I, Class R-II
or Class R-III Certificates are Non-Registered Certificates.
"Non-United States Person": Any person other than a United States
Person.
"Officers' Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee or the Fiscal Agent, as the case may be.
"Omni Loan": That certain Mortgage Loan secured by Mortgaged
Properties identified on the Mortgage Loan Schedule as TRT Holdings.
"Ontario Mills Loan": That certain Mortgage Loan secured by
Mortgaged Properties identified on the Mortgage Loan Schedule as Mills.
"Operating Statement Analysis": With respect to each Specially
Serviced Mortgage Loan and REO Property, a report prepared by the Special
Servicer, and with respect to all other Mortgage Loans, a report prepared by the
Master Servicer, substantially containing the information described in Exhibit U
attached hereto.
"Opinion of Counsel": A written opinion of counsel (which counsel
shall be Independent of the Depositor, the Master Servicer and the Special
Servicer) acceptable to and delivered to the Trustee or any other specified
Person, as the case may be; provided that the Opinion of Counsel required by
Section 6.09 may, if Wells Fargo Bank, National Association is designated as a
Special Servicer under such section, be from in-house counsel at Wells Fargo
Bank, National Association.
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"Original Class Notional Amount": With respect to the Class X
Certificates, the initial Class Notional Amount thereof as of the Closing Date,
which is equal to $2,025,590,706.
"Original Class Principal Balance": With respect to any Class of
Principal Balance Certificates, the initial Class Principal Balance thereof as
of the Closing Date, in each case as specified in the Preliminary Statement.
"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.
"Pass-Through Rate": With respect to:
(i) the Class A-1-a Certificates for any Distribution Date, 5.87%
per annum;
(ii) the Class A-1-b Certificates for any Distribution Date, 6.21%
per annum;
(iii) the Class A-2 Certificates for any Distribution Date, 6.30%
per annum;
(iv) the Class B Certificates for any Distribution Date, 6.36% per
annum;
(v) the Class C Certificates for any Distribution Date, 6.50% per
annum;
(vi) the Class D Certificates for any Distribution Date, 6.50% per
annum;
(vii) the Class E Certificates for any Distribution Date, 6.50% per
annum;
(viii) the Class F Certificates for any Distribution Date, 6.00% per
annum;
(ix) the Class G Certificates for any Distribution Date, 5.60% per
annum;
(x) the Class H Certificates for any Distribution Date, 5.60% per
annum;
(xi) the Class J Certificates for any Distribution Date, 5.60% per
annum;
(xii) the Class K Certificates for any Distribution Date, 5.60% per
annum;
(xiii) the Class L Certificates for any Distribution Date, 5.60% per
annum;
(xiv) the Class M Certificates for any Distribution Date, 5.60% per
annum;
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(xv) the Class N Certificates for any Distribution Date, 5.60% per
annum;
(xvi) each Component of the Class X Certificates for any
Distribution Date, the excess, if any, of (A) the Weighted Average REMIC I
Remittance Rate for such Distribution Date, over (B) the fixed
Pass-Through Rate applicable to the Class of Principal Balance
Certificates whose alphabetical (and, if applicable, numerical) Class
designation is included in the designation of such Component; and
(xvii) the Class X Certificates for any Distribution Date, the
weighted average (expressed as a percentage and rounded to six decimal
places) of the respective Pass-Through Rates applicable to all of the
Components of such Class for such Distribution Date, weighted on the basis
of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date.
The Weighted Average REMIC I Remittance Rate referenced above in this definition
is also the REMIC II Remittance Rate for each REMIC II Regular Interest.
"Percentage Interest": With respect to any Regular Interest
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such Certificate
as of the Closing Date, as specified on the face thereof, and the denominator of
which is the Original Class Principal Balance or Original Class Notional Amount,
as the case may be, of the relevant Class. With respect to a Residual Interest
Certificate, the percentage interest in distributions to be made with respect to
the relevant Class, as stated on the face of such Certificate.
"Permitted Investments": Any one or more of the following
obligations or securities (including, without limitation, obligations or
securities of the Trustee if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof (having original maturities of not more
than 365 days), provided such obligations are backed by the full faith and
credit of the United States. Such obligations must be limited to those
instruments that have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index;
(ii) repurchase obligations with respect to any security described
in clause (i) above (having original maturities of not more than 365
days), provided that the short-term deposit or debt obligations, of the
party agreeing to repurchase such obligations are rated in the highest
rating category of each of Moody's and S&P (or, in the case of either
Rating Agency, such lower rating as will not result in qualification,
downgrade or withdrawal of any
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of the ratings then assigned to the Certificates by such Rating Agency, as
evidenced in writing by such Rating Agency). In addition, any such item by
its terms must have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized under the laws
of the United States or any state thereof (having original maturities of
not more than 365 days), the short term obligations of which are rated in
the highest rating category of each of Moody's and S&P (or, in the case of
either Rating Agency, such lower rating as will not result in
qualification, downgrade or withdrawal of any of the ratings then assigned
to the Certificates by such Rating Agency, as evidenced in writing by such
Rating Agency). In addition, any such item by its terms must have a
predetermined fixed dollar amount of principal due at maturity that cannot
vary or change. Interest may either be fixed or variable. If such interest
is variable, interest must be tied to a single interest rate index plus a
single fixed spread (if any), and move proportionately with that index;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof (or if not so incorporated, the commercial
paper is United States Dollar denominated and amounts payable thereunder
are not subject to any withholding imposed by any non-United States
jurisdiction) which is rated in the highest rating category of each of
Moody's and S&P (or, in the case of either Rating Agency, such lower
rating as will not result in qualification, downgrade or withdrawal of any
of the ratings then assigned to the Certificates by such Rating Agency, as
evidenced in writing by such Rating Agency). In addition, such commercial
paper by its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest may either
by fixed or variable. If such interest is variable, interest must be tied
to a single interest rate index plus a single fixed spread (if any), and
move proportionately with that index;
(v) units of money market funds rated "AAAm" or "AAAm-G" by S&P and
rated in the highest applicable rating category of Moody's (or, in the
case of either Rating Agency, such lower rating as will not result in
qualification, downgrade or withdrawal of any of the ratings then assigned
to the Certificates by such Rating Agency, as evidenced in writing by such
Rating Agency) and which seeks to maintain a constant net asset value; and
(vi) any other obligation or security that (A) is acceptable to each
Rating Agency, evidence of which acceptability shall be provided in
writing by each Rating Agency to the Master Servicer, the Special Servicer
and the Trustee and (B) constitutes a "cash flow investment" (within the
meaning of the REMIC Provisions), as evidenced by an Opinion of Counsel
obtained at the expense of the Person that wishes to include such
obligation or security as a Permitted Investment;
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provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; (2) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity; and (3) no
investment described hereunder may have a "r" highlighter or other comparable
qualifier attached to its rating.
"Permitted Transferee": Any Transferee of a Residual Interest
Certificate other than a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer, the Trustee or the Fiscal Agent pursuant to Section
4.03.
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Interest Certificateholder": As to any taxable
year of REMIC I, REMIC II or REMIC III, the Holder of Certificates entitled to
the largest percentage of the Voting Rights allocated to the related Class of
Residual Interest Certificates.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus), except that it is assumed that each ARD Loan is repaid on its
Anticipated Repayment Date.
"Prepayment Consideration": Any Prepayment Premium or Yield
Maintenance Charge.
"Prepayment Consideration Entitlement": Depending on the Class of
Principal Balance Certificates and whether the prepaid Mortgage Loan (or
successor REO Loan) is a Group 1 Mortgage Loan (or successor REO Loan) or a
Group 2 Mortgage Loan (or successor REO Loan), the following amounts:
(a) with respect to any Class of Class A Certificates in respect of
84% of any Net Prepayment Consideration received in respect of any Group 1
Mortgage Loan (or successor REO Loan), provided that distributions are
being made pursuant to Section 4.01(a)(i) or Section 4.01(a)(iii) on the
Distribution Date on which such Net Prepayment Consideration
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is to be distributed, the product of (i) 84% of such Net Prepayment
Consideration, multiplied by (ii) a fraction (not greater than 1.0 or less
than 0.0), the numerator of which is equal to the excess, if any, of the
Pass-Through Rate of the Class A-1-b Certificates (or, in the case of the
Class A-1-a Certificates, the Pass-Through Rate for the Class A-1-a
Certificates) over the relevant Discount Rate, and the denominator of
which is equal to the excess, if any, of the Mortgage Rate for such
Mortgage Loan (or REO Loan) over the relevant Discount Rate, multiplied by
(iii) a fraction, the numerator of which is equal to the aggregate of all
distributions of principal to be made pursuant to Section 4.01(a)(i) or
Section 4.01(a)(iii), as the case may be, in respect of such Class of
Class A Certificates on such Distribution Date, and the denominator of
which is equal to 84% of the Loan Group 1 Principal Amounts for such
Distribution Date;
(b) with respect to any Class of Class A Certificates in respect of
16% of any Net Prepayment Consideration received in respect of any Group 1
Mortgage Loan (or successor REO Loan), provided that distributions are
being made pursuant to Section 4.01(a)(ii) or Section 4.01(a)(iii) on the
Distribution Date on which such Net Prepayment Consideration is to be
distributed, the product of (i) 16% of such Net Prepayment Consideration,
multiplied by (ii) a fraction (not greater than 1.0 or less than 0.0), the
numerator of which is equal to the excess, if any, of the Pass-Through
Rate of the Class A-2 Certificates over the relevant Discount Rate, and
the denominator of which is equal to the excess, if any, of the Mortgage
Rate for such Mortgage Loan (or REO Loan) over the relevant Discount Rate,
multiplied by (iii) a fraction, the numerator of which is equal to the
aggregate of all distributions of principal to be made pursuant to Section
4.01(a)(ii) or Section 4.01(a)(iii), as the case may be, in respect of
such Class of Class A Certificates on such Distribution Date, and the
denominator of which is equal to the aggregate of 16% of the Loan Group 1
Principal Amounts for such Distribution Date and 100% of the Loan Group 2
Principal Amounts for such Distribution Date;
(c) with respect to any Class of Class A Certificates in respect of
100% of any Net Prepayment Consideration received in respect of any Group
2 Mortgage Loan (or successor REO Loan, provided that distributions are
being made pursuant to Section 4.01(a)(ii) or Section 4.01(a)(iii) on the
Distribution Date on which such Net Prepayment Consideration is to be
distributed, the product of (i) 100% of such Net Prepayment Consideration,
multiplied by (ii) a fraction (not greater than 1.0 or less than 0.0), the
numerator of which is equal to the excess, if any, of the Pass-Through
Rate of the Class A-2 Certificates over the relevant Discount Rate, and
the denominator of which is equal to the excess, if any, of the Mortgage
Rate for such Mortgage Loan (or REO Loan) over the relevant Discount Rate,
multiplied by (iii) a fraction, the numerator of which is equal to the
aggregate of all distributions of principal to be made pursuant to Section
4.01(a)(ii) or Section 4.01(a)(iii), as the case may be, in respect of
such Class of Class A Certificates on such Distribution Date, and the
denominator of which is equal to the aggregate of 16% of the Loan Group 1
Principal Amounts for such Distribution Date and 100% of the Loan Group 2
Principal Amounts for such Distribution Date;
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(d) with respect to any Class of Class A Certificates in respect of
100% of any Net Prepayment Consideration received in respect of each and
every Mortgage Loan (and successor REO Loan), provided that distributions
are being made pursuant to Section 4.01(a)(iii) or Section 9.01 on the
Distribution Date on which such Net Prepayment Consideration is to be
distributed, the product of (i) 100% of such Net Prepayment Consideration,
multiplied by (ii) a fraction (not greater than 1.0 or less than 0.0), the
numerator of which is equal to the excess, if any, of the Pass-Through
Rate of such Class of Certificates over the relevant Discount Rate, and
the denominator of which is equal to the excess, if any, of the Mortgage
Rate for such Mortgage Loan (or REO Loan) over the relevant Discount Rate,
multiplied by (iii) a fraction, the numerator of which is equal to the
aggregate of all distributions of principal to be made pursuant to Section
4.01(a)(iii) or Section 9.01, as the case may be, in respect of such Class
of Class A Certificates on such Distribution Date, and the denominator of
which is equal to the Principal Distribution Amount for such Distribution
Date; and
(e) with respect to any other Class of Principal Balance
Certificates senior to the Class H Certificates, in respect of 100% of any
Net Prepayment Consideration received in respect of each and every
Mortgage Loan (and successor REO Loan), the product of (i) 100% of such
Net Prepayment Consideration, multiplied by (ii) a fraction (not greater
than 1.0 or less than 0.0), the numerator of which is equal to the excess,
if any, of the Pass-Through Rate of such Class of Certificates over the
relevant Discount Rate, and the denominator of which is equal to the
excess, if any, of the Mortgage Rate for such Mortgage Loan (or REO Loan)
over the relevant Discount Rate, multiplied by (iii) a fraction, the
numerator of which is equal to the aggregate of all distributions of
principal to be made pursuant to Section 4.01(b) or Section 9.01, as the
case may be, in respect of such Class of Principal Balance Certificates on
the Distribution Date on which such Net Prepayment Consideration is to be
distributed, and the denominator of which is equal to the Principal
Distribution Amount for such Distribution Date.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part made after its Due Date
in any Collection Period, any payment of interest (net of related Master
Servicing Fees) actually collected from the related Mortgagor and intended to
cover interest accrued on such Principal Prepayment during the period from and
after such Due Date (exclusive, however, of any related Prepayment Premium or
Yield Maintenance Charge that may have been collected and, in the case of an ARD
Loan after its Anticipated Repayment Date, of any Additional Interest).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part made prior to its
Due Date in any Collection Period, the amount of interest, to the extent not
collected from the related Mortgagor (without regard to any Prepayment Premium
or Yield Maintenance Charge that may have been collected), that would have
accrued at a rate per annum equal to the related Net Mortgage Rate plus the
Trustee Fee Rate on the
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amount of such Principal Prepayment during the period from the date to which
interest was paid by the related Mortgagor to, but not including, such Due Date.
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Primary Servicing Office": The offices of the Master Servicer or
the Special Servicer, as the context may require, that are primarily responsible
for such party's servicing obligations hereunder. As of the Closing Date, the
Primary Servicing Office of the Master Servicer is located at Charlotte Plaza,
23rd Floor, 201 South College Street, Charlotte, North Carolina 28288-1075, and
the Primary Servicing Office of the Special Servicer is located at 700 N.W.
107th Avenue, Suite 400, Miami, Florida 33172.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate", then the
Trustee shall select an equivalent publication that publishes such "prime rate";
and if such "prime rate" is no longer generally published or is limited,
regulated or administered by a governmental or quasi-governmental body, then the
Trustee shall select a comparable interest rate index. In either case, such
selection shall be made by the Trustee in its sole discretion and the Trustee
shall notify the Fiscal Agent, the Master Servicer and the Special Servicer in
writing of its selection.
"Principal Balance Certificate": Any Regular Interest Certificate
(other than a Class X Certificate).
"Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to the aggregate (without duplication) of the following:
(a) the aggregate of all payments of principal (other than Principal
Prepayments) received on the Mortgage Loans during the related Collection
Period, in each case net of any portion of the particular payment that
represents a Late Collection of principal for which a P&I Advance was
previously made for a prior Distribution Date or that represents the
principal portion of a Monthly Payment due on or before the Cut-off Date
or on a Due Date subsequent to the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, that were received prior
to the related Collection Period;
(c) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
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(d) the aggregate of all Liquidation Proceeds and Insurance Proceeds
received on the Mortgage Loans during the related Collection Period that
were identified and applied by the Master Servicer as recoveries of
principal of such Mortgage Loans, in each case net of any portion of such
proceeds that represents a Late Collection of principal due on or before
the Cut-off Date or for which a P&I Advance was previously made for a
prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Insurance Proceeds
and REO Revenues received in respect of any REO Properties during the
related Collection Period that were identified and applied by the Master
Servicer as recoveries of principal of the related REO Loans, in each case
net of any portion of such proceeds and/or revenues that represents a Late
Collection of principal due on or before the Cut-off Date or for which a
P&I Advance was previously made for a prior Distribution Date; and
(f) the aggregate of the principal portions of all P&I Advances made
in respect of the Mortgage Loans and any REO Loans with respect to such
Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date and that is not accompanied by an amount of interest (without regard to any
Prepayment Premium or Yield Maintenance Charge that may have been collected)
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated November 17, 1998, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement": The prospectus supplement dated November
17, 1998 relating to the Registered Certificates.
"Purchase Price": With respect to any Mortgage Loan (or REO
Property), a cash price equal to the aggregate of: (a) the outstanding principal
balance of such Mortgage Loan (or the related REO Loan) as of the date of
purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Loan) at the related Mortgage Rate to, but not including, the Due
Date in the Collection Period of purchase (exclusive, however, of any portion of
such accrued but unpaid interest that represents Default Interest or, in the
case of an ARD Loan after its Anticipated Repayment Date, Additional Interest),
(c) all related unreimbursed Servicing Advances, and (d) solely in the case of a
purchase by the Depositor pursuant to Section 2.03, all accrued and unpaid
interest in respect of related Advances and any costs of enforcing the
repurchase obligation against the Depositor.
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"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rated Final Distribution Date": The Distribution Date in October
2035.
"Rated Party": With respect to any Credit Lease (other than the
Credit Leases in respect of the Mortgaged Properties identified on the Mortgage
Loan Schedule as Garden Ridge-Stockbridge and IHOP), the Tenant under such
Credit Lease, the affiliate of such Tenant or the guarantor of such Tenant's
obligations under such Credit Lease, as applicable, that as of the Closing Date
has long-term senior unsecured debt obligations or long-term senior unsecured
credit facilities, as the case may be, that have been assigned, as of the
Closing Date, a public rating of at least "BB" (or the equivalent) by each
Rating Agency, which Person is identified on the Mortgage Loan Schedule.
"Rating Agency": Each of Moody's and S&P.
"Realized Loss": With respect to: (1) each Mortgage Loan as to which
a Final Recovery Determination has been made, or with respect to any successor
REO Loan as to which a Final Recovery Determination has been made as to the
related REO Property, an amount (not less than zero) equal to (a) the unpaid
principal balance of such Mortgage Loan or REO Loan, as the case may be, as of
the commencement of the Collection Period in which the Final Recovery
Determination was made, plus (b) without taking into account the amount
described in subclause (1)(d) of this definition, all accrued but unpaid
interest on such Mortgage Loan or such REO Loan, as the case may be, to but not
including the Due Date in the Collection Period in which the Final Recovery
Determination was made (exclusive, however, of any portion of such accrued but
unpaid interest that represents Default Interest or, in the case of an ARD Loan
after its Anticipated Repayment Date, Additional Interest), plus (c) any related
unreimbursed Servicing Advances as of the commencement of the Collection Period
in which the Final Recovery Determination was made, together with any new
related Servicing Advances made during such Collection Period, minus (d) all
payments and proceeds, if any, received in respect of such Mortgage Loan or the
REO Property that relates to such REO Loan, as the case may be, during the
Collection Period in which such Final Recovery Determination was made; (2) each
Mortgage Loan as to which any portion of the principal or previously accrued
interest payable thereunder was canceled in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20, the amount of such principal and/or interest (other
than Default Interest and, in the case of an ARD Loan after its Anticipated
Repayment Date, Additional Interest) so cancelled; and (3) each Mortgage Loan as
to which the Mortgage Rate thereon has been permanently reduced and not
recaptured for any period in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20, the amount of the consequent reduction in the interest portion of each
successive Monthly Payment due thereon (each such Realized Loss shall be deemed
to have been incurred on the Due Date for each affected Monthly Payment).
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"Record Date": With respect to any Distribution Date other than the
initial Distribution Date, the last Business Day of the month immediately
preceding the month in which such Distribution Date occurs, and with respect to
the initial Distribution Date, the Closing Date.
"Registered Certificate": Any Certificate that has been registered
under the Securities Act. As of the Closing Date, the Class A-1-a, Class A-1-b,
Class A-2, Class B, Class C, Class D, Class E and Class X Certificates are
Registered Certificates.
"Regular Interest Certificate": Any REMIC III Certificate other than
a Class R-III Certificate.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest, compounded annually, on Servicing Advances in accordance with
Section 3.03(d) and on P&I Advances in accordance with Section 4.03(d), which
rate per annum is equal to the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": Any REMIC administrator appointed pursuant to
Section 8.13 (or, in the absence of any such appointment, the Trustee).
"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 proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made, and 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
Closing Date (other than scheduled payments of interest and principal due on or
before the Cut-off Date and other than Additional Interest collected in respect
of the ARD Loans after their respective Anticipated Repayment Dates), together
with all documents included in the related Mortgage Files and any related Escrow
Payments and Reserve Funds; (ii) any REO Property acquired in respect of a
Mortgage Loan; and (iii) such funds or assets as from time to time are deposited
in the Custodial Account, the Collection Account, the Interest Reserve Account
and, if established, the REO Account, exclusive of any amounts that represent
Additional Interest collected in respect of the ARD Loans after their respective
Anticipated Repayment Dates.
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
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"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, either: (a) if, based on the terms thereof
in effect as of the Closing Date, the related Mortgage Loan accrued interest on
the basis of a 360-day year consisting of twelve 30-day months, the Net Mortgage
Rate in effect for the related Mortgage Loan as of the Closing Date; and (b) if,
based on the terms thereof in effect as of the Closing Date, the related
Mortgage Loan did not accrue interest on the basis of a 360-day year consisting
of twelve 30-day months, a rate per annum equal to (i) a fraction (expressed as
a percentage), the numerator of which is the product of twelve times the
aggregate amount of interest that would accrue during the related Interest
Accrual Period on the Uncertificated Principal Balance of such REMIC I Regular
Interest outstanding immediately prior to such Distribution Date if such
interest were calculated (A) at the Mortgage Rate in effect for the related
Mortgage Loan as of the Closing Date and (B) on the same Interest Accrual Basis
as is applicable to the related Mortgage Loan, and the denominator of which is
the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to such Distribution Date, minus (ii) the
applicable Administrative Cost Rate; provided that, in the case of a REMIC I
Regular Interest that corresponds to an Interest Reserve Loan, if the subject
Interest Accrual Period occurs during January of any year or during December of
any year that does not immediately precede a leap year, the amount of the
numerator for the fraction described in clause (b)(i) of this definition shall
be reduced by the related Interest Reserve Amount that is to be transferred from
the Collection Account to the Interest Reserve Account in the following calendar
month in accordance with Section 3.04(c) and, if the subject Interest Accrual
Period occurs during February of any year, the amount of the numerator for the
fraction described in clause (b)(i) of this definition shall be increased by any
related Interest Reserve Amount(s) to be transferred from the Interest Reserve
Account to the Collection Account pursuant to Section 3.05(c) for distribution
on the Distribution Date in March of such year.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests conveyed in trust to the Trustee for the benefit of
REMIC III, as holder of the REMIC II Regular Interests, and the Holders of the
Class R-II Certificates pursuant to Section 2.06, with respect to which a
separate REMIC election is to be made.
"REMIC II Regular Interest": Any of the fifteen separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II Regular Interest
shall accrue interest at the REMIC II Remittance Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto. The designations for the respective REMIC II Regular Interests are set
forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate": With respect to each REMIC II Regular
Interest for any Distribution Date, the Weighted Average REMIC I Remittance Rate
for such Distribution Date.
"REMIC III": The segregated pool of assets consisting of all of the
REMIC II Regular Interests conveyed in trust to the Trustee for the benefit of
the Holders of the REMIC III Certificates pursuant to Section 2.08, with respect
to which a separate REMIC election is to be made.
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"REMIC III Certificate": Any Class A-1-a, Class A-1-b, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class X, Class J,
Class K, Class L, Class M, Class N or Class R-III Certificate.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"Replacement Master Servicer": The successor Master Servicer if the
Master Servicer is replaced pursuant to Section 6.12.
"REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "[NAME OF
SPECIAL SERVICER], as Special Servicer, in trust for registered holders of LB
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
1998-C4".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any 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
provide for monthly payments of principal and/or interest equal to its Assumed
Monthly Payment and otherwise to have the same terms and conditions as its
predecessor Mortgage Loan (such terms and conditions to be applied without
regard to the default on such predecessor Mortgage Loan and the acquisition of
the related REO Property as part of the Trust Fund). Each REO Loan shall be
deemed to have an initial unpaid principal balance and Stated Principal Balance
equal to the unpaid principal balance and Stated Principal Balance,
respectively, of its predecessor Mortgage Loan as of the date of the related REO
Acquisition. All Monthly Payments (other than a Balloon Payment), Assumed
Monthly Payments (in the case of a Balloon Mortgage Loan delinquent in respect
of its Balloon Payment) and other amounts due and owing, or deemed to be due and
owing, in respect of the predecessor Mortgage Loan as of the date of the related
REO Acquisition, shall be deemed to continue to be due and owing in respect of
an REO Loan. Collections in respect of each REO Loan (after provision for
amounts to be applied to the payment of, or to be reimbursed to the Master
Servicer or the Special Servicer for the payment of, the costs of operating,
managing and maintaining the related REO Property or for the reimbursement of
the Master Servicer or the Special Servicer for other related Servicing
Advances) shall be treated: first, as a recovery of accrued and unpaid interest
on such REO Loan at the related Mortgage Rate to but not including the Due Date
in the Collection Period of receipt (exclusive, however, in the case of an REO
Loan that relates to an ARD Loan after its Anticipated Repayment Date, of any
such accrued and unpaid interest that constitutes Additional Interest);
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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 normal servicing
practices of the Master Servicer, as a recovery of any other amounts due and
owing in respect of such REO Loan. Notwithstanding the foregoing, all amounts
payable or reimbursable to the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent in respect of the predecessor Mortgage Loan as of
the date of the related REO Acquisition, including, without limitation, any
unpaid Servicing Fees and any unreimbursed Servicing Advances and P&I Advances,
together with any interest accrued and payable to the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent in respect of such Servicing
Advances and P&I Advances in accordance with Sections 3.03(d) and 4.03(d), shall
continue to be payable or reimbursable to the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, in respect of an
REO Loan pursuant to Section 3.05(a).
"REO Property": A Mortgaged Property acquired on behalf 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, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Status Report": A report containing substantially the
information described in Exhibit O attached hereto and including, with respect
to each REO Property that was included in the Trust Fund as of the close of
business on the Determination Date immediately preceding the preparation of such
report, among other things, (i) the Acquisition Date of such REO Property, (ii)
the amount of income collected with respect to such REO Property (net of related
expenses) and other amounts, if any, received on such REO Property during the
Collection Period ending on such Determination Date and (iii) the value of the
REO Property based on the most recent appraisal or other valuation thereof
available to the Special Servicer as of such Determination Date (including any
valuation prepared internally by the Special Servicer).
"REO Tax": As defined in Section 3.17(a)(i).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal Loan,
an appraisal of the related Mortgaged Property from an Independent Appraiser
selected by the party required or authorized to obtain such appraisal hereunder,
which appraisal shall be prepared in accordance with 12 CFR ss.225.62 and
conducted in accordance with the standards of the Appraisal Institute.
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"Required Appraisal Loan": Any Mortgage Loan (i) that is sixty (60)
days or more delinquent in respect of any Monthly Payment, (ii) that becomes an
REO Loan, (iii) that has been modified by the Special Servicer to reduce the
amount of any Monthly Payment (other than a Balloon Payment), (iv) with respect
to which a receiver in bankruptcy is appointed and continues in such capacity in
respect of the related Mortgaged Property, (v) with respect to which the related
Mortgagor is subject to a bankruptcy, insolvency or similar proceedings or (vi)
with respect to which any Balloon Payment on such Mortgage Loan has not been
paid within 20 days following its most recent scheduled maturity date. Any
Required Appraisal Loan shall cease to be such at such time as it has become a
Corrected Mortgage Loan, it has remained current for at least twelve consecutive
Monthly Payments, and no other Servicing Transfer Event has occurred with
respect thereto during such twelve-month period.
"Required Appraisal Value": With respect to any Mortgaged Property
securing a Required Appraisal Loan, an amount equal to 90% of the Appraised
Value (net of any prior liens and estimated liquidation expenses) of such
Mortgaged Property as determined by a Required Appraisal or any letter update of
such Required Appraisal; and provided further that for purposes of determining
any Appraisal Reduction Amount in respect of such Required Appraisal Loan, such
Appraisal Reduction Amount shall be amended annually to reflect the Required
Appraisal Value determined pursuant to any Required Appraisal or letter update
of a Required Appraisal conducted subsequent to the original Required Appraisal
performed pursuant to Section 3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held by or on behalf of the mortgagee
representing reserves for repairs, capital improvements and/or environmental
remediation in respect of the related Mortgaged Property.
"Residual Interest Certificate": A Class R-I, Class R-II or Class
R-III Certificate.
"Residual Value Insurance Policy": With respect to any Credit Lease
Loan that is also a Balloon Mortgage Loan, an insurance policy that insures the
payment of the related Balloon Payment to the extent that the related Mortgaged
Property cannot be sold for such amount at stated maturity because of changes in
market conditions.
"Responsible Officer": When used with respect to the Trustee, the
President, the Treasurer, the Secretary, any Vice President, any Assistant Vice
President, any Trust Officer, any Assistant Secretary or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and having direct responsibility for the
administration of this Agreement. When used with respect to the Fiscal Agent,
any officer or assistant officer thereof.
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"Restricted Servicer Reports": Each of the Watch List, Operating
Statement Analysis, NOI Adjustment Worksheet and Comparative Financial Status
Report.
"S&P": Standard & Poor's Ratings Services, a Division of the
McGraw-Hill Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" shall be deemed to refer to
such other nationally recognized statistical rating agency or other comparable
Person designated by the Depositor, notice of which designation shall be given
to the Trustee, the Fiscal Agent, the Master Servicer and the Special Servicer,
and specific ratings of Standard & Poor's Ratings Services, a Division of the
McGraw-Hill Companies, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-off Date as of which it is outstanding, the Monthly
Payment on such Mortgage Loan that is or would be, as the case may be, payable
by the related Mortgagor on such Due Date under the terms of the related
Mortgage Note as in effect on the Closing Date, without regard to any subsequent
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20, and assuming that the full amount of each prior
Scheduled Payment has been made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1-a, Class A-1-b, Class A-2 or
Class X Certificate.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Master Servicer, the Special
Servicer, the Fiscal Agent or the Trustee in connection with the servicing of a
Mortgage Loan, or in connection with the administration of any REO Property,
including, but not limited to, the cost of (a) compliance with the obligations
of the Master Servicer, the Special Servicer, the Fiscal Agent or the Trustee,
if any, set forth in Section 3.03(c), (b) the preservation, insurance,
restoration, protection and management of a Mortgaged Property, (c) obtaining
any Insurance Proceeds or Liquidation Proceeds, (d) any enforcement or judicial
proceedings with respect to a Mortgaged Property, including, without limitation,
foreclosures, (e) any Required Appraisal or any other appraisal expressly
permitted or required to be obtained hereunder and (f) the operation,
management, maintenance and liquidation of any REO Property; provided that,
notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master Servicer or the Special Servicer, such as costs
for office space, office equipment, supplies and related expenses, employee
salaries and related expenses and similar internal costs and expenses, or costs
and expenses incurred by any such party in connection with its purchase of any
Mortgage Loan or REO Property pursuant to any provision of this Agreement.
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"Servicing Fees": With respect to each Mortgage Loan and REO Loan,
the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File) in the possession of the Master Servicer or
the Special Servicer and relating to the origination and servicing of any
Mortgage Loan, including, without limitation, appraisals, surveys, engineering
reports and environmental reports.
"Servicing Officer": Any officer or employee of the Master 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 such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time.
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, to service and administer the Mortgage Loans for which it is
responsible: (i) with the same care, skill and diligence as is normal and usual
in its general mortgage servicing and asset management activities performed on
behalf of third parties (giving due consideration to customary and usual
standards of practice of prudent institutional commercial lenders) or on behalf
of itself, whichever is higher, in any event with respect to mortgage loans
comparable to the Mortgage Loans; (ii) with a view to the timely collection of
all scheduled payments of principal and interest under the Mortgage Loans or, in
the case of the Special Servicer, if a Mortgage Loan comes into and continues in
default and if, in the reasonable, good faith judgment of the Special Servicer,
no satisfactory arrangements can be made for the collection of the delinquent
payments, the maximization of the recovery on such Mortgage Loan to the
Certificateholders (as a collective whole) on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
the Certificateholders to be performed at the related Mortgage Rate); and (iii)
without regard to (A) any known relationship that the Master Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof may have with the
related borrower; (B) the ownership of any Certificate by the Master Servicer or
the Special Servicer, as the case may be, or any Affiliate thereof; (C) the
obligation of the Master Servicer or the Special Servicer, as the case may be,
to make Advances; (D) the right of the Master Servicer or the Special Servicer,
as the case may be, or any Affiliate of either of them, to receive reimbursement
of costs, or the sufficiency of any compensation payable to it hereunder or with
respect to any particular transaction; and (E) the ownership, servicing or
management of other loans or properties not included in or securing, as the case
may be, the Mortgage Pool.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (g) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Interest Certificates evidencing a $1,000
denomination.
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"Special Servicer": Lennar Partners, Inc. or its successor in
interest, in its capacity as special servicer hereunder, or any successor
special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of the following events has occurred:
(a) the related Mortgagor shall have failed to make any Monthly
Payment and such failure has continued unremedied for 60 days (or, in the
event that (i) the Mortgagor has failed to make a Balloon Payment, (ii)
the Master Servicer has received written evidence (satisfactory to it)
from an institutional lender of such lender's binding commitment to
refinance such Mortgage Loan and (iii) the related Mortgagor has continued
to make monthly payments of principal and interest in an amount at least
equal to the Monthly Payment due on the Due Date immediately preceding the
scheduled maturity date, such failure has continued unremedied for the
lesser of 120 days and the period within which such refinancing was
expected to occur); or
(b) the Master Servicer shall have determined, in its good faith,
reasonable judgment, based on communications with the related Mortgagor,
that a default in the making of a Monthly Payment is likely to occur
within 30 days and is likely to remain unremedied for at least 60 days
(or, in the event that (i) the Mortgagor is expected to default in the
making of a Balloon Payment, (ii) the Master Servicer has received written
evidence from an institutional lender of such lender's binding commitment
to refinance such Mortgage Loan and (iii) the Master Servicer reasonably
expects the related Mortgagor will continue to make monthly payments of
principal and interest in an amount at least equal to the Monthly Payment
due on the Due Date immediately preceding the scheduled maturity date,
such default is likely to remain unremedied for the lesser of 120 days and
the period within which such refinancing is expected to occur); or
(c) there shall have occurred a default (other than as described in
clause (a) above) that materially impairs the value of the Mortgaged
Property as security for the Mortgage Loan or otherwise materially
adversely affects the interests of Certificateholders and that continues
unremedied for the applicable grace period under the terms of the Mortgage
Loan (or, if no grace period is specified, for 30 days); or
(d) 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
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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, shall have been entered against
the related Mortgagor and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or
(e) 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
(f) 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
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan when a Liquidation Event has occurred with respect to such
Mortgage Loan, when the related Mortgaged Property has become an REO Property
or, so long as at such time no circumstance identified in clauses (a) through
(g) above exists that would cause the Mortgage Loan to continue to be
characterized as a Specially Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a)
above, the related Mortgagor has made three consecutive full
and timely Monthly Payments under the terms of such Mortgage
Loan (as such terms may be changed or modified in connection
with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, waiver or amendment
granted or agreed to by the Special Servicer pursuant to
Section 3.20);
(x) with respect to the circumstances described in clauses (b),
(d), (e) and (f) above, such circumstances cease to exist in
the good faith, reasonable judgment of the Special Servicer,
but, with respect to any bankruptcy or insolvency proceedings
described in clauses (d), (e) and (f), no later than the entry
of an order or decree dismissing such proceeding;
(y) with respect to the circumstances described in clause (c)
above, such default is cured as determined by the Special
Servicer in its reasonable, good faith judgment; and
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(z) with respect to the circumstances described in clause (g)
above, such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g)
above exists that would cause the Mortgage Loan to continue to be characterized
as a Specially Serviced Mortgage Loan. The Special Servicer may conclusively
rely on the Master Servicer's determination as to whether a Servicing Transfer
Event has occurred giving rise to a Mortgage Loan becoming a Specially Serviced
Mortgage Loan.
"Startup Day": With respect to each of REMIC I, REMIC II and REMIC
III, the day designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing Date) on which
the last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing Date), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 and, in the case of an ARD Loan, without regard to its Anticipated
Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Loan), the Cut-off Date Balance of such Mortgage Loan, as
permanently reduced on each Distribution Date (to not less than zero) by (i)
that portion, if any, of the Principal Distribution Amount for such Distribution
Date allocable to such Mortgage Loan (or successor REO Loan), and (ii) the
principal portion of any Realized Loss incurred in respect of such Mortgage Loan
(or successor or REO Loan) during the related Collection Period. Notwithstanding
the foregoing, if a Liquidation Event occurs in respect of any Mortgage Loan or
REO Property, then the "Stated Principal Balance" of such Mortgage Loan or of
the related REO Loan, as the case may be, shall be zero commencing as of the
Distribution Date in the Collection Period next following the Collection Period
in which such Liquidation Event occurred.
"Subordinate Available Distribution Amount": With respect to any
Distribution Date, the excess, if any, of the Available Distribution Amount for
such Distribution Date, over the aggregate distributions, if any, to be made on
the Senior Certificates on such Distribution Date pursuant to Section 4.01(a).
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
R-I, Class R-II or Class R-III Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
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"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Tax Matters Person": With respect to each of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury regulation section 1.860F-4(d) and temporary
Treasury regulation section 301.6231(a)(7)-1T, which Person shall be the
Plurality Residual Interest Certificateholder in respect of the related Class of
Residual Interest Certificates.
"Tax Returns": The federal income tax return 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 REMIC I, REMIC II and REMIC III due to its
classification as a REMIC under the REMIC Provisions, and the federal income tax
return to be filed on behalf of the Grantor Trust due to its classification as a
grantor trust under the Grantor Trust 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 under any
applicable provisions of federal tax law or any other governmental taxing
authority under applicable state and local tax law.
"Tenant": A tenant under a Credit Lease.
"Termination Fee": In connection with any termination of the initial
Master Servicer by the Depositor pursuant to Section 6.12, the termination fee
payable pursuant to (i) the Master Servicer Appointment Agreement dated as of
November 1, 1998, between the Depositor and the initial Master Servicer, (ii)
the Agreement to Appointment of Master Servicer dated as of November 1, 1998,
between the Depositor and LBHI and (iii) the Agreement to Appointment of Master
Servicer dated as of November 1, 1998, between the Depositor and LUBS.
"Transaction Documents": Collectively, the following documents: (i)
this Agreement; (ii) the Mortgage Loan Purchase Agreements; (iii) the
Underwriting Agreement dated as of November 17, 1998, between the Depositor and
the Underwriter relating to the sale by the Depositor to the Underwriter of the
Class A-1-a, Class A-1-b, Class A-2, Class B, Class C, Class D, Class E and
Class X Certificates; and (iv) the Assignment Agreement dated as of November 24,
1998, between the Depositor and the Underwriter relating to the transfer by the
Depositor to the Underwriter of the Class R-I, Class R-II and Class R-III
Certificates.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
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"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing of, by Transfer, any
Ownership Interest in a Certificate.
"Trust": The common law trust created hereunder.
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II,
REMIC III and the Grantor Trust.
"Trustee": LaSalle National Bank or its successor in interest, in
its capacity as trustee hereunder, or any successor trustee appointed as herein
provided.
"Trustee Fee": With respect to each Distribution Date, an amount
equal to one-twelfth of the product of (i) the Trustee Fee Rate, multiplied by
(ii) the aggregate Stated Principal Balance of the Mortgage Pool outstanding
immediately prior to such Distribution Date.
"Trustee Fee Rate": 0.003%.
"Trustee Liability": As defined in Section 8.05(b).
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued during the related Interest Accrual Period on the
Uncertificated Principal Balance of such REMIC I Regular Interest outstanding
immediately prior to such Distribution Date. With respect to any REMIC II
Regular Interest, for any Distribution Date, one month's interest at the REMIC
II Remittance Rate applicable to such REMIC II Regular Interest for such
Distribution Date, accrued during the related Interest Accrual Period on the
Uncertificated Principal Balance of such REMIC II Regular Interest outstanding
immediately prior to such Distribution Date. Uncertificated Accrued Interest
shall accrue on the basis of a 360- day year consisting of twelve 30-day months.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
the numerator of which is the Uncertificated Accrued Interest in respect of such
REMIC I Regular
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Interest for such Distribution Date, and the denominator of which is the
aggregate Uncertificated Accrued Interest in respect of all the REMIC I Regular
Interests for such Distribution Date. With respect to any REMIC II Regular
Interest for any Distribution Date, the Uncertificated Accrued Interest in
respect of such REMIC II Regular Interest for such Distribution Date, reduced
(to not less than zero) by that portion, if any, of the Net Aggregate Prepayment
Interest Shortfall for such Distribution Date allocated to such REMIC II Regular
Interest as provided below. The portion, if any, of the Net Aggregate Prepayment
Interest Shortfall for any Distribution Date that is allocated to any Class of
Principal Balance Certificates or any Component of the Class X Certificates in
accordance with the definitions of "Distributable Certificate Interest" and
"Distributable Component Interest", respectively, shall be deemed to have first
been allocated to the Corresponding REMIC II Regular Interest.
"Uncertificated Principal Balance": The principal amount of any
REMIC I Regular Interest or REMIC II Regular Interest outstanding as of any date
of determination. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall equal the Cut-off Date Balance of the
related Mortgage Loan, and the Uncertificated Principal Balance of each REMIC II
Regular Interest shall equal the amount set forth in the Preliminary Statement
hereto as its initial Uncertificated Principal Balance. On each Distribution
Date, the Uncertificated Principal Balance of each REMIC II Regular Interest
shall be permanently reduced by all distributions of principal deemed to have
been made thereon on such Distribution Date pursuant to Section 4.01(j), and
shall be further permanently reduced on such Distribution Date by all Realized
Losses and Additional Trust Fund Expenses deemed to have been allocated thereto
on such Distribution Date pursuant to Section 4.04(b). On each Distribution
Date, the Uncertificated Principal Balance of each REMIC I Regular Interest
shall be permanently reduced by all distributions of principal deemed to have
been made in respect of such REMIC I Regular Interest on such Distribution Date
pursuant to Section 4.01(k), and shall be further permanently reduced on such
Distribution Date by all Realized Losses and Additional Trust Fund Expenses
deemed to have been allocated thereto on such Distribution Date pursuant to
Section 4.04(c).
"Underwriter": Lehman Brothers Inc. or its successor in interest.
"United States Person": A citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a) (30) of the Code.
"Unrestricted Servicer Reports": Each of the Delinquent Loan Status
Report, Historical Loan Modification Report, Historical Loss Estimate Report,
REO Status Report and Loan Payoff Notification Report.
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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, 99% of the Voting Rights shall be allocated among the Holders
of the various Classes of the Principal Balance Certificates in proportion to
the respective Class Principal Balances of their Certificates, and 1% of the
Voting Rights shall be allocated to the Holders of the Class X Certificates.
Voting Rights allocated to a Class of Certificateholders shall be allocated
among such Certificateholders in standard proportion to the Percentage Interests
evidenced by their respective Certificates.
"Watch List Report": A report, substantially in the form of Exhibit
P attached hereto, identifying (as of the Determination Date immediately
preceding the preparation of such report) each Mortgage Loan that is not a
Specially Serviced Mortgage Loan (i) with a Debt Service Coverage Ratio of less
than 1.05x, (ii) that has a Stated Maturity Date occurring in the next sixty
days, (iii) that is delinquent in respect of its real estate taxes, (iv) for
which any outstanding Advances exist, (v) that has been a Specially Serviced
Mortgage Loan in the past 90 days, (vi) for which the Debt Service Coverage
Ratio has decreased by more than 10% in the prior 12 months, (vii) for which any
lease relating to more than 25% of the related Mortgaged Property has expired,
been terminated, is in default or will expire within the next three months,
(viii) that is late in making its Monthly Payment three or more times in the
preceding twelve months, (ix) with material deferred maintenance at the related
Mortgaged Property or (x) that is 30 or more days delinquent.
"Weighted Average REMIC I Remittance Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded to six decimal places, of the respective REMIC I
Remittance Rates applicable to the REMIC I Regular Interests for such
Distribution Date, weighted on the basis of the respective Uncertificated
Principal Balances of such REMIC I Regular Interests outstanding immediately
prior to such Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to Section
3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan as
to which a Workout Fee is payable, 1.0%.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to compensate the
holder for reinvestment losses based on the value of an interest rate index at
or near the time of prepayment. Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges." In
the event that a Yield Maintenance Charge shall become due for any particular
Mortgage Loan, the Master Servicer shall be required to follow the terms and
provisions contained in the applicable Mortgage Note, provided, however, in the
event the particular Mortgage Note shall not specify the U.S. Treasuries which
shall be used in determining the discount rate or the reinvestment yield to be
applied in such calculation, the Master Servicer shall be required to use those
U.S. Treasuries which shall generate the lowest
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discount rate or reinvestment yield for the purposes thereof. Accordingly, if
either no U.S. Treasury issue, or more than one U.S. Treasury issue, shall
coincide with the term over which the Yield Maintenance Charge shall be
calculated (which depending on the applicable Mortgage Note is based on the
remaining average life of the Mortgage Loan or the actual term remaining through
the Stated Maturity Date or Anticipated Repayment Date), the Master Servicer
shall use the applicable U.S. Treasury whose reinvestment yield is the lowest,
with such yield being based on the bid price for such issue as published in The
Wall Street Journal on the date that is fourteen (14) days prior to the date
that the Yield Maintenance Charge shall become due and payable (or, if such bid
price is not published on that date, the next preceding date on which such bid
price is so published) and converted to a monthly compounded nominal yield. The
monthly compounded nominal yield ("MEY") is derived from the reinvestment yield
or discount rate and shall be defined as MEY = (12 X [{(1+ "BEY"/2) ^1/6}-1]) X
100, where BEY is defined as the U.S. Treasury Reinvestment Yield which is in
decimal form and not in percentage, and 1/6 is the exponential power to which a
portion of the equation is raised. For example, using a BEY of 5.50%, the MEY =
(12 X [{(1+ .055/2) ^0.16667}- 1]) X 100 where .055 is the decimal version of
the percentage 5.5% and 0.16667 is the decimal version of the exponential power.
The MEY in the above calculation is 5.438%.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and that such trust be
designated as an "LB Commercial Mortgage Trust". LaSalle National Bank is hereby
appointed, and does hereby agree, to act as Trustee hereunder and, in such
capacity, to hold the Trust Fund in trust for the exclusive use and benefit of
all present and future Certificateholders. The Depositor, concurrently with the
execution and delivery hereof, does hereby assign, sell, transfer, set over and
otherwise convey to the Trustee in trust, without recourse, for the benefit of
the Certificateholders all the right, title and interest of the Depositor, in,
to and under (i) the Mortgage Loans, and (ii) 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 and due after
the Cut-off Date. The transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and, notwithstanding Section 11.07, is
intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver and deposit with, or cause
the Mortgage Loan Sellers (pursuant to their respective Mortgage Loan Purchase
Agreements) to deliver to and deposit with, the Trustee or a Custodian appointed
thereby, on or before the Closing Date, the Mortgage File for each Mortgage Loan
so assigned, with copies of the Mortgage Notes, Mortgages and reserve agreements
for the Mortgage Loans to be delivered to the Master Servicer and the Special
Servicer. None of the Trustee, any Custodian, the Master Servicer or the Special
Servicer shall be liable for any failure by a Mortgage Loan Seller or the
Depositor to comply with the document delivery requirements of the respective
Mortgage Loan Purchase Agreements and this Section 2.01(b).
Also in connection with the Depositor's assignment pursuant to
Section 2.01(a), the Depositor shall deliver to the Trustee on or before the
initial P&I Advance Date the Initial Deposit for each Mortgage Loan originated
during November 1998 as to which the related Mortgagor is not required to pay a
full month's interest in December 1998. The Trustee shall hold such funds
uninvested in an Eligible Account in its name until the P&I Advance Date of the
initial Distribution Date and on such P&I Advance Date shall transfer such funds
to the Collection Account for distribution to the Certificateholders on the
initial Distribution Date.
(c) The Trustee shall, as to each Mortgage Loan, promptly (and in
any event within 45 days following the later of Closing Date and the date on
which the complete Mortgage File for such Mortgage Loan (including, without
limitation, all necessary recording and filing information) has been delivered
to the Trustee or its agent), at the Depositor's expense, submit for recording
or
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filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, as appropriate, each assignment of
Mortgage, assignment of Assignment of Leases and any other recordable documents
relating to the Mortgage Loan, in favor of the Trustee referred to in clause
(iv) of the definition of "Mortgage File", and each UCC-2 and UCC-3 assignment
in favor of the Trustee referred to in clause (viii) of the definition of
"Mortgage File." Each such assignment shall reflect that it should be returned
by the public recording office to the Trustee or its agent following recording,
and each such UCC-2 and UCC-3 assignment shall reflect that the file copy
thereof should be returned to the Trustee or its agent following filing;
provided that in those instances where the public recording office retains the
original assignment of Mortgage or assignment of Assignment of Leases the
Trustee shall obtain therefrom a certified copy of the recorded original. The
Trustee shall forward a copy of each of the aforementioned assignments to the
Master Servicer promptly following the Trustee's receipt thereof. If any such
document or instrument is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Depositor shall promptly prepare or
cause to be prepared a substitute therefor or cure such defect, as the case may
be, and shall deliver to the Trustee the substitute or corrected document (and
the Trustee shall upon receipt thereof cause the same to be duly recorded or
filed, as appropriate).
(d) All documents and records in the possession of the Depositor or
either Mortgage Loan Seller that relate to the Mortgage Loans and that are not
required to be a part of a Mortgage File in accordance with the definition
thereof, together with all unapplied Escrow Payments and Reserve Funds in the
possession of the Depositor or either Mortgage Loan Seller that relate to the
Mortgage Loans, shall be delivered to the Master Servicer or such other Person
as may be directed by the Master Servicer (at the expense of the Depositor) on
or before the Closing Date and shall be held by the Master Servicer on behalf of
the Trustee in trust for the benefit of the Certificateholders.
(e) It is not intended that this Agreement create a partnership or a
joint-stock association.
SECTION 2.02. Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
hereby accepts receipt, directly or through a Custodian on its behalf, of (i)
the Mortgage Loans and all documents delivered to it that constitute portions of
the related Mortgage Files and (ii) all other assets delivered to it and
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 any other documents subsequently received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Mortgage Loans and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
In connection with the foregoing, the Trustee hereby certifies to each of the
other parties hereto, each Mortgage Loan Seller and the Underwriter that, as to
each Mortgage Loan, except as specifically identified in the Schedule of
Exceptions to Mortgage File Delivery attached hereto as Exhibit C, (i) all
documents specified in clause (i) of the definition
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of "Mortgage File" are in its possession or the possession of a Custodian on its
behalf, and (ii) the Mortgage Note received by it or any Custodian with respect
to such Mortgage Loan have been reviewed by it or by such Custodian on its
behalf and (A) appears regular on its face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Mortgagor),
(B) appears to have been executed (where appropriate) and (C) purports to relate
to such Mortgage Loan.
(b) On or about the 90th day following the Closing Date (and, if any
exceptions are noted, again on or about the first anniversary of the Closing
Date), the Trustee or a Custodian on its behalf shall review the documents
delivered to it or such Custodian with respect to each Mortgage Loan, and the
Trustee shall, subject to Sections 2.01, 2.02(c) and 2.02(d), certify in writing
to each of the other parties hereto, each Mortgage Loan Seller and the
Underwriter that, as to each Mortgage Loan then subject to this Agreement
(except as specifically identified in any exception report annexed to such
certification): (i) all documents specified in clauses (i) through (v), (vii)
and (viii) of the definition of "Mortgage File" are in its possession or the
possession of a Custodian on its behalf; (ii) the recordation/filing
contemplated by Section 2.01(c) has been completed (based solely on receipt by
the Trustee of the particular recorded/filed documents); (iii) all documents
received by it or any Custodian with respect to such Mortgage Loan have been
reviewed by it or by such Custodian on its behalf and (A) appear regular on
their face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appear to have been executed
(where appropriate) and (C) purport to relate to such Mortgage Loan; and (iv)
based on the examinations referred to in Section 2.02(a) above and this Section
2.02(b) and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (v) and
(vi)(B) of the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the Mortgage File.
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation 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 valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) In performing the reviews contemplated by Subsections (a) and
(b) above, the Trustee may conclusively rely on the Depositor as to the
purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v), (vii) and (viii) of the definition of "Mortgage File" have been received
and such additional information as will be necessary for delivering the
certifications required by Subsections (a) and (b) above.
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(e) For so long as the initial Trustee is the Trustee, it shall
maintain continuous possession of the Mortgage Files and the Collection Account
in the State of Illinois.
SECTION 2.03. Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been properly executed, is
missing, contains information that does not conform in any material respect with
the corresponding information set forth in the Mortgage Loan Schedule, or does
not appear to be regular on its face (each, a "Document Defect"), or discovers
or receives notice of a breach of any representation or warranty of the
Depositor set forth in Section 2.04(b) (a "Breach"), and such Document Defect or
Breach, as the case may be, materially and adversely affects the interests of
the Certificateholders in, or the value of, any Mortgage Loan, such party shall
give prompt written notice thereof to each of the Rating Agencies, the related
Mortgage Loan Seller and the other parties hereto. Promptly upon becoming aware
of any such Document Defect or Breach that materially and adversely affects the
interests of the Certificateholders in, or the value of, any Mortgage Loan
(including through such written notice provided by any party hereto, as provided
above), the Depositor shall, not later than 90 days from the earlier of the
Depositor's discovery or receipt of notice of such Document Defect or Breach, as
the case may be (or, in the case of a Document Defect or Breach relating to a
Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC
Provisions, not later than 90 days of any party discovering such Document Defect
or Breach), cure the same in all material respects (which cure shall include
payment of losses and any Additional Trust Fund Expenses associated therewith)
or, if such Document Defect or Breach, as the case may be, cannot be cured
within such 90-day period, repurchase the affected Mortgage Loan at the
applicable Purchase Price by wire transfer of immediately available funds to the
Custodial Account; provided, however, that if (i) such Document Defect or Breach
is capable of being cured but not within such 90-day period, (ii) such Document
Defect or Breach is not related to any Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions and (iii) the Depositor has
commenced and is diligently proceeding with the cure of such Document Defect or
Breach within such 90-day period, then the Depositor shall have an additional 90
days to complete such cure or, in the event of a failure to so cure, to complete
such repurchase (it being understood and agreed that, in connection with the
Depositor receiving such additional 90-day period, the Depositor shall deliver
an Officer's Certificate to the Trustee setting forth the reasons such Document
Defect or Breach is not capable of being cured within the initial 90- day period
and what actions the Depositor is pursuing in connection with the cure thereof
and stating that the Depositor anticipates that such Document Defect or Breach
will be cured within such additional 90-day period; and provided, further, that
if, any such Document Defect is still not cured after the initial 90 days and
any such additional 90-day period solely due to the failure of a recording
office to have returned the recorded document, then the Depositor shall be
entitled to continue to defer its cure and repurchase obligations in respect of
such Document Defect so long as the Depositor certifies to the Trustee every 30
days thereafter that the Document Defect is still in effect solely because of
the failure of a recording office to have returned the recorded document and
that the Depositor is diligently pursuing the cure of such defect (specifying
the actions being taken), except
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that no such deferral of cure or repurchase may continue beyond the second
anniversary of the Closing Date. Notwithstanding the foregoing, the delivery of
a commitment to issue a policy of lender's title insurance in lieu of the
delivery of the actual policy of lender's title insurance shall not be
considered a Document Defect with respect to any Mortgage File if such actual
policy of insurance is delivered to the Trustee or a Custodian on its behalf not
later than the 90th day following the Closing Date.
(b) In connection with any repurchase of a Mortgage Loan pursuant to
this Section 2.03, the Trustee, the Custodian, the Master Servicer and the
Special Servicer shall each tender to the Depositor, upon delivery to each of
them of a receipt executed by the Depositor, all portions of the Mortgage File
and other documents pertaining to such Mortgage Loan possessed by it, and each
document that constitutes a part of the Mortgage File shall be endorsed or
assigned to the extent necessary or appropriate to the Depositor or its designee
in the same manner, and pursuant to appropriate forms of assignment,
substantially similar to the manner and forms pursuant to which such documents
were previously assigned to the Trustee; provided that such tender by the
Trustee shall be conditioned upon its receipt from the Master Servicer of a
Request for Release and an Officer's Certificate to the effect that the
requirements for repurchase have been satisfied. The Master Servicer shall, and
is hereby authorized and empowered by the Trustee to, prepare (at the expense of
the Depositor), execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.03, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer.
(c) This Section 2.03 provides the sole remedies available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach with respect to any Mortgage Loan.
SECTION 2.04. Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents , warrants and covenants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Fiscal Agent, the Master Servicer and the Special Servicer, as of the
Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, will not violate the Depositor's certificate of incorporation
or 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.
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(iii) The Depositor 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 Depositor, enforceable against the Depositor
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 Depositor 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 Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) 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.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans to
the Trust Fund pursuant to this Agreement, (A) the Depositor had good and
marketable title to, and was the sole owner and holder of, each Mortgage
Loan; and (B) the Depositor has full right and authority to sell, assign
and transfer the Mortgage Loans and all servicing rights pertaining
thereto.
(ix) The Depositor is transferring the Mortgage Loans to the Trust
Fund free and clear of any liens, pledges, charges and security interests.
(x) Attached hereto as Exhibit X is a true, correct and complete
copy of the Depositor's organizational documents in effect as of the
Closing Date.
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(xi) As of the Closing Date, the Depositor shall hold the Class F,
Class G, Class H, Class J, Class K, Class L, Class M and Class N
Certificates, and the Depositor shall not transfer its interest in such
Certificates to any Affiliate unless (A) it is for prompt resale to an
Independent third party or (B) it delivers to each Rating Agency an
Opinion of Counsel to the effect that such Affiliate would not be
consolidated with the Underwriter or either Seller in the event of an
insolvency of the Underwriter, either Seller or any particular equity
holder holding a 49% or greater equity interest in such Affiliate..
(b) The Depositor hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, with respect to each
Mortgage Loan, as of the Closing Date or such other date specified in the
particular representation and warranty, that:
(i) The information pertaining to such Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material respects
as of the Cut-off Date;
(ii) If such Mortgage Loan was originated by the related Mortgage
Loan Seller or another Affiliate of the Depositor, then, as of the date of
its origination, such Mortgage Loan complied in all material respects
with, or was exempt from, all requirements of federal, state or local law
relating to the origination of such Mortgage Loan; and, if such Mortgage
Loan was not originated by the related Mortgage Loan Seller or another
Affiliate of the Depositor, then, to the best of the Depositor's knowledge
after having performed the type of due diligence customarily performed by
prudent institutional commercial and multifamily mortgage lenders, as of
the date of its origination, such Mortgage Loan complied in all material
respects with, or was exempt from, all requirements of federal, state or
local law relating to the origination of such Mortgage Loan;
(iii) The Depositor owns such Mortgage Loan, has good and marketable
title thereto, has full right and authority to sell, assign and transfer
the Mortgage Loan and is transferring the Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan, and no provision of the Mortgage Note,
Mortgage(s) or other loan documents relating to such Mortgage Loan
prohibits or restricts the Depositor's right to assign or transfer such
Mortgage Loan;
(iv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder;
(v) Each of the related Mortgage Note, Mortgage(s), Assignment(s) of
Leases, if any, and other agreements executed in connection therewith is
the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions therein and any state anti-deficiency
legislation), enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law),
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and a legal opinion to such effect was obtained by the originator of such
Mortgage Loan at the time of origination;
(vi) As of the date of its origination, there was no valid offset,
defense, counterclaim or right to rescission with respect to any of the
related Mortgage Note, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-off Date, to the best knowledge
of the Depositor, there is no valid offset, defense, counterclaim or right
to rescission with respect to such Mortgage Note, Mortgage(s) or other
agreements;
(vii) The assignment of the related Mortgage(s) and Assignment(s) of
Leases to the Trustee constitutes the legal, valid, binding and
enforceable assignment of such documents in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law);
(viii) Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property (other than on the parking garage
portion of the Mortgaged Property securing the Bayside Loan), which
Mortgaged Property is free and clear of all encumbrances and liens having
priority over or on a parity with the first lien of such Mortgage, except
for (A) liens for real estate taxes and special assessments not yet due
and payable, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording
of such Mortgage, such exceptions appearing of record being customarily
acceptable to mortgage lending institutions generally or specifically
reflected in the appraisal of such Mortgaged Property made in connection
with the origination of such Mortgage Loan, (C) other matters to which
like properties are commonly subject and which do not, individually or in
the aggregate, materially and adversely interfere with the benefits of the
security intended to be provided by such Mortgage or materially and
adversely affect the value or marketability of such Mortgaged Property or
the ability of the related Mortgagor to timely pay in full the principal
and interest on the related Mortgage Note, and (D) in the case of the
parking garage portion of the Mortgaged Property securing the Bayside
Loan, the lien of a mortgage securing certain municipal bonds; and such
encumbrances do not materially interfere with the current use or operation
of the related Mortgaged Property, and there exists with respect to such
Mortgaged Property an assignment of leases and rents provision, whether as
part of the related Mortgage or as a separate document or instrument,
which establishes and creates a first priority security interest in and to
leases and rents arising in respect of the related Mortgaged Property
(other than on the parking garage portion of the Mortgaged Property
securing the Bayside Loan), subject only to encumbrances described in
subsections (A), (B), (C) and (D) of this subparagraph (viii);
(ix) The related Mortgage Loan Seller has filed and/or recorded in
all appropriate public filing and recording offices all UCC-1 financing
statements necessary to create and perfect a security interest in and lien
on the items of personal property described therein,
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which personal property includes, in the case of healthcare facilities and
hotel properties, all furniture, fixtures, equipment and other personal
property located at the subject Mortgaged Property that is owned by the
related Mortgagor and necessary or material to the operation of the
subject Mortgaged Property (or, if not filed and/or recorded, has
submitted such UCC-1 financing statements for filing and/or recording and
such UCC-1 financing statements are in form and substance acceptable for
filing and/or recording), to the extent perfection may be effected
pursuant to applicable law by recording or filing;
(x) All taxes and governmental assessments that prior to the Cut-off
Date became due and owing in respect of, and affect, any related Mortgaged
Property have been paid, or an escrow of funds in an amount sufficient to
cover such payments has been established;
(xi) As of the date of its origination, there was no proceeding
pending for the total or partial condemnation of any related Mortgaged
Property that materially affects the value thereof, and each such
Mortgaged Property was free of material damage; and, as of the Cutoff
Date, the Depositor has not received any notice of the commencement of any
proceeding for the total or partial condemnation of any related Mortgaged
Property that materially affects the value thereof, and such Mortgaged
Property is free of material damage;
(xii) Each related Mortgaged Property is covered by an ALTA (or its
equivalent) lender's title insurance policy insuring that each related
Mortgage is a valid first lien on such Mortgaged Property (other than the
parking garage portion of the Mortgaged Property securing the Bayside
Loan) in the original principal amount of the Mortgage Loan after all
advances of principal, or there is a binding commitment from a title
insurer qualified and licensed in the applicable jurisdiction, as
required, to issue such policy; such title insurance policy, if issued, is
in full force and effect, is freely assignable and will inure solely to
the benefit of the Trustee as mortgagee of record, or any such commitment
is a legal, valid and binding obligation of such insurer; no claims have
been made under such title insurance policy, if issued; and to the best
knowledge of the Depositor, no prior mortgagee has done, by act or
omission, anything which would materially impair the coverage of any such
title insurance policy;
(xiii) As of the date of its origination, all insurance required
under each related Mortgage, which insurance covered (except where a
Tenant under a Credit Lease is permitted to self-insure) such risks as
were customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, and with respect to a fire and extended perils
insurance policy, was in an amount (subject to a customary deductible) at
least equal to 100% of the full insurable replacement cost of the
improvements located on such Mortgaged Property (except to the extent not
permitted by applicable law and then in such event in an amount in excess
of the initial principal balance of the Mortgage Loan, together with an
"agreed value endorsement"), was in full force and effect with respect to
each related Mortgaged Property; and, as of the Cut-off
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Date, to the best knowledge of the Depositor, all insurance required under
each Mortgage, which insurance covers (except where a Tenant under a
Credit Lease is permitted to self-insure) such risks and is in such
amounts as are customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the jurisdiction
in which such Mortgaged Property is located, is in full force and effect
with respect to each related Mortgaged Property; and no notice of
termination or cancellation with respect to any such insurance policy has
been received by the Depositor; except for certain amounts not greater
than amounts which would be considered prudent by an institutional
commercial mortgage lender with respect to a similar mortgage loan and
which are set forth in the related Mortgage, any insurance proceeds in
respect of a casualty loss or taking, will be applied either to the repair
or restoration of all or part of the related Mortgaged Property or the
reduction of the outstanding principal balance of the Mortgage Loan;
(xiv) Other than payments due but not yet 30 days or more
delinquent, there is, to the best of the Depositor's knowledge, (A) no
material default, breach, violation or event of acceleration existing
under the related Mortgage Note or any related Mortgage, and (B) no event
which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a material default, breach,
violation or event of acceleration under any of such documents; the
Depositor has not waived any other material default, breach, violation or
event of acceleration under any of such documents; and under the terms of
each Mortgage Loan, each related Mortgage Note, each related Mortgage and
the other loan documents in the related Mortgage File, no person or party
other than the mortgagee may declare an event of default or accelerate the
related indebtedness under such Mortgage Loan, Mortgage Note or Mortgage;
(xv) As of the Cut-off Date, the Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage Loan
has been originated within the past 12 months), has not been, 30 days or
more past due in respect of any Scheduled Payment;
(xvi) The Mortgage Loan accrues interest on the basis of the actual
number of days elapsed over a 360-day year or on the basis of a 360-day
year consisting of twelve 30-day months; and the Mortgage Loan accrues
interest (payable in arrears) at a fixed rate of interest (except with
respect to the ARD Loans, as to which the accrual rate for interest
increases after their respective Anticipated Repayment Dates, and except
in connection with the occurrence of a default and the accrual of default
interest);
(xvii) Each related Mortgage does not provide for or permit, without
the prior written consent of the holder of the Mortgage Note, any related
Mortgaged Property to secure any other promissory note or obligation,
(other than another Mortgage Loan in the Trust Fund);
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(xviii) Such Mortgage Loan is or constitutes part of a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
Accordingly, either as of the date of origination or the Closing Date, the
fair market value of the real property securing the Mortgage Loan was not
less than 80% of the "adjusted issue price" (within the meaning of the
REMIC Provisions) of such Mortgage Loan. For purposes of the preceding
sentence, the fair market value of the real property securing the Mortgage
Loan was first reduced by the amount of any lien on such real property
that is senior to the lien that secures such Mortgage Loan, and was
further reduced by a proportionate amount of any lien that is on a parity
with the lien that secures such Mortgage Loan;
(xix) Prepayment Premiums and Yield Maintenance Charges payable with
respect to the Mortgage Loan, if any, constitute "customary prepayment
penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
(xx) One or more environmental site assessments were performed by an
environmental consulting firm independent of the Depositor and the
Depositor's affiliates with respect to each related Mortgaged Property
during the 13-month period preceding the Cut-off Date, and the Depositor,
having made no independent inquiry other than to review the report(s)
prepared in connection with the assessment(s) referenced herein, has no
knowledge of any material and adverse environmental condition or
circumstance affecting such Mortgaged Property that was not disclosed in
such report(s);
(xxi) The related Mortgage Note, Mortgage(s) and Assignment(s) of
Leases, if any, contain customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for the
realization against the related Mortgaged Property or Properties of the
benefits of the security, including realization by judicial or, if
applicable, non-judicial foreclosure, subject to applicable
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time, in effect, and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(xxii) To the best of the Depositor's knowledge, after due inquiry,
the related Mortgagor is not a debtor in any bankruptcy, reorganization,
insolvency or comparable proceeding;
(xxiii) Such Mortgage Loan is secured by either a mortgage on a fee
simple interest or a leasehold estate in a commercial property or
multifamily property, including the related Mortgagor's interest in the
improvements on the related Mortgaged Property;
(xxiv) Unless such Mortgage Loan is an ARD Loan, such Mortgage Loan
does not provide for negative amortization;
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(xxv) Such Mortgage Loan is a whole loan, contains no equity
participation by the lender or shared appreciation feature and does not
provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property;
(xxvi) The related Mortgage contains provisions for the acceleration
of the payment of the unpaid principal balance of such Mortgage Loan if,
without the prior written consent of the mortgagee, any related Mortgaged
Property or interest therein, is directly or indirectly encumbered in
connection with subordinate financing; provided that certain members of
the Mortgagors listed on Exhibit W-1 hereto, are known to have incurred
debt secured by their ownership interest in the related Mortgagor;
(xxvii) Except with respect to transfers of certain non-controlling
interests in the related Mortgagor as specified in the related Mortgage,
and except with respect to one or more transfers of the related Mortgaged
Property to a person that satisfies certain criteria (including criteria
related to bankruptcy remoteness and property management experience)
specified in the related Mortgage, each related Mortgage contains either
(A) provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if any related Mortgaged Property or
interest therein is directly or indirectly transferred or sold without the
prior written consent of the mortgagee, or (B) provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if any related Mortgaged Property or interest therein is
directly or indirectly transferred or sold without the related Mortgagor
having satisfied certain conditions specified in the related Mortgage with
respect to permitted transfers;
(xxviii) Except in the case of the Omni Loan, the Ontario Mills Loan
and the Arden Loan, such Mortgage Loan, together with any other Mortgage
Loan made to the same Mortgagor or to an affiliate of such Mortgagor, does
not represent more than 5% of the aggregate Cut-off Date Balance of the
Mortgage Pool;
(xxix) Except as set forth in the related Mortgage File, the terms
of the related Mortgage Note, the related Mortgage(s) and any related loan
agreement and/or lock-box agreement have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any
manner nor has any portion of a related Mortgaged Property been released
from the Lien of the related Mortgage to an extent, which in any such
event materially interferes with the security intended to be provided by
such Mortgage;
(xxx) Each related Mortgaged Property was inspected by or on behalf
of the related originator during the six-month period prior to the related
origination date;
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(xxxi) The terms of the related Mortgage Note or Mortgage do not
provide for the release of any material portion of the related Mortgaged
Property from the lien of such Mortgage without either (A) payment in full
of the Mortgage Loan or (B) delivery of defeasance collateral in the form
of U.S. government securities;
(xxxii) The related Mortgagor has covenanted in the Mortgage Loan
documents to maintain the related Mortgaged Property in compliance with
all applicable laws, zoning ordinances, rules, covenants and restrictions
affecting the construction, occupancy, use and operation of such Mortgaged
Property, and the related originator performed the type of due diligence
in connection with the origination of such Mortgage Loan customarily
performed by prudent institutional commercial and multifamily mortgage
lenders with respect to the foregoing matters; the Depositor has received
no notice of any material violation of any applicable laws, zoning
ordinances, rules, covenants or restrictions affecting the construction,
occupancy, use or operation of such Mortgaged Property; to the Depositor's
knowledge (based on surveys and/or title insurance obtained in connection
with the origination of such Mortgage Loan), as of the date of such
origination, no improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at the
time of origination of such Mortgage Loan lay outside the boundaries and
building restriction lines of such property to an extent which would have
a material adverse affect on the related Mortgagor's use and operation of
such Mortgaged Property (unless affirmatively covered by the title
insurance referred to in paragraph (xii) above), and no improvements on
adjoining properties encroached upon such Mortgaged Property to any
material extent;
(xxxiii) Except with respect to Credit Lease Loans, the related
Mortgagor has covenanted in the Mortgage Loan documents to deliver each
year to the mortgagee an operating statement of each related Mortgaged
Property covering the twelve-month period identified therein;
(xxxiv) In the case of each Mortgage Loan having a Cut-off Date
Balance in excess of 2.5% of the aggregate Cut-off Date Balance of the
Mortgage Pool, the related Mortgagor has covenanted in its organizational
documents and/or the Mortgage Loan documents to own no significant asset
other than the related Mortgaged Property or Mortgaged Properties, as
applicable, and assets incidental to its ownership and operation of such
Mortgaged Property;
(xxxv) No advance of funds has been made, directly or indirectly, by
the Depositor to the Mortgagor other than pursuant to the Mortgage Note
and no funds have been received from any person other than such Mortgagor
for or on account of payments due on the Mortgage Note;
(xxxvi) To the Depositor's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental
authority against or affecting the related Mortgagor or the related
Mortgaged Property that, if determined adversely to such Mortgagor or
Mortgaged Property, would materially and adversely affect the value of the
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Mortgaged Property or the ability of the Mortgagor to pay principal,
interest or any other amounts due under such Mortgage Loan;
(xxxvii) Such Mortgage Loan complied with all applicable usury laws
in effect at its date of origination;
(xxxviii) To the extent required under applicable law as of the
Closing Date, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent
necessary to ensure the enforceability of such Mortgage Loan;
(xxxix) If the related Mortgage is a deed of trust, a trustee, duly
qualified under applicable law to serve as such, is properly designated
and serving under such Mortgage;
(xl) Except in the case of the Bayside Loan and the parking garage
portion of the related Mortgaged Property, the related Mortgage Note is
not secured by any collateral that secures a mortgage loan that is not in
the Trust Fund; if the Mortgage Loan is cross-collateralized, it is
cross-collateralized only with other Mortgage Loans in the Trust Fund; and
the security interest/lien on each item of collateral for such Mortgage
Loan has been assigned to the Trustee;
(xli) The improvements on the related Mortgaged Property either are
not located in a flood hazard area as defined by the Federal Insurance
Administration or are covered by flood hazard insurance;
(xlii) Except with respect to the Mortgage Loans listed on Exhibit
W-2 hereto, one or more engineering assessments were performed by an
engineering consulting firm independent of the Depositor and the
Depositor's affiliates with respect to each related Mortgaged Property
during the 19-month period preceding the Cut-off Date, and the Depositor,
having made no independent inquiry other than to review the report(s)
prepared in connection with the assessment(s) referenced herein, has no
knowledge of any material and adverse engineering condition or
circumstance affecting such Mortgaged Property that was not disclosed in
such report(s);
(xliii) All escrow deposits and payments relating to the Mortgage
Loan are under control of the Depositor or the servicer of such Mortgage
Loan and all amounts required as of the date hereof under the Mortgage
Loan Documents to be deposited by the related Mortgagor have been
deposited;
(xliv) The related Mortgagor has represented to the Depositor that
as of the date of origination of the Mortgage Loan, such Mortgagor, the
related lessee, franchisor or operator was in possession of all licenses,
permits and authorizations then required for use of the related Mortgaged
Property, which were valid and in full force and effect;
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(xlv) The origination, servicing and collection practices used by
the Depositor or any prior holder of the Mortgage Note have been in all
respects legal and have met customary industry standards;
(xlvi) Except as set forth in Exhibit W-3, the Mortgage Loan is
secured in whole or in part by a fee simple interest;
(xlvii) If such Mortgage Loan is secured in whole or in material
part by the interest of a Mortgagor as a lessee under a Ground Lease but
not by the related fee interest:
(A) Such Ground Lease or a memorandum thereof has been or will
be duly recorded and such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage or, if
consent of the lessor thereunder is required, it has been obtained
prior to the Closing Date;
(B) Upon the foreclosure of the Mortgage Loan (or acceptance
of a deed in lieu thereof), the Mortgagor's interest in such Ground
Lease is assignable to the Trustee without the consent of the lessor
thereunder (or, if any such consent is required, it has been
obtained prior to the Closing Date) and, in the event that it is so
assigned, is further assignable by the Trustee and its successors
without a need to obtain the consent of such lessor; provided, that
the lessor's consent to a subsequent sale is required under the
Ground Lease related to the Mortgage Loans listed in Exhibit W-4
hereto;
(C) Such Ground Lease may not be amended, modified, canceled
or terminated without the prior written consent of the mortgagee
thereunder and that any such action without such consent is not
binding on such mortgagee, its successors or assigns;
(D) Unless otherwise set forth in the Ground Lease, the Ground
Lease does not permit any increase in the amount of rent payable by
the ground lessee thereunder during the term of the Mortgage Loan;
(E) Such Ground Lease was in full force and effect as of the
date of origination of the related Mortgage Loan, and to the actual
knowledge of the Depositor, at the Closing Date, such Ground Lease
is in full force and effect and other than payments due but not yet
30 days or more delinquent, (1) there is no material default, and
(2) there is no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease;
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(F) Such Ground Lease or an estoppel or consent letter
received by the mortgagee from the lessor, requires the lessor
thereunder to give notice of any default by the lessee to the
mortgagee; and such Ground Lease, or an estoppel or consent letter
received by the mortgagee from the lessor, further provides either
(1) that no notice of termination given under such Ground Lease is
effective against the mortgagee unless a copy has been delivered to
the mortgagee in the manner described in such Ground Lease, estoppel
or consent letter or (2) that upon any termination of the Ground
Lease the lessor will enter into a new lease with the mortgagee;
(G) 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 related Mortgage, other than the related ground
lessor's related fee interest and any exceptions stated in the
related title insurance policy or opinion of title, which exceptions
do not and will not materially and adversely interfere with (1) the
ability of the related Mortgagor timely to pay in full the principal
and interest on the related Mortgage Note, (2) the use of such
Mortgaged Property for the use currently being made thereof, or (3)
the value of the Mortgaged Property;
(H) The mortgagee is permitted a reasonable opportunity to
cure any curable default under such Ground Lease before the lessor
thereunder may terminate such Ground Lease;
(I) Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth
therein) that extends not less than 10 years beyond the Stated
Maturity Date of the related Mortgage Loan;
(J) Except with respect to the Ground Lease related to each of
the Mortgage Loans listed in Exhibit W-4 hereto, under the terms of
such Ground Lease, any estoppel or consent letter received by the
mortgagee from the lessor and the related Mortgage, taken together,
any related insurance proceeds or condemnation proceeds 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 the repair or restoration progresses, or to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon;
(K) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender;
(L) Except with respect to Mortgage Loans listed on Exhibit
W-4 hereto, the ground lessor under such Ground Lease is required to
enter into a new lease upon termination of the Ground Lease for any
reason, including the rejection of
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the Ground Lease in bankruptcy, and for any reason, upon the request
of the lender; and
(M) The terms of the related Ground Lease have not been
waived, modified, altered, satisfied, impaired, canceled,
subordinated or rescinded in any manner which materially interferes
with the security intended to be provided by such Mortgage;
(xlviii) If such Mortgage Loan is secured in whole or in part by the
interest of the related mortgagor under a Ground Lease and by the related
fee interest, such fee interest is subject, and subordinated of record, to
the related Mortgage, and such Mortgage does not by its terms provide that
it will be subordinated to the lien of any other mortgage or other lien
upon such fee interest;
(xlix) If such Mortgage Loan is a Credit Lease Loan:
(A) Except with respect to the Credit Lease Loans listed in
Exhibit W-5 hereto, the lease payments due under the related Credit
Lease, together with any escrow payments held by the Depositor or
its designee, are equal to or greater than the payments due with
respect to the related Mortgage Loan;
(B) Except with respect to Credit Lease Loans as indicated in
Exhibit W-5 hereto, the Mortgagor does not have monetary obligations
under the related Credit Lease, and every monetary obligation
associated with managing, owning, developing and operating the
leased property, including, but not limited to, the costs associated
with utilities, taxes, insurance, maintenance and repairs is an
obligation of the related Tenant;
(C) Except with respect to Credit Lease Loans listed in
Exhibit W-5 hereto, the Mortgagor does not have any nonmonetary
obligations under the related Credit Lease, except for the delivery
of possession of the leased property;
(D) Except with respect to the Credit Lease Loans listed in
Exhibit W-5 hereto, the Mortgagor has not made any representation or
warranty in the related Credit Lease, a breach of which would result
in the termination of, or an offset or abatement with respect to,
such Credit Lease;
(E) The related Tenant cannot terminate or abate rental
payments under such Credit Lease for any reason prior to the payment
in full of: (1) the principal balance of the related Mortgage Loan;
(2) all accrued and unpaid interest on such Mortgage Loan; and (3)
any other sums due and payable under such Mortgage Loan, as of the
termination date, which date is a rent payment date, except for a
material default by
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the related Mortgagor under the Credit Lease or due to a casualty or
condemnation event, in which case, a Lease Enhancement Policy
insures against such risk;
(F) In the event the related Tenant assigns or sublets the
related leased property, such Tenant (and if applicable, the related
guarantor) remains obligated under the related Credit Lease;
(G) Each property related to a Credit Lease Loan is a separate
tax lot;
(H) Except with respect to the Credit Lease Loans listed in
Exhibit W-5 hereto, the related Tenant has agreed to indemnify the
Mortgagor from any claims of any nature other than the acts or
omissions of the related Mortgagor, (1) to which the Mortgagor is
subject because of such Mortgagor's estate in the leased property,
or (2) arising from (I) injury to or death of any person or damage
to or loss of property on the leased property or connected with the
use, condition or occupancy of the leased property, (II) Tenant's
violation of the related Credit Lease, or (III) any act or omission
of the Tenant;
(I) Except with respect to the Mortgage Loans listed in
Exhibit W-5 hereto, related Tenant has agreed to indemnify the
Mortgagor from any claims of any nature arising as a result of any
hazardous material affecting the leased property and due to such
Tenant's use of the leased property;
(J) In connection with Credit Lease Loans with respect to
which a guaranty exists, the related guarantor guarantees the
payment due under the related Credit Lease and such guaranty, on its
face, contains no conditions to such payment;
(K) With respect to Credit Lease Loans that have the benefit
of residual value insurance policies and lease enhancement policies,
each such policy has been obtained, and with respect to the Credit
Leases other than bond-type leases, the required premiums have been
paid; and
(L) The list of lease guarantors, if any, attached as Exhibit
W-5 hereto, is accurate in all material respects; and
(1) Except in the case of Fresno Loan and the Arden Loan, the
Due Date for each Mortgage Loan is scheduled to be the first day of
the month.
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(c) The Depositor hereby makes for the benefit of the
Certificateholders and the other parties hereto the following representations,
warranties and covenants, which shall be in effect each and every day until (but
only until) such time as it unconditionally sells to an Independent third party
or parties all of its interest in the Class F, Class G, Class H, Class J, Class
K, Class L, Class M and Class N Certificates (such period, the "Depositor
Restricted Period"):
(i) All corporate formalities shall be observed by the Depositor,
the Underwriter and each Seller, including keeping proper corporate books
and records and taking appropriate action at the appropriate times by the
Board of Directors and officers of the Depositor. The Depositor shall not
declare dividends without approval from its Board of Directors.
(ii) Each of the Depositor, the Sellers and the Underwriter shall,
at all times and in all material respects, comply with all provisions in
each Transaction Document to which it is a party.
(iii) The Depositor shall engage in transactions with each Seller,
the Underwriter and the other affiliates of the Depositor (A) only on
terms and conditions comparable to transactions on an arm's-length basis
with unaffiliated persons and (B) only with prior unanimous approval of
the Board of Directors of the Depositor.
(iv) The Depositor shall not allow the Sellers nor any of its other
affiliates to guarantee the obligations of the Depositor.
(v) The Sellers' and the Depositor's respective accounting records
will identify the Mortgage Loans and other assets of the Depositor as
property of the Depositor (except to the extent such Mortgage Loans are
assigned to the Trust) consistent with generally accepted accounting
principles. The consolidated financial statements of the Underwriter will
contain footnotes which describe the sale by each Seller to the Depositor
of its Mortgage Loans and the separate existence of the Depositor.
Furthermore, the Depositor's financial statements shall treat the Mortgage
Loans and other assets of the Depositor as assets owned by it, except to
the extent that such Mortgage Loans have been assigned to the Trust.
(vi) There is no other agreement, arrangement or understanding,
written or otherwise (including, without limitation, with respect to the
transfer of the Mortgage Loans), that supplements or otherwise modifies
the agreements expressed in the Transaction Documents.
(vii) The other transactions in which the Depositor is engaged are
of a nature similar to the transactions contemplated by the Transaction
Documents.
(viii) The Depositor has not conducted and shall not conduct its
business activities in violation of its organizational documents in the
form attached hereto as Exhibit X, and shall not modify the provisions of
Articles III, V, VIII, IX or X of its certificate of incorporation
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in the form attached hereto as Exhibit X, in any event unless it receives
written confirmation from each Rating Agency that doing so would not
result in a qualification, downgrade or withdrawal of any of the ratings
then assigned to the Certificates by such Rating Agency.
(ix) The Depositor understands and acknowledges that non-affiliated
Certificateholders and Certificate Owners have purchased their respective
Certificates or interests therein based on the assumption that the
Depositor will be maintained as a separate entity having the
characteristics referred to in the foregoing assumptions of this Section
2.04(c) and the organizational documents of the Depositor attached hereto
as Exhibit X. The Depositor further understands and acknowledges that such
parties have relied on the legal separateness of the Depositor and its
separate credit in connection with the transactions contemplated by the
Transaction Documents and would be prejudiced by any consolidation of the
Depositor with either Seller in an insolvency of such Seller or with the
Underwriter in an insolvency of the Underwriter.
In the event that at any time during the Depositor Restricted Period
there is a breach of any of the foregoing representations, warranties or
covenants of the Depositor contained in this Section 2.04(c), the Depositor
shall within 45 days of the earlier of its discovery or notice of such breach
take one of the following actions: (i) cure such breach in all material respects
so that (as confirmed by an Opinion of Counsel acceptable to the Rating
Agencies) its separateness as a legal entity would not be jeopardized by the
insolvency of the Underwriter or either Seller; or (ii) transfer all of its
interest in the Class F, Class G, Class H, Class J, Class K, Class L, Class M
and Class N Certificates to an Independent third party; or (iii) transfer all of
its interest in the Class F, Class G, Class H, Class J, Class K, Class L, Class
M and Class N Certificates to an affiliated special purpose entity and deliver
to each Rating Agency an Opinion of Counsel to the effect that such Affiliate
would not be consolidated with the Depositor, either Seller or the Underwriter
in the event of an insolvency of the Depositor, either Seller, the Underwriter
or any particular equity holder holding a 49% or greater equity interest in such
Affiliate.
(d) The representations, warranties and covenants of the Depositor
set forth in Section 2.04(a), Section 2.04(b) and Section 2.04(c) 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 Fund
remains in existence. Upon discovery by any party hereto of any breach of any of
such representations, warranties and covenants, the party discovering such
breach shall give prompt written notice thereof to the other parties.
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
The Trustee hereby acknowledges the assignment to it of the assets
included in the Trust Fund. Concurrently with such assignment and in exchange
therefor, (a) the REMIC I Regular Interests have been issued, and (b) pursuant
to the written request of the Depositor executed by an officer thereof, the
Trustee, as Certificate Registrar, has executed, and the Trustee, as
Authenticating
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Agent, has authenticated and delivered to or upon the order of the Depositor,
the Class R-I Certificates in authorized denominations. The interests evidenced
by the Class R-I Certificates, together with the REMIC I Regular Interests,
constitute the entire beneficial ownership of REMIC I. The rights of the Class
R-I Certificateholders and REMIC II (as holder of the REMIC I Regular Interests)
to receive distributions from the proceeds of REMIC I in respect of the Class
R-I Certificates and the REMIC I Regular Interests, respectively, and all
ownership interests evidenced or constituted by the Class R-I Certificates and
the REMIC I Regular Interests, shall be as set forth in this Agreement.
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the Class R-II
Certificates and REMIC III as the holder of the REMIC II Regular Interests. The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests and
declares that it holds and will hold the same in trust for the exclusive use and
benefit of all present and future Holders of the Class R-II Certificates and
REMIC III as the holder of the REMIC II Regular Interests.
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests and in exchange therefor, (a) the REMIC II Regular Interests
have been issued and (b) pursuant to the written request of the Depositor
executed by an officer thereof, the Trustee, as Certificate Registrar, has
executed, and the Trustee, as Authenticating Agent, has authenticated and
delivered to or upon the order of the Depositor, the Class R-II Certificates in
authorized denominations. The rights of the Class R-II Certificateholders and
REMIC III (as holder of the REMIC II Regular Interests) to receive distributions
from the proceeds of REMIC II in respect of the Class R-II Certificates and the
REMIC II Regular Interests, respectively, and all ownership interests evidenced
or constituted by the Class R-II Certificates and the REMIC II Regular
Interests, shall be as set forth in this Agreement.
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance
of REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
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SECTION 2.09. Execution, Authentication and Delivery of REMIC III
Certificates.
Concurrently with the assignment to the Trustee of the REMIC II
Regular Interests and in exchange therefor, pursuant to the written request of
the Depositor executed by an officer thereof, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the REMIC III
Certificates in authorized denominations evidencing the entire beneficial
ownership of REMIC III. The rights of the Holders of the respective Classes of
REMIC III Certificates to receive distributions from the proceeds of REMIC III
in respect of their REMIC III Certificates, and all ownership interests
evidenced or constituted by the respective Classes of REMIC III Certificates in
such distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans that it is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, for the benefit
of the Certificateholders, as determined in the good faith and reasonable
judgement of the Master Servicer or the Special Servicer, as the case may be, in
accordance with any and all applicable laws, the terms of this Agreement and the
terms of the respective Mortgage Loans and, to the extent consistent with the
foregoing, in accordance with the Servicing Standard. The Master Servicer or the
Special Servicer, as applicable in accordance with this Agreement, shall service
and administer each Cross-Collateralized Group as a single Mortgage Loan as and
when necessary and appropriate consistent with the Servicing Standard. Without
limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer
shall service and administer all Mortgage Loans that are not Specially Serviced
Mortgage Loans, and (ii) the Special Servicer shall service and administer each
Specially Serviced Mortgage Loan and REO Property and shall render such services
with respect to all Mortgage Loans and REO Properties as are specifically
provided for herein. All references herein to the respective duties of the
Master Servicer and the Special Servicer, and to the areas in which they may
exercise discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a) and Section 6.11 (taking account of
Section 6.11(b)), the Master Servicer and the Special Servicer shall each 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, each
of the Master Servicer and the Special Servicer, in its own name, with respect
to each of the Mortgage Loans it is obligated to service hereunder, is hereby
authorized and empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
(ii) in accordance with the Servicing Standard and subject to Section 3.20 and
Section 6.11 (taking account of Section 6.11(b)), any and all modifications,
waivers, amendments or consents to or with respect to any documents contained in
the related Mortgage File; and (iii) any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments. Subject to Section 3.10, the Trustee shall, at the
written request of the Master Servicer or the Special Servicer, promptly execute
any limited powers of attorney and other documents furnished by the Master
Servicer or the Special Servicer that are necessary or appropriate to enable
them to carry out their servicing and administrative duties hereunder; provided,
however, that the Trustee shall not be held liable for any misuse of any such
power of attorney by the Master Servicer or the Special Servicer.
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(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Mortgage Loans it is obligated to service hereunder and
shall follow such collection procedures as are consistent with the Servicing
Standard. The Special Servicer shall ensure that with respect to Specially
Serviced Mortgage Loans, the Mortgagors make payments directly to the Master
Servicer. Upon receipt of payments with respect to Mortgage Loans, the Master
Servicer shall promptly notify the Special Servicer, and the Special Servicer
shall direct the Master Servicer as to the proper posting of such payment.
Consistent with the foregoing, the Special Servicer, with regard to a Specially
Serviced Mortgage Loan, or the Master Servicer, with regard to a Mortgage Loan
that is not a Specially Serviced Mortgage Loan, may waive or defer any Default
Interest or late payment charge in connection with any payment on a Mortgage
Loan; provided that without the consent of the Special Servicer in the case of a
proposed waiver by the Master Servicer, no such waiver or deferral may be made
by the Master Servicer pursuant to this Section 3.02 if any Advance has been
made as to such delinquent payment.
(b) All amounts collected in respect of any Cross-Collateralized
Group in the form of payments from Mortgagors, Insurance Proceeds and
Liquidation Proceeds, shall be applied by the Master Servicer among the Mortgage
Loans constituting such Cross-Collateralized Group in accordance with the
express provisions of the related loan documents and, in the absence of such
express provisions, on a pro rata basis in accordance with the respective
amounts then "due and owing" as to each such Mortgage Loan. All amounts
collected in respect of or allocable to any particular Mortgage Loan (whether or
not such Mortgage Loan constitutes part of a Cross-Collateralized Group) in the
form of payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds
shall be applied to amounts due and owing under the related Mortgage Note and
Mortgage (including, without limitation, for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage Note
and Mortgage and, in the absence of such express provisions, shall be applied
for purposes of this Agreement: first, as a recovery of any related and
unreimbursed Servicing Advances; second, as a recovery of accrued and unpaid
interest on such Mortgage Loan at the related Mortgage Rate to, but not
including, the date of receipt (or, in the case of a full Monthly Payment from
any Mortgagor, through the related Due Date), exclusive, however, in the case of
an ARD Loan after its Anticipated Repayment Date, of any such accrued and unpaid
interest that constitutes Additional Interest; third, as a recovery of principal
of such Mortgage Loan then due and owing, including by reason of acceleration of
the Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, as a recovery of Reserve Funds to the
extent then required to be held in escrow; sixth, as a recovery of any
Prepayment Premium or Yield Maintenance Charge then due and owing under such
Mortgage
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Loan; seventh, as a recovery of any Default Interest and late payment charges
then due and owing under such Mortgage Loan; eighth, as a recovery of any
assumption fees and modification fees then due and owing under such Mortgage
Loan; ninth, as a recovery of any other amounts then due and owing under such
Mortgage Loan (other than remaining unpaid principal and, in the case of an ARD
Loan after its Anticipated Repayment Date, other than Additional Interest);
tenth, as a recovery of any remaining principal of such Mortgage Loan to the
extent of its entire remaining unpaid principal balance; and, eleventh, in the
case of an ARD Loan after its Anticipated Repayment Date, as a recovery of
accrued and unpaid Additional Interest on such ARD Loan to but not including the
date of receipt.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain one or more accounts (the "Servicing Accounts"), in which all
Escrow Payments shall be deposited and retained. Subject to the terms of the
related Mortgage Loan documents, each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected from a Servicing Account may be
made (to the extent of amounts on deposit therein in respect of the related
Mortgage Loan or, in the case of clauses (iv) and (v), to the extent of interest
or other income earned on such amounts) only to: (i) effect payment of real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
comparable items in respect of the respective Mortgaged Properties; (ii)
reimburse the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent for any Servicing Advances made to cover any of the items described in the
immediately preceding clause (i); (iii) refund to Mortgagors any sums as may be
determined to be overages; (iv) pay interest, if required and as described
below, to Mortgagors on balances in the Servicing Account; (v) pay the Master
Servicer interest and investment income on balances in the Servicing Account as
described in Section 3.06(b), if and to the extent not required by law or the
terms of Mortgage Loan to be paid to the Mortgagor; or (vi) clear and terminate
the Servicing Account at the termination of this Agreement in accordance with
Section 9.01. To the extent permitted by law or the applicable Mortgage Loan,
funds in the Servicing Accounts may be invested only in Permitted Investments in
accordance with the provisions of Section 3.06. The Master Servicer shall pay or
cause to be paid to the Mortgagors interest, if any, earned on the investment of
funds in Servicing Accounts maintained thereby, if required by law or the terms
of the related Mortgage Loan. If the Master Servicer shall deposit in a
Servicing Account any amount not required to be deposited therein, it may at any
time withdraw such amount from such Servicing Account, any provision herein to
the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Mortgage Loan,
(i) maintain accurate records with respect to the 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 and (ii) use reasonable efforts to
obtain, from time to time, all bills for (or otherwise confirm) the payment of
such items (including renewal premiums) and, for the Mortgage Loans that require
the related Mortgagor to escrow for such items, shall effect payment thereof
prior to the applicable penalty or termination date. For
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purposes of effecting any such payment for which it is responsible, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
Mortgage Loan (or, if such Mortgage Loan does not require the related Mortgagor
to escrow for the payment of real estate taxes, assessments, insurance premiums,
ground rents (if applicable) and similar items, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause the related
Mortgagor to comply with the requirement of the related Mortgage that the
Mortgagor make payments in respect of such items at the time they first become
due and, in any event, prior to the institution of foreclosure or similar
proceedings with respect to the related Mortgaged Property for nonpayment of
such items). Subject to Section 3.03(e), the Master Servicer shall timely make a
Servicing Advance to cover any such item which is not so paid, including any
penalties or other charges arising from the Mortgagor's failure to timely pay
such items.
(c) The Master Servicer shall, as to each and every Mortgage Loan,
make a Servicing Advance with respect to the related Mortgaged Property in an
amount equal to all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies, in each
instance if and to the extent Escrow Payments (if any) 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. All such Servicing
Advances shall be reimbursable in the first instance from related collections
from the Mortgagors, and further as provided in Section 3.05(a). No costs
incurred by the Master 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 of this Agreement, including, without limitation,
the Trustee's calculation of monthly distributions to Certificateholders, be
added to the unpaid Stated Principal Balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit. The foregoing
shall in no way limit the Master Servicer's ability to charge and collect from
the Mortgagor such costs together with interest thereon.
If the Master Servicer or Special Servicer is required under any
provision of this Agreement (including, but not limited to, this Section
3.03(c)) to make a Servicing Advance, but neither does so within 15 days after
such Advance is required to be made, the Trustee shall, if it has actual
knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give written notice of such failure, as
applicable, to the Master Servicer or the Special Servicer. If such Servicing
Advance is not made by the Master Servicer or the Special Servicer within three
Business Days after such notice is given to the Master Servicer or the Special
Servicer, as applicable, then (subject to a determination that such Servicing
Advance would, if made, be a Nonrecoverable Servicing Advance) the Trustee shall
make such Servicing Advance. If the Trustee fails to make any Servicing Advance
required to be made under this Section 3.03(c), then (subject to a determination
that such Servicing Advance would, if made, be a Nonrecoverable Servicing
Advance) the Fiscal Agent shall make such Servicing Advance within three
Business Days of such failure by the Trustee and, thereby, the Trustee shall be
deemed not to be in default under this Agreement. Any failure by the Master
Servicer or the Special Servicer to make a Servicing Advance (excluding
Servicing Advances determined to be Nonrecoverable Servicing Advances prior to
the Master Servicer's or the Special Servicer's, as the case may be, refusal to
make such Servicing
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Advance) hereunder shall constitute an Event of Default by the Master Servicer
or the Special Servicer, as the case may be, subject to and as provided in
Section 7.01.
(d) The Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, compounded annually, accrued on the amount of
each Servicing Advance made thereby (with its own funds) for so long as such
Servicing Advance is outstanding, such interest to be payable: (i) out of late
payment charges and Default Interest collected (A) on or in respect of the
particular Mortgage Loan or REO Property as to which such Servicing Advance
relates and (B) during the same Collection Period in which such Servicing
Advance is reimbursed; and (ii) to the extent that such late payment charges and
Default Interest are insufficient, but only after the related Advance has been
reimbursed pursuant to this Agreement, out of general collections on the
Mortgage Loans and REO Properties on deposit in the Custodial Account. The
Master Servicer shall reimburse itself, the Special Servicer, the Trustee or the
Fiscal Agent, as appropriate and in accordance with Section 3.05(a), for any
Servicing Advance as soon as practicable after funds available for such purpose
are deposited in the Custodial Account.
(e) None of the Master Servicer, the Special Servicer, the Trustee
or the Fiscal Agent shall be required to make out of its own funds any Servicing
Advance that would, if made, constitute a Nonrecoverable Servicing Advance. The
determination by either the Master Servicer or the Special Servicer that it has
made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance,
if made, would constitute a Nonrecoverable Servicing Advance, shall be made in
accordance with the Servicing Standard and shall be evidenced by an Officers'
Certificate delivered promptly to the Trustee and the Depositor, setting forth
the basis for such determination, together with a copy of any appraisal of the
related Mortgaged Property or REO Property, as the case may be (which appraisal
shall be an expense of the Trust and shall take into account the factors
specified in Section 3.18(e) and shall have been conducted by an Independent
Appraiser in accordance with the standards of the Appraisal Institute, within
the twelve months preceding such determination of nonrecoverability), and
further accompanied by related Mortgagor operating statements and financial
statements, budgets and rent rolls of the related Mortgaged Property (to the
extent available and/or in the Master Servicer's or the Special Servicer's
possession) and any engineers' reports, environmental surveys or similar reports
that the Master Servicer or the Special Servicer may have obtained and that
support such determination. The Trustee and the Fiscal Agent shall be entitled
to rely, conclusively, on any determination by the Master Servicer or the
Special Servicer that a Servicing Advance, if made, would be a Nonrecoverable
Advance; provided, however, that if the Master Servicer or the Special Servicer
has failed to make a Servicing Advance for reasons other than a determination by
the Master Servicer or the Special Servicer, as applicable, that such Servicing
Advance would be a Nonrecoverable Advance, the Trustee or the Fiscal Agent, as
applicable, shall make such Servicing Advance within the time periods required
by Section 3.03(c) unless the Trustee or the Fiscal Agent, in good faith, makes
a determination that such Servicing Advance would be a Nonrecoverable Advance.
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Notwithstanding anything set forth herein to the contrary, however,
the Master Servicer shall (at the direction of the Special Servicer if a
Specially Serviced Mortgage Loan or an REO Property is involved) pay directly
out of the Custodial Account any servicing expense that, if advanced by the
Master Servicer or the Special Servicer, would constitute a Nonrecoverable
Servicing Advance; provided that the Master Servicer (or the Special Servicer,
if a Specially Serviced Mortgage Loan or an REO Property is involved) has
determined in accordance with the Servicing Standard that making such payment is
in the best interests of the Certificateholders (as a collective whole), as
evidenced by an Officer's Certificate delivered promptly to the Trustee, the
Depositor and the Controlling Class Representative, setting forth the basis for
such determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
promptly delivered to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer. The Master Servicer may conclusively
rely on any information in this regard provided by the Special Servicer (if
other than the Master Servicer or an Affiliate thereof).
(f) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made (i) to pay for, or to reimburse the related
Mortgagor in connection with, the related repairs, capital improvements and/or
environmental remediation at the related Mortgaged Property if the repairs,
capital improvements and/or environmental remediation have been completed, and
such withdrawals are made in accordance with the Servicing Standard and the
terms of the related Mortgage Note, Mortgage and any other agreement with the
related Mortgagor governing such Reserve Funds and (ii) to pay the Master
Servicer interest and investment income earned on amounts in the Reserve
Accounts as described below. To the extent permitted in the applicable Mortgage,
funds in the Reserve Accounts may be invested in Permitted Investments in
accordance with the provisions of Section 3.06. Subject to the related Mortgage
Loan documents, all Reserve Accounts shall be Eligible Accounts. Consistent with
the Servicing Standard, the Master Servicer may waive or extend the date set
forth in any agreement governing such Reserve Funds by which the required
repairs, capital improvements and/or environmental remediation at the related
Mortgaged Property must be completed; provided that any waiver, any extension
for more than 120 days and any subsequent extension may only be granted with the
consent of the Special Servicer.
SECTION 3.04. Custodial Account, Collection Account and Interest
Reserve Account.
(a) The Master Servicer shall establish and maintain one or more
separate accounts (collectively, the "Custodial Account"), in which the amounts
described in clauses (i) through (viii) below shall be deposited and held on
behalf of the Trustee in trust for the benefit of the Certificateholders. The
Custodial Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Custodial Account, within one Business
Day of receipt (in the case of payments by Mortgagors or other collections on
the Mortgage Loans) or as otherwise
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required hereunder, the following payments and collections received or made by
the Master Servicer or on its behalf subsequent to the Cut-off Date (other than
in respect of principal and interest on the Mortgage Loans due and payable on or
before the Cut-off Date, which payments shall be delivered promptly to the
Depositor or its designee, with negotiable instruments endorsed as necessary and
appropriate without recourse), 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 of the Mortgage Loans,
including, without limitation, Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
including, without limitation, Default Interest and Additional Interest,
and late payment charges;
(iii) all Prepayment Premiums and Yield Maintenance Charges;
(iv) all Insurance Proceeds and Liquidation Proceeds (other than
that portion of the Liquidation Proceeds described in clause (vi) of the
definition thereof that are required to be deposited in the Collection
Account pursuant to Section 9.01) received in respect of any Mortgage
Loan;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which a
Servicing Advance has been made.
The foregoing requirements for deposit in the Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, modification fees, extension fees, charges for
beneficiary statements or demands, amounts collected for checks returned for
insufficient funds and any similar fees need not be deposited by the Master
Servicer in the Custodial Account. If the Master Servicer shall deposit in the
Custodial Account any amount not required to be deposited therein, it may at any
time withdraw such amount from the Custodial Account, any provision herein to
the contrary notwithstanding. The Master Servicer shall promptly deliver to the
Special Servicer, as additional servicing compensation in accordance with
Section 3.11(d), all assumption fees and
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assumption application fees (or the applicable portions thereof) and other
transaction fees received by the Master Servicer to which the Special Servicer
is entitled pursuant to such section upon receipt of a certificate of a
Servicing Officer of the Special Servicer describing the item and amount (unless
pursuant to this Agreement it is otherwise clear that the Special Servicer is
entitled to such amounts, in which case a certificate is not required). The
Custodial Account shall be maintained as a segregated account, separate and
apart from trust funds created for mortgage-backed securities of other series
and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to any Mortgage Loan, the Special Servicer
shall promptly, but in no event later than one Business Day after receipt, remit
such amounts to the Master Servicer for deposit into the Custodial Account in
accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement or other
appropriate reason. With respect to any such amounts paid by check to the order
of the Special Servicer, the Special Servicer shall endorse such check to the
order of the Master Servicer, unless the Special Servicer determines, consistent
with the Servicing Standard, that a particular item cannot be so endorsed and
delivered because of a restrictive endorsement or other appropriate reason. 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 Master Servicer for deposit into the Custodial Account pursuant to Section
3.16(c).
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Collection Account") to be held in trust for the
benefit of the Certificateholders. The Collection Account shall be an Eligible
Account. The Master Servicer shall deliver to the Trustee each month on or
before the P&I Advance Date therein, for deposit in the Collection Account, an
aggregate amount of immediately available funds equal to that portion of the
Available Distribution Amount (calculated without regard to clause (b)(ii)(B) of
the definition thereof) for the related Distribution Date then on deposit in the
Custodial Account, together with (i) any Prepayment Premiums or Yield
Maintenance Charges received on the Mortgage Loans during the related Collection
Period, (ii) any Additional Interest collected on any ARD Loan after its
Anticipated Repayment Date and (iii) in the case of the final Distribution Date,
any additional amounts contemplated by the second paragraph of Section 9.01.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Collection Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses realized on Permitted
Investments with respect to funds held in the Collection Account;
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(iii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls or Section 3.19(d) in connection with a Balloon Payment
Interest Shortfall; and
(iv) the Purchase Price paid in connection with the purchase by the
Master Servicer of all of the Mortgage Loans and any REO Properties
pursuant to Section 9.01, exclusive of the portion of such amounts
required to be deposited in the Custodial Account pursuant to Section
9.01.
The Trustee shall, upon receipt, deposit in the Collection Account
any and all amounts received by the Trustee that are required by the terms of
this Agreement to be deposited therein.
On the P&I Advance Date in March of each year (commencing in March
1999), the Trustee shall transfer from the Interest Reserve Account to the
Collection Account all Interest Reserve Amounts then on deposit in the Interest
Reserve Account with respect to the Interest Reserve Loans.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Interest
Reserve Account shall be an Eligible Account. On each Distribution Date in
February and, during a year that is not a leap year, in January, prior to any
distributions being made in respect of the Certificates on such Distribution
Date, the Trustee shall withdraw from the Collection Account and deposit in the
Interest Reserve Account with respect to each Interest Reserve Loan, an amount
equal to the Interest Reserve Amount, if any, in respect of such Interest
Reserve Loan for such Distribution Date.
(d) Funds in the Custodial Account, the Collection Account and the
Interest Reserve Account (other than Additional Interest received in respect of
the ARD Loans after their respective Anticipated Repayment Dates) may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06. The Master Servicer shall give notice to the Trustee, the Special
Servicer and the Rating Agencies of the location of the Custodial Account as of
the Closing Date and of the new location of the Custodial Account prior to any
change thereof. The Trustee shall give notice to the Master Servicer, the
Special Servicer and the Rating Agencies of the location of each of the
Collection Account and the Interest Reserve Account as of the Closing Date and
of the new location of each of the Collection Account and the Interest Reserve
Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Custodial Account, the
Collection Account and the Interest Reserve Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Custodial Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
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(i) to remit to the Trustee for deposit in the Collection Account
the amounts required to be so deposited pursuant to the first paragraph of
Section 3.04(b) and any amounts that may be applied to make P&I Advances
pursuant to Section 4.03(a);
(ii) to reimburse the Fiscal Agent, the Trustee and itself, in that
order, for unreimbursed P&I Advances, the Fiscal Agent's, the Trustee's
and Master Servicer's, as the case may be, respective rights to
reimbursement pursuant to this clause (ii) with respect to any P&I Advance
(other than Nonrecoverable Advances, which are reimbursable pursuant to
clause (vii) below) being limited to amounts that represent Late
Collections of interest and principal (net of the related Master Servicing
Fees and any related Workout Fees or Liquidation Fees) received in respect
of the particular Mortgage Loan or REO Loan as to which such P&I Advance
was made;
(iii) to pay to itself earned and unpaid Master Servicing Fees in
respect of each Mortgage Loan and REO Loan, the Master Servicer's right to
payment pursuant to this clause (iii) with respect to any Mortgage Loan or
REO Loan being limited to amounts received on or in respect of such
Mortgage Loan (whether in the form of payments, Liquidation Proceeds or
Insurance Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay (A) to the Special Servicer, out of general collections
on the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Mortgage Loan and REO
Loan and (B) to itself, out of general collections on the Mortgage Loans
and REO Properties, any Master Servicing Fee earned in respect of any
Mortgage Loan or REO Loan that remains unpaid in accordance with clause
(iii) above following a Final Recovery Determination made with respect to
such Mortgage Loan or the related REO Property and the deposit into the
Custodial Account of all amounts received in connection therewith;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in
respect of each Specially Serviced Mortgage Loan, Corrected Mortgage Loan
and/or REO Loan, as applicable, in the amounts and from the sources
specified in Section 3.11(c);
(vi) to reimburse the Fiscal Agent, the Trustee, itself or the
Special Servicer, in that order, for any unreimbursed Servicing Advances
made thereby, the Fiscal Agent's, the Trustee's, the Master Servicer's and
the Special Servicer's respective rights to reimbursement pursuant to this
clause (vi) with respect to any Servicing Advance being limited to
payments made by the related Mortgagor that are allocable to such
Servicing Advance, or to Liquidation Proceeds (net of Liquidation Fees
payable therefrom), Insurance Proceeds and, if applicable, REO Revenues
received in respect of the particular Mortgage Loan or REO Property as to
which such Servicing Advance was made;
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(vii) to reimburse the Fiscal Agent, the Trustee, itself or the
Special Servicer, in that order, out of general collections on the
Mortgage Loans and any REO Properties, for any unreimbursed Advances that
have been or are determined to be Nonrecoverable Advances;
(viii) to pay the Fiscal Agent, the Trustee, itself or the Special
Servicer, as the case may be, in that order, any interest accrued and
payable in accordance with Section 3.03(d) or 4.03(d), as applicable, on
any Advance made thereby, the Fiscal Agent's, the Trustee's, the Master
Servicer's and the Special Servicer's respective rights to payment
pursuant to this clause (viii) with respect to interest on any Advance
being permitted to be satisfied (A) out of late payment charges and
Default Interest collected (1) on or in respect of the related Mortgage
Loan or REO Loan, as the case may be, and (2) during the same Collection
Period in which such Advance is reimbursed, and (B) to the extent that the
late payment charges and Default Interest described in the immediately
preceding clause (A) are insufficient, but only after such Advance has
been reimbursed, out of general collections on the Mortgage Loans and any
REO Properties if such Advance has been reimbursed on a prior date;
(ix) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) (other than the costs of environmental
testing, which are to be covered by, and reimbursable as, a Servicing
Advance);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned
in respect of amounts held in the Custodial Account as provided in Section
3.06(b), but only to the extent of the Net Investment Earnings with
respect to the Custodial Account for any Collection Period, (B) Prepayment
Interest Excesses and (C) Default Interest and late payment charges
actually collected that accrued in respect of non-Specially Serviced
Mortgage Loans (to the extent such Default Interest and/or late payment
charges were not applied to offset interest on Advances pursuant to clause
(viii)(A) above), and to pay the Special Servicer, as additional servicing
compensation in accordance with Section 3.11(d), Default Interest and late
payment charges actually collected that accrued in respect of Specially
Serviced Mortgage Loans and REO Loans (to the extent such Default Interest
and/or late payment charges were not applied to offset interest on
Advances pursuant to clause (viii)(A) above;
(xi) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Section 3.03(e),
3.09(a) or 4.03(c);
(xii) to pay itself, the Special Servicer, the Depositor, or any of
their respective directors, officers, employees and agents, as the case
may be, out of general collections on the Mortgage Loans and any REO
Properties, any amounts payable to any such Person pursuant to Section
6.03;
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(xiii) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for (A) the cost of the Opinion of Counsel
contemplated by Section 11.02(a), (B) the cost of an Opinion of Counsel
contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Master Servicer or the
Special Servicer that protects or is in furtherance of the rights and
interests of Certificateholders, (C) the cost of recording this Agreement
in accordance with Section 11.02(a) and (D) the cost of the Trustee's
transferring Mortgage Files and other documents to a successor after being
terminated by Certificateholders pursuant to Section 8.07(c) without
cause;
(xiv) to pay itself, the Special Servicer, the Depositor, the
Dominant Controlling Class Certificateholder or any other Person, 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;
(xv) to pay, in accordance with Section 3.03(e), out of general
collections on the Mortgage Loans and any REO Properties, any servicing
expenses, that would, if advanced, constitute Nonrecoverable Servicing
Advances; and
(xvi) to clear and terminate the Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Custodial Account pursuant to clauses
(ii) - (xv) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer), the Trustee or the
Fiscal Agent from the Custodial Account amounts permitted to be paid to the
Special Servicer (or to any such third party contractor), the Trustee or the
Fiscal Agent therefrom promptly upon receipt of a certificate of a Servicing
Officer of the Special Servicer or of a Responsible Officer of the Trustee or
Fiscal Agent, as the case may be, describing the item and amount to which the
Special Servicer (or such third party contractor), the Trustee or the Fiscal
Agent, as applicable, is entitled (unless pursuant to this Agreement it is
otherwise clear that the Special Servicer, the Trustee or the Fiscal Agent, as
the case may be, is entitled to such amounts, in which case a certificate is not
required). The Master Servicer may rely conclusively on any such certificate and
shall have no duty to re-calculate the amounts stated therein. The Special
Servicer shall keep and maintain separate accounting for each Specially Serviced
Mortgage Loan and REO Property, on a loan-by-loan and property-by-property
basis, for the purpose of justifying any request for withdrawal from the
Custodial Account. With respect to each Mortgage Loan for which it makes an
Advance, each of the Trustee and Fiscal Agent shall similarly keep and maintain
separate accounting for each Mortgage Loan and REO Property, on a loan-by-loan
and property-by-property basis, for the purpose of justifying any request for
withdrawal from the Custodial Account for reimbursements of Advances or interest
thereon.
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(b) The Trustee may, from time to time, make withdrawals from the
Collection Account for any of the following purposes (in no particular order of
priority):
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay the Trustee, the Fiscal Agent or any of their respective
directors, officers, employees and agents, as the case may be, out of
general collections on the Mortgage Loans and any REO Properties, any
amounts payable or reimbursable to any such Person pursuant to Section
7.01(b), Section 8.05 and/or Section 8.17(b), as applicable;
(iii) to pay the Master Servicer, as additional servicing
compensation in accordance with Section 3.11(b), interest and investment
income earned in respect of amounts held in the Collection Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the Collection Account for any Collection
Period);
(iv) to pay, out of general collections on the Mortgage Loans and
any REO Properties, for the cost of the Opinions of Counsel sought by the
Trustee or the REMIC Administrator (A) as provided in clause (v) of the
definition of "Disqualified Organization", (B) as contemplated by Sections
9.02(a)(i), 10.01(i) and 10.02(e), or (C) as contemplated by Section
11.01(a) or 11.01(c) in connection with any amendment to this Agreement
requested by the Trustee which amendment is in furtherance of the rights
and interests of Certificateholders;
(v) to pay, out of general collections on the Mortgage Loans and any
REO Properties, any and all federal, state and local taxes imposed on any
of the REMICs created hereunder or on the assets or transactions of any
such REMIC, together with all incidental costs and expenses, to the extent
none of the Depositor, the Trustee, the REMIC Administrator, the Master
Servicer or the Special Servicer is liable therefor pursuant to Section
10.01(j) or Section 10.02(f);
(vi) to pay the REMIC Administrator, out of general collections on
the Mortgage Loans and any REO Properties, any amounts reimbursable to it
pursuant to Section 10.01(f) or Section 10.02(b);
(vii) to pay the Master Servicer any amounts deposited by the Master
Servicer in the Collection Account in error;
(viii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Loans to the Interest Reserve Account as and when
required by Section 3.04(c); and
(ix) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
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(c) On each P&I Advance Date in March, the Trustee shall withdraw
from the Interest Reserve Account and deposit in the Collection Account all
Interest Reserve Amounts that have been deposited in the Interest Reserve
Account in respect of the Interest Reserve Loans during January and/or February
of the same year in accordance with Section 3.04(c). In addition, the Trustee
may from time to time make withdrawals from the Interest Reserve Account to pay
the Master Servicer, as additional servicing compensation in accordance with
Section 3.11(b), interest and investment income earned in respect of amounts
held in the Interest Reserve Account as provided in Section 3.06(b) (but only to
the extent of the Net Investment Earnings with respect to the Interest Reserve
Account for any Collection Period).
SECTION 3.06. Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Custodial Account, the
Collection Account, the Interest Reserve Account and
the REO Account.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account or the Custodial
Account and may direct in writing the Trustee with respect to the Collection
Account and the Interest Reserve Account (each, for purposes of this Section
3.06, an "Investment Account"), and the Special Servicer may direct in writing
any depository institution maintaining the REO Account (also, 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 (other than
Additional Interest received in respect of the ARD Loans after their respective
Anticipated Repayment Dates) 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; provided that, in the case of any Servicing Account or Reserve
Account, such investment direction shall be subject to the related Mortgage Loan
documents. In the event the Master Servicer shall have failed to give investment
directions for the Collection Account or Interest Reserve Account by 11:00 a.m.
New York City time on any Business Day on which there may be uninvested cash,
such funds shall be invested in securities described in clause (v) of the
definition of "Permitted Investments". The Trustee agrees that funds in the
Collection Account will be invested in accordance herewith on the day of receipt
if received by 5:00 p.m. New York City time. 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 Master Servicer (with respect to Permitted Investments of amounts
in the Servicing Accounts, the Reserve Accounts and the Custodial Account) and
the Special Servicer (with respect to Permitted Investments of amounts in the
REO Account), on behalf of the Trustee, shall (and the Trustee hereby designates
the Master Servicer and the Special Servicer, as applicable, as the person that
shall) (i) be the "entitlement holder" of any Permitted Investment that is a
"security entitlement" and (ii) maintain "control" of any Permitted Investment
that is either a "certificated security" or an "uncertificated security". For
purposes of this Section 3.06(a), the terms "entitlement holder," "security
entitlement," "control," "certificated security" and "uncertificated security"
shall have the meanings given such terms in Revised Article 8 (1994 Revision) of
the UCC, and "control" of any Permitted Investment by the Master Servicer or the
Special Servicer shall
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constitute "control" by a Person designated by, and acting on behalf of, the
Trustee for purposes of Revised Article 8 (1994 Revision) of the UCC . If
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Master Servicer (in the case of the
Custodial Account, Servicing Accounts and Reserve Accounts), the Trustee (in the
case of the Collection Account and the Interest Reserve Account) or the Special
Servicer (in the case of the REO Account) shall:
(x) 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 at
least the lesser of (1) all amounts then payable thereunder and (2)
the amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, 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) Whether or not the Master Servicer directs the investment of
funds in any of the Servicing Accounts, the Reserve Accounts, the Custodial
Account, the Collection Account or the Interest Reserve Account, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for each such Investment Account for each
Collection Period (and, in the case of Servicing Accounts and Reserve Accounts,
to the extent not otherwise payable to Mortgagors under applicable law or the
related Mortgage Loan documents), shall be for the sole and exclusive benefit of
the Master Servicer and shall be subject to its withdrawal in accordance with
Section 3.03(a), 3.03(f) or 3.05(a) or withdrawal by the Trustee at its
direction in accordance with Section 3.05(b), as applicable. Whether or not the
Special Servicer directs the investment of funds in the REO Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for such Investment Account for each Collection
Period, 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(b). If any
loss shall be incurred in respect of any Permitted Investment on deposit in any
Investment Account, the Master Servicer (in the case of the Servicing Accounts,
the Reserve Accounts (except to the extent that any investment of funds with
respect thereto is at the direction of a Mortgagor in accordance with the
related Mortgage Loan documents or applicable law), the Custodial Account, the
Collection Account and the Interest Reserve Account) and the Special Servicer
(in the case of the REO Account) shall promptly deposit therein from its own
funds, without right of reimbursement, no later than the end of the Collection
Period during which such loss was incurred, the amount of the Net Investment
Loss, if any, for such Investment Account for such Collection Period.
(c) Except as expressly provided otherwise 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,
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upon the request of Certificateholders entitled to a majority of the Voting
Rights allocated to a Class, shall take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount, the amounts so
invested shall be deemed to remain on deposit in such Investment Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.
(a) The Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgaged Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans) shall, consistent with the Servicing
Standard, cause to be maintained for each Mortgaged Property all insurance
coverage as is required under the related Mortgage; provided that if and to the
extent that any such Mortgage permits the holder thereof any discretion (by way
of consent, approval or otherwise) as to the insurance coverage that the related
Mortgagor is required to maintain, the Master Servicer or Special Servicer, as
the case may be, shall exercise such discretion in a manner consistent with the
Servicing Standard; and provided further that, if and to the extent that a
Mortgage so permits, the Master Servicer or Special Servicer, as the case may
be, shall use reasonable best efforts to require the related Mortgagor to obtain
the required insurance coverage from Qualified Insurers that have a "claims
paying ability" or "financial strength" rating, as applicable, of at least "A2"
from Moody's and "AA" from S&P (or, in the case of either Rating Agency, such
lower rating as will not result in qualification, downgrade or withdrawal of any
of the ratings then assigned to the Certificates by such Rating Agency, as
evidenced in writing by such Rating Agency). The Dominant Controlling Class
Certificateholder may request that earthquake insurance, to the extent such
insurance may reasonably be obtained, be secured for one or more Mortgaged
Properties at the expense of the Dominant Controlling Class Certificateholder.
Subject to Section 3.17(a), the Special Servicer, in accordance with the
Servicing Standard, shall also cause to be maintained for each REO Property no
less insurance coverage than was previously required of the Mortgagor under the
related Mortgage; provided that all such insurance shall be obtained from
Qualified Insurers that, if they are providing casualty insurance, shall have
(or any entities that guarantee or back, in writing, such Qualified Insurers'
obligations shall have) a "claims paying ability" or "financial strength"
rating, as applicable, of at least "A2" from Moody's and "AA" from S&P (or, in
the case of either Rating Agency, such lower rating as will not result in
qualification, downgrade or withdrawal of any of the ratings then assigned to
the Certificates by such Rating Agency, as evidenced in writing by such Rating
Agency). All such insurance policies shall contain (if they insure against loss
to property and do not relate to an REO Property) a "standard" mortgagee clause,
with loss payable to the Master Servicer (in the case of insurance maintained in
respect of Mortgage Loans, including, without limitation, Specially Serviced
Mortgage Loans), and shall be in the name of the Special Servicer (in the case
of insurance maintained in respect of REO Properties), on behalf of the Trustee;
and, in each case, such insurance shall be issued by a Qualified Insurer. Any
amounts collected by the Master
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Servicer or the Special Servicer under any such 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
subject to the rights of any tenants and ground lessors, as the case may be, and
in each case in accordance with the terms of the related Mortgage and the
Servicing Standard) shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 3.05(a), in the case of amounts received in
respect of a Mortgage Loan, or in the REO Account, subject to withdrawal
pursuant to Section 3.16(c), in the case of amounts received in respect of an
REO Property. Any cost incurred by the Master Servicer or the Special Servicer
in maintaining any such insurance (including any earthquake insurance maintained
at the request of the Dominant Controlling Class Certificateholder) shall not,
for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance or
Stated Principal Balance of the related Mortgage Loan or REO Loan,
notwithstanding that the terms of such Mortgage Loan so permit, but shall be
recoverable by the Master Servicer and the Special Servicer as a Servicing
Advance.
(b) If either the Master Servicer or the Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy
insuring against hazard losses on all of the Mortgage Loans and/or REO
Properties that it is required to service and administer, then, to the extent
such policy (i) is obtained from a Qualified Insurer having (or whose
obligations are guaranteed or backed, in writing, by an entity having) a "claims
paying ability" or "financial strength" rating, as applicable, of at least "A2"
from Moody's and "AA" from S&P (or, in the case of either Rating Agency, such
lower rating as will not result in qualification, downgrade or withdrawal of any
of the ratings then assigned to the Certificates by such Rating Agency, as
evidenced in writing by such Rating Agency), and (ii) provides protection
equivalent to the individual policies otherwise required, the Master Servicer or
the Special Servicer, as the case may be, shall conclusively be deemed to have
satisfied its obligation to cause hazard insurance to be maintained on the
related Mortgaged Properties and/or REO Properties. Such blanket policy may
contain a deductible clause (not in excess of a customary amount), in which case
the Master Servicer or the Special Servicer, as appropriate, shall, if there
shall not have been maintained on the related Mortgaged Property or REO Property
an individual hazard insurance policy complying with the requirements of Section
3.07(a), and there shall have been one or more losses that would have been
covered by such individual policy, promptly deposit into the Custodial Account
from its own funds the amount not otherwise payable under the blanket policy
because of such deductible clause. The Master Servicer or the Special Servicer,
as appropriate, shall prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in
force with Qualified Insurers having (or whose obligations are guaranteed or
backed, in writing, by entities having) a "claims paying ability" or "financial
strength" rating, as applicable, of at least "Baa3" from Moody's and "A" from
S&P (or, in the case of either Rating Agency, such lower rating as will not
result in qualification, downgrade or withdrawal of any of the ratings then
assigned
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to the Certificates by such Rating Agency, as evidenced in writing by such
Rating Agency), a fidelity bond, which fidelity bond shall be in such form and
amount as would permit it to be a qualified FNMA seller-servicer of multifamily
mortgage loans, or in such other form and amount as would not cause the
qualification, downgrade or withdrawal of any rating assigned by either Rating
Agency to the Certificates (as evidenced in writing from each Rating Agency).
Each of the Master Servicer and the Special Servicer shall be deemed to have
complied with the foregoing provision if an Affiliate thereof has such fidelity
bond coverage and, by the terms of such fidelity bond, the coverage afforded
thereunder extends to the Master Servicer or the Special Servicer, as the case
may be.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or REO Properties are part of the Trust Fund) also
keep in force with Qualified Insurers having a "claims paying ability" or
"financial strength" rating, as applicable, of at least "Baa3" from Moody's and
"A" from S&P (or, in the case of either Rating Agency, such lower rating as will
not result in qualification, downgrade or withdrawal of any of the ratings then
assigned to the Certificates by such Rating Agency, as evidenced in writing by
such Rating Agency), a policy or policies of insurance covering loss occasioned
by the errors and omissions of its officers, employees and agents in connection
with its servicing obligations hereunder, which policy or policies shall be in
such form and amount as would permit it to be a qualified FNMA seller-servicer
of multifamily mortgage loans, or in such other form and amount as would not
cause the qualification, downgrade or withdrawal of any rating assigned by
either Rating Agency to the Certificates (as evidenced in writing from each
Rating Agency). Each of the Master Servicer and the Special Servicer shall be
deemed to have complied with the foregoing provisions if an Affiliate thereof
has such insurance and, by the terms of such policy or policies, the coverage
afforded thereunder extends to the Master Servicer or the Special Servicer, as
the case may be.
For so long as the long-term debt obligations of the Master Servicer
or Special Servicer, as the case may be (or, in the case of the initial Master
Servicer and Special Servicer, their respective direct or indirect parent), are
rated at least "A2" by Moody's and "A" by S&P (or, in the case of either Rating
Agency, such lower rating as will not result in qualification, downgrade or
withdrawal of any of the ratings then assigned to the Certificates by such
Rating Agency, as evidenced in writing by such Rating Agency), such Person may
self-insure with respect to the risks described in this Section 3.07(c).
(d) Within 30 days after the Closing Date, the Master Servicer shall
notify the insurer under the Lease Enhancement Policy and any Residual Value
Insurance Policy for any Credit Lease Loan that (i) both the Master Servicer and
the Special Servicer shall be sent notices under each such policy and (ii) the
Trustee for the benefit of the Certificateholders shall be the loss payee under
each such policy. In the event that the Master Servicer has actual knowledge of
any event (an "Insured Event") giving rise to a claim under any Lease
Enhancement Policy or Residual Value Insurance Policy, the Master Servicer shall
notify the Special Servicer thereof within three Business Days after learning of
such event. The Special Servicer shall prepare and file a "proof of loss" form
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with the appropriate insurer within five Business Days after receiving notice of
any Insured Event under any such policy and shall diligently process any claims
under such policy in accordance with the Servicing Standard. The Special
Servicer shall give notice to the Master Servicer of any claim made under any
Lease Enhancement Policy or Residual Value Insurance Policy and of any
termination of any such policy of which the Master Servicer does not already
have notice. Notwithstanding the foregoing, with respect to each Lease
Enhancement Policy and Residual Value Insurance Policy, the Master Servicer will
monitor the dates by which any claim or action must be taken under such policy
to realize the full value thereof for the benefit of the Certificateholders and
at least ten Business Days prior to any date on which any action must be taken
under such policy to realize the full value of such policy for the benefit of
the Certificateholders, the Master Servicer shall notify the Special Servicer to
take such action and, upon such notice, the Special Servicer shall take such
action, consistent with the Servicing Standard.
In the event that the Master Servicer receives notice of any
termination of a Lease Enhancement Policy or a Residual Value Insurance Policy,
the Master Servicer shall, within three Business Days after receipt of such
notice, notify the Special Servicer and the Trustee of such termination in
writing. Upon receipt of such notice, the Special Servicer shall,
notwithstanding that the servicing of the related Mortgage Loan may not have
been transferred to the Special Servicer in accordance with Section 3.21 hereof,
address such termination in accordance with the Servicing Standard. Any legal
fees incurred in connection with a resolution of such termination of a Lease
Enhancement Policy or a Residual Value Insurance Policy shall be paid by the
Special Servicer and shall be reimbursable to it as a Trust Fund expense (to the
extent not required to be paid, and actually paid, by the related Mortgagor
under the applicable Mortgage Loan documents).
SECTION 3.08. Enforcement of Alienation Clauses.
With respect to all Mortgage Loans, the Special Servicer, on behalf
of the Trustee as the mortgagee of record, shall, to the extent permitted by
applicable law, enforce the restrictions contained in the related Mortgage on
transfers or further encumbrances of the related Mortgaged Property and on
transfers of interests in the related Mortgagor, unless: (i) the Special
Servicer has determined, in its reasonable, good faith judgment, that waiver of
such restrictions would be in accordance with the Servicing Standard (as
evidenced by an Officer's Certificate setting forth the basis for such
determination delivered to the Trustee, the Master Servicer and each Rating
Agency); and (ii) such waiver is consistent with Section 6.11; provided that, if
the then unpaid principal balance of the subject Mortgage Loan is at least equal
to the lesser of $20,000,000 and 2% of the then aggregate principal balance of
the Mortgage Pool, the Special Servicer shall not exercise any such waiver in
respect of a due-on-sale provision without receiving prior written confirmation
from each Rating Agency that such action would not result in a qualification,
downgrade or withdrawal of any of the ratings then assigned to the Certificates
and, provided, further, that, the Special Servicer shall, in no event, exercise
any such waiver in respect of a due-on-encumbrance provision without receiving
prior written confirmation from each Rating Agency that such action would not
result in a qualification, downgrade or withdrawal of any of the ratings then
assigned to the Certificates.
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SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments, including, without limitation, pursuant to
Section 3.20. The Special Servicer shall advance all costs and expenses (other
than costs or expenses that would, if incurred, constitute a Nonrecoverable
Servicing Advance) incurred by it in any such proceedings, and shall be entitled
to reimbursement therefor as provided in Section 3.05(a). The Special Servicer
shall be responsible for any determination whether to exercise any rights it may
have under the cross-collateralization and/or cross-default provisions of a
Cross-Collateralized Mortgage Loan. Nothing contained in this Section 3.09 shall
be construed so as to require the Special Servicer, on behalf of the Trust Fund,
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 Special Servicer in its reasonable and good faith judgment
taking into account the factors described in Section 3.18(e) and the results of
any appraisal obtained as provided below in this Section 3.09, all such bids to
be made in a manner consistent with the Servicing Standard; provided that any
such bid of the Special Servicer, on behalf of the Trust, with respect to a
Mortgaged Property located in Puerto Rico shall be equal to the aggregate of all
amounts then due and owing under the related Mortgage Loan. If and when the
Master Servicer or the Special 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, it may have an appraisal performed with respect to
such property by an Independent Appraiser or other expert in real estate
matters, which appraisal shall take into account the factors specified in
Section 3.18(e), and the cost of which appraisal shall be covered by, and be
reimbursable as, a Servicing Advance. With respect to each Required Appraisal
Loan, the Special Servicer will be required to obtain a Required Appraisal
within 60 days of a Mortgage Loan becoming a Required Appraisal Loan (unless an
appraisal meeting the requirements of a Required Appraisal was obtained for such
Required Appraisal Loan within the prior 12 months and the Special Servicer
reasonably believes (in accordance with the Servicing Standard) no material
change has occurred with respect to the related Mortgaged Property that would
draw into question the applicability of such appraisal, in which case such
appraisal shall be the Required Appraisal) and thereafter shall obtain an
updated Required Appraisal once every 12 months for so long as such Mortgage
Loan remains a Required Appraisal Loan. The Special Servicer shall deliver
copies of all such Required Appraisals and updated Required Appraisals to the
Trustee and Master Servicer, in each such case, promptly following the Special
Servicer's receipt of the subject item, and based thereon, the Special Servicer
shall calculate and notify the Trustee, the Master Servicer and the Controlling
Class Representative of any resulting Appraisal Reduction Amount. The Special
Servicer shall advance the cost of each such Required Appraisal and updated
Required Appraisal; provided, however, that such expense will be subject to
reimbursement to the Special Servicer as a Servicing Advance out of the
Custodial Account pursuant to Section 3.05(a). At any time that any Appraisal
Reduction Amount exists with respect to any Required Appraisal Loan, the
Controlling Class
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Representative may, at its own expense, obtain and deliver to the Master
Servicer, the Special Servicer and the Trustee an appraisal that satisfies the
requirements of a "Required Appraisal", and upon the written request of the
Controlling Class Representative, the Special Servicer shall recalculate the
Appraisal Reduction Amount in respect of such Required Appraisal Loan based on
such appraisal and notify the Trustee, the Master Servicer and the Controlling
Class Representative of such recalculated Appraisal Reduction Amount.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer as part of the
Trust Fund under such circumstances, in such manner or pursuant to such terms as
would, in the reasonable, good faith judgment of the Special Servicer (exercised
in accordance with the Servicing Standard), (i) cause such Mortgaged Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (unless the portion of such REO Property that is not
treated as "foreclosure property" and that is held by REMIC I at any given time
constitutes not more than a de minimis amount of the assets of REMIC I within
the meaning of Treasury regulation Section 1.860D-1(b)(3)(i) and (ii)), or (ii)
except as permitted by Section 3.17(a), subject the Trust Fund to the imposition
of any federal income taxes under the Code. In addition, the Special Servicer
shall not acquire any personal property pursuant to this Section 3.09 unless
either:
(i) such personal property is, in the reasonable, good faith
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), 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 covered by, and be reimbursable as, a
Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not cause the imposition of a tax
on any of REMIC I, REMIC II or REMIC III under the REMIC Provisions or
cause any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC
at any time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee, obtain title to a Mortgaged Property by foreclosure, deed 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, could, in the reasonable, good faith judgment of the Master
Servicer or the Special Servicer, as the case may be, made in accordance with
the Servicing Standard, 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 (a
"potentially responsible party"), unless such action is consistent with Section
6.11 and the Special Servicer has previously determined (as evidenced by an
Officers' Certificate to such effect delivered to the Trustee that shall specify
all of the bases for such determination) in accordance with the Servicing
Standard, and based on a Environmental Assessment of such Mortgaged Property
performed by an Independent Person, who
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regularly conducts Environmental Assessments, within six months prior to any
such acquisition of title or other action (a copy of which Environmental
Assessment shall be delivered to the Trustee and the Master Servicer), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would maximize the
recovery to the Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take such
actions as are necessary to bring the Mortgaged Property into compliance
therewith in all material respects; 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 reasonably be
expected to be required, that it would maximize the recovery to the
Certificateholders on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders
to be performed at the related Mortgage Rate) to acquire title to or
possession of the Mortgaged Property and to take such actions with respect
to the affected Mortgaged Property.
The Special Servicer shall undertake, in good faith, reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform or
cause to be performed such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied (the cost of any
such additional testing also to be covered by, and reimbursable as, a Servicing
Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the Custodial Account pursuant to Section 3.05.
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any 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, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust, subject to
Section 6.11, release all or a portion of such Mortgaged Property from the lien
of the related Mortgage; provided that, if such Mortgage Loan has a then
outstanding principal balance greater than $1 million, then prior to the release
of all or a portion of the related Mortgaged Property from the lien of the
related Mortgage, (i) the Special Servicer shall have notified the Rating
Agencies, the Trustee and the Master Servicer in writing of its intention to so
release all or a portion of such Mortgaged Property and the bases for such
intention, (ii) the Trustee shall have
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notified the Certificateholders in writing of the Special Servicer's intention
to so release all or a portion of such Mortgaged Property, and (iii) the Holders
of Certificates entitled to a majority of the Voting Rights shall not have
objected to such release within 30 days of the Trustee's distributing such
notice.
(e) The Special Servicer shall report to the Master Servicer, the
Underwriter and the Trustee monthly in writing as to any actions taken by the
Special Servicer with respect to any Mortgaged Property that represents security
for a defaulted Mortgage Loan as to which the environmental testing contemplated
in Section 3.09(c) above has revealed that any of the conditions set forth in
clauses (i) and (ii) of the first sentence thereof has not been satisfied, in
each case until the earlier to occur of satisfaction of all such conditions and
release of the lien of the related Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking 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 and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems advisable
(the cost of which undertaking shall be covered by, and be reimbursable as, a
Servicing Advance).
(g) The Special Servicer shall, with the reasonable cooperation of
the Master Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received in a trade or business, the reports of
foreclosures and abandonments of any Mortgaged Property and the information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property required by Sections 6050H, 6050J and 6050P of the Code and
each year deliver to the Trustee and the REMIC Administrator an Officers'
Certificate stating that such reports have been filed. Such reports shall be in
form and substance sufficient to meet the reporting requirements imposed by
Sections 6050H, 6050J and 6050P of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Mortgage Loan or REO Property, it shall
promptly notify the Trustee and the Master Servicer. The Special Servicer shall
maintain accurate records, prepared by a Servicing Officer, of each such Final
Recovery Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than the seventh Business Day
following such Final Recovery Determination.
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SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall promptly notify
the Trustee by a certification (which certification shall be in the form of a
Request for Release in the form of Exhibit D-1 attached hereto and shall be
accompanied by the form of a release or discharge 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 Custodial Account
pursuant to Section 3.04(a) have been or will be so deposited) of a Servicing
Officer (a copy of which certification shall be delivered to the Special
Servicer) and shall request delivery to it of the related Mortgage File. Upon
receipt of such certification and request, the Trustee shall release, or cause
any related Custodian to release, the related Mortgage File to the Master
Servicer and shall deliver to the Master Servicer such release or discharge,
duly executed. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Custodial
Account or the Collection Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), the Trustee,
upon request of the Master Servicer and receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 attached hereto signed by a
Servicing Officer thereof, or upon request of the Special Servicer and receipt
from the Special Servicer of a Request for Release in the form of Exhibit D-2
attached hereto, shall release, or cause any related Custodian to release, such
Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or portion
thereof) to the Trustee or related Custodian, or the delivery to the Trustee of
a certificate of a Servicing Officer of the Special Servicer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Custodial Account pursuant to Section 3.04(a) have been or will be so deposited,
or that such Mortgage Loan has become an REO Property, the Request for Release
shall be released by the Trustee or related Custodian to the Master Servicer or
the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but
no less than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee of an exigency) of the
Special Servicer's request therefor, the Trustee shall execute and deliver to
the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, any court pleadings, requests for trustee's sale or other documents
stated by the Special Servicer to be reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or REO 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 or to defend any legal action or
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counterclaim filed against the Trust Fund, the Master Servicer or the Special
Servicer. Together with such documents or pleadings, the Special Servicer shall
deliver to the Trustee 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 Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including, without limitation, each Specially Serviced
Mortgage Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the
Master Servicing Fee shall: (i) accrue from time to time at the related Master
Servicing Fee Rate on the same principal amount as interest accrues from time to
time on such Mortgage Loan or is deemed to accrue from time to time on such REO
Loan; and (ii) be calculated on a 30/360 Basis (or, in the event that a
Principal Prepayment in full or other Liquidation Event shall occur with respect
to a Mortgage Loan or REO Loan on a date that is not a Due Date, on the basis of
the actual number of days to elapse from and including the most recently
preceding related Due Date to but excluding the date of such Principal
Prepayment or Liquidation Event in a month consisting of 30 days and, in the
case of a Mortgage Loan originated during November 1998, as to such month, on
the basis of the actual number of days elapsed from the origination date through
the end of such month). The Master Servicing Fee with respect to any Mortgage
Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan and REO
Revenues allocable as interest on each REO Loan. The Master Servicer shall be
entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan
or REO Loan out of that portion of related Insurance Proceeds or Liquidation
Proceeds allocable as recoveries of interest, to the extent permitted by Section
3.05(a)(iii). The right to receive the Master Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Master Servicer's responsibilities and obligations under this Agreement.
(b) Additional servicing compensation in the form of (i) late
payment charges, Default Interest, charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient funds and any
similar fees (excluding Prepayment Premiums or Yield Maintenance Charges), in
each case to the extent actually paid by a Mortgagor with respect to any
Mortgage Loan and accrued during the time that such Mortgage Loan was not a
Specially Serviced Mortgage Loan, (ii) modification fees actually paid by a
Mortgagor with respect to a modification, waiver or amendment agreed to by the
Master Servicer pursuant to Section 3.20(c) and (iii) fifty percent (50%) of
each assumption fee and assumption application fee to the extent actually paid
by a Mortgagor and accrued or earned with respect to any Mortgage Loan, may be
retained by the Master Servicer and are not required to be deposited in the
Custodial Account; provided that the Master Servicer's right to receive late
payment charges and Default Interest pursuant to clause (i) above shall be
limited to the portion of such items that have not been applied to pay interest
on
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Advances in respect of the related Mortgage Loan. The Master Servicer shall also
be entitled to additional servicing compensation in the form of (i) Prepayment
Interest Excesses; (ii) interest or other income earned on deposits in the
Custodial Account, the Collection 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 Collection Period),
and (iii) to the extent not required to be paid to any Mortgagor under
applicable law, any interest or other income earned on deposits in the Servicing
Accounts and Reserve Accounts maintained thereby (but only to the extent of the
Net Investment Earnings, if any, with respect to each such account for each
Collection Period). The Master Servicer shall be required to pay out of its own
funds all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts due and owing
to any of its Sub-Servicers and the premiums for any blanket policy insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not payable directly out of the Custodial Account, and the Master
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
(c) 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 each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall: (i) accrue
from time to time at the Special Servicing Fee Rate on the same principal amount
as interest accrues from time to time on such Specially Serviced Mortgage Loan
or is deemed to accrue from time to time on such REO Loan; and (ii) be
calculated on a 30/360 Basis (or, in the event that a Principal Prepayment in
full or other Liquidation Event shall occur with respect to a Specially Serviced
Mortgage Loan or REO Loan on a date that is not a Due Date, on the basis of the
actual number of days to elapse from and including the most recently preceding
related Due Date to but excluding the date of such Principal Prepayment or
Liquidation Event in a month consisting of 30 days and, in the case of any other
partial period of less than a full month, on the basis of the actual number of
days in such period in a month consisting of 30 days). The Special Servicing Fee
with respect to any Specially Serviced Mortgage Loan or REO Loan shall cease to
accrue as of the date a Liquidation Event occurs in respect thereof or it
becomes a Corrected Mortgage Loan. Earned but unpaid Special Servicing Fees
shall be payable monthly out of general collections on the Mortgage Loans and
any REO Properties on deposit in the Custodial Account pursuant to Section
3.05(a).
In addition, with respect to each Corrected Mortgage Loan, the
Special Servicer shall be entitled to receive the Workout Fee, unless the basis
on which such Mortgage Loan became a Corrected Mortgage Loan was the remediation
of a circumstance or condition relating to the Depositor's obligation to
repurchase such Mortgage Loan pursuant to Section 2.03, in which case, if such
Mortgage Loan is repurchased within the 180-day period described in Section
2.03(a), no Workout Fee will be payable from or based upon the receipt of, any
Purchase Price paid by the Depositor in satisfaction of such repurchase
obligation. Furthermore, no Workout Fees will be payable from or based upon the
receipt of any Liquidation Proceeds paid by the Depositor, the Master Servicer,
the Special Servicer, the Underwriter or the Dominant Controlling Class
Certificateholder in connection with the purchase of all the Mortgage Loans and
any REO Properties in the Trust Fund
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pursuant to Section 9.01 hereof. As to each Corrected Mortgage Loan, subject to
the exceptions provided for in the two preceding sentences, the Workout Fee
shall be payable from, and shall be calculated by application of the Workout Fee
Rate to, all collections of principal, interest (other than Default Interest and
Additional Interest), Prepayment Premiums and/or Yield Maintenance Charges
received 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 Mortgage Loan becomes a Specially Serviced Mortgage Loan or
if the related Mortgaged Property becomes an REO Property; provided that a new
Workout Fee will become payable if and when such Mortgage Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated other than for
cause (and other than a termination as a result of an Event of Default under
Section 7.01(a)(x) or 7.01(a)(xi)) or resigns in accordance with the first
sentence of the first paragraph of Section 6.04, it shall retain the right to
receive any and all Workout Fees payable in respect of Mortgage Loans that
became Corrected Mortgage Loans during the period that it acted as Special
Servicer and were still such at the time of such termination or resignation (and
the successor Special Servicer shall not be entitled to any portion of such
Workout Fees), in each case until the Workout Fee for any such Mortgage Loan
ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property as to which it receives
any full or discounted payoff from the related Mortgagor or any Liquidation
Proceeds (other than in connection with the purchase of any such Specially
Serviced Mortgage Loan or REO Property by the Dominant Controlling Class
Certificateholder pursuant to Section 3.18(b), by the Master Servicer or the
Special Servicer pursuant to Section 3.18(c), by the Depositor, the Master
Servicer, the Special Servicer, the Underwriter or the Dominant Controlling
Class Certificateholder pursuant to Section 9.01, or by the Depositor pursuant
to Section 2.03 within 180 days of its discovery or notice of the Breach or
Document Defect that gave rise to the repurchase obligation, and other than in
connection with the condemnation or other governmental taking of a Mortgaged
Property or REO Property). As to each such Specially Serviced Mortgage Loan or
REO Property, the Liquidation Fee shall be payable from, and shall be calculated
by application of the Liquidation Fee Rate to, such full or discounted payoff
and/or Liquidation Proceeds; provided that no Liquidation Fee shall be payable
with respect to any such Specially Serviced Mortgage Loan that becomes a
Corrected Mortgage Loan; and provided, further, that (without limiting the
Special Servicer's right to any Workout Fee that is properly payable therefrom),
no Liquidation Fee shall be payable from, or based upon the receipt of,
Liquidation Proceeds collected as a result of any purchase of a Specially
Serviced Mortgage Loan or REO Property described in the parenthetical to the
first sentence of this paragraph or in connection with a condemnation or other
governmental taking of a Mortgaged Property or REO Property.
Notwithstanding anything to the contrary herein, a Liquidation Fee
and a Workout Fee relating to the same Mortgage Loan shall not be paid from the
same proceeds on or with respect to such Mortgage Loan.
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The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Liquidation 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.
(d) Additional servicing compensation in the form of (i) late
payment charges or Default Interest actually collected that accrued with respect
to a Specially Serviced Mortgage Loan or an REO Loan, (ii) fifty percent (50%)
of all assumption fees and assumption application fees collected on all Mortgage
Loans and (iii) one hundred percent (100%) of all modification fees and
extension fees collected on all Mortgage Loans (other than modification fees
collected in connection with modifications, waivers and amendments agreed to by
the Master Servicer pursuant to Section 3.20(c), shall be retained by the
Special Servicer or promptly paid to the Special Servicer by the Master Servicer
and shall not be required to be deposited in the Custodial Account pursuant to
Section 3.04(a); provided that the Special Servicer's right to receive late
payment charges and Default Interest pursuant to clause (i) above shall be
limited to the portion of such items that have not been applied to pay interest
on Advances in respect of the related Specially Serviced Mortgage Loan. The
Special Servicer shall also be entitled to additional servicing compensation in
the form of: (i) interest or other income earned on deposits in the REO Account,
if established, in accordance with Section 3.06(b) (but only to the extent of
the Net Investment Earnings, if any, with respect to the REO Account for each
Collection Period). 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 due and owing
to any of its Sub-Servicers and the premiums for any blanket policy obtained by
it insuring against hazard losses pursuant to Section 3.07(b)), if and to the
extent such expenses are not payable directly out of the Custodial Account or
the REO Account, and the Special Servicer shall not be entitled to reimbursement
therefor except or expressly provided in this Agreement.
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.
(a) The Special Servicer shall at its expense perform or cause to be
performed a physical inspection of a Mortgaged Property as soon as practicable
after the related Mortgage Loan becomes a Specially Serviced Mortgage Loan and
annually thereafter for so long as the related Mortgage Loan remains a Specially
Serviced Mortgage Loan. In addition, the Special Servicer shall at its expense
perform or cause to be performed a physical inspection of each of the REO
Properties at least once per calendar year. Beginning in 1999, the Master
Servicer shall at its expense perform or cause to be performed a physical
inspection of each Mortgaged Property securing a non-Specially Serviced Mortgage
Loan (i) at least once every three calendar years in the case of Mortgaged
Properties securing Credit Lease Loans, (ii) at least once every two calendar
years in the case of Mortgage Loans that have outstanding principal balances of
$2,000,000 or less and (iii) at least once every calendar year in the case of
all other such Mortgaged Properties; provided that if, with respect to any
Credit Lease Loan, the Master Servicer shall gain actual knowledge that either
Rating Agency has reduced below "BB" (or the equivalent) or withdrawn its rating
of the long-term senior unsecured debt obligations or the long-term senior
credit facilities of the applicable Rated Party under the related
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Credit Lease, the Master Servicer shall promptly inspect the related Mortgaged
Property. The Master Servicer and the Special Servicer shall each promptly
prepare or cause to be prepared and deliver to the Trustee and to each other a
written report of each such inspection performed by it that sets forth in detail
the condition of the Mortgaged Property and that specifies the existence of: (i)
any sale, transfer or abandonment of the Mortgaged Property of which the Master
Servicer or the Special Servicer, as applicable, is aware, (ii) any change in
the condition or value of the Mortgaged Property that the Master Servicer or the
Special Servicer, as applicable, in its reasonable, good faith judgment,
considers material, or (iii) any waste committed on the Mortgaged Property. The
Master Servicer and Special Servicer shall each forward copies of any such
inspection reports prepared by it to the Underwriter upon request, subject to
payment of a reasonable fee.
The Special Servicer, in the case of any Specially Serviced Mortgage
Loan and REO Loan, and the Master Servicer, in the case of all other Mortgage
Loans, shall each, consistent with the Servicing Standard, use reasonable
efforts to obtain quarterly and annual operating statements and rent rolls with
respect to each of the related Mortgaged Properties and REO Properties. The
Special Servicer shall, promptly following receipt, deliver copies of the
operating statements and rent rolls received or obtained by it to the Master
Servicer, and the Master Servicer shall promptly deliver copies of the operating
statements and rent rolls received or obtained by it to the Trustee, the Special
Servicer or the Dominant Controlling Class Certificateholder, in each case upon
request.
Within 30 days after receipt by the Master Servicer or the Special
Servicer of any annual operating statements with respect to any Mortgaged
Property or REO Property, as applicable, each of the Master Servicer and the
Special Servicer shall prepare or update and forward to the Trustee and each
other an NOI Adjustment Worksheet for such Mortgaged Property or REO Property
(with the annual operating statements attached thereto as an exhibit).
The Special Servicer with respect to each Specially Serviced
Mortgage Loan and REO Loan, and the Master Servicer with respect to each other
Mortgage Loan, shall each prepare and maintain and forward to each other one
Operating Statement Analysis for each Mortgaged Property and REO Property, as
applicable. The Operating Statement Analysis for each Mortgaged Property and REO
Property is to be updated by each of the Master Servicer and the Special
Servicer, as applicable, within thirty days after its respective receipt of
updated operating statements for such Mortgaged Property or REO Property, as the
case may be. The Master Servicer and the Special Servicer shall each use the
"Normalized" column from the NOI Adjustment Worksheet for any Mortgaged Property
or REO Property, as the case may be, to update the corresponding Operating
Statement Analysis and shall use any operating statements received with respect
to any Mortgaged Property or REO Property, as the case may be, to prepare the
NOI Adjustment Worksheet for such property. Copies of Operating Statement
Analyses and NOI Adjustment Worksheets are to be made available by the Master
Servicer to the Trustee, the Special Servicer or the Dominant Controlling Class
Certificateholder, in each case upon request.
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(b) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Mortgage Loans and any REO Properties,
providing the required information as of the end of the preceding calendar
month: (i) a CSSA Property File Report; and (ii) a Comparative Financial Status
Report. Not later than 2:00 p.m. (New York City time) on the second Business Day
following each Determination Date, the Special Servicer shall deliver or cause
to be delivered to the Master Servicer the following reports with respect to the
Specially Serviced Mortgage Loans, any REO Properties and, to the extent that
the subject information relates to when they were Specially Serviced Mortgage
Loans, any Corrected Mortgage Loans, providing the required information as of
such Determination Date: (i) a Delinquent Loan Status Report; (ii) a Loan Payoff
Notification Report; (iii) an Historical Loss Estimate Report; (iv) an
Historical Loan Modification Report; and (v) an REO Status Report.
(c) Not later than 2:00 p.m. (New York City time) on the third
Business Day after each Determination Date, the Master Servicer shall deliver or
cause to be delivered to the Trustee, the Special Servicer and, upon request,
the Dominant Controlling Class Representative: (i) the most recent Historical
Loan Modification Report, Historical Loss Estimate Report and REO Status Report
received from the Special Servicer pursuant to Section 3.12(b); (ii) the most
recent CSSA Property File Report, Delinquent Loan Status Report, Comparative
Financial Status Report and Loan Payoff Notification Report (in each case
combining the reports prepared by the Special Servicer and the Master Servicer);
(iii) a CSSA Loan File Report; and (iv) a Watch List Report with information
that is current as of such Determination Date. The Master Servicer shall include
on one of such reports updated information as of the applicable Determination
Date regarding the amount of accrued and unpaid interest on Advances in
accordance with Section 3.03(d) and/or 4.03(d), such information to be presented
on a loan-by-loan basis.
(d) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee, the Special Servicer and, upon request,
the Dominant Controlling Class Representative the reports set forth in Section
3.12(c) in an electronic format reasonably acceptable to the Master Servicer and
the Trustee. The Master Servicer may, absent manifest error, conclusively rely
on the reports to be provided by the Special Servicer pursuant to Section
3.12(b). The Trustee may, absent manifest error, conclusively rely on the
reports to be provided by the Master Servicer pursuant to Section 3.12(c) to the
extent that the underlying information is solely within the control of the
Master Servicer or the Special Servicer. In the case of information or reports
to be furnished by the Master Servicer to the Trustee pursuant to Section
3.12(c), to the extent that such information is based on reports to be provided
by the Special Servicer pursuant to Section 3.12(b) and to the extent that such
reports are to be prepared and delivered by the Special Servicer pursuant to
Section 3.12(b), the Master Servicer shall have no obligation to provide such
information or reports until it has received such information or reports from
the Special Servicer, and the Master Servicer shall not be in default hereunder
due to a delay in providing the reports required by Section 3.12(c) caused by
the Special Servicer's failure to timely provide any report required under
Section 3.12(b) of this Agreement.
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SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Depositor, the Underwriter and each other, on or before
March 15 of each year, beginning March 15, 1999 (or, as to any such year, such
later date as is contemplated by the last sentence of this Section 3.13), an
Officer's Certificate (the "Annual Performance Certification") stating, as to
the signer thereof, that (i) a review of the activities of the Master Servicer
or the Special Servicer, as the case may be, during the preceding calendar year
(or, in the case of the first such certification, during the period from the
Closing Date to December 31, 1998, inclusive) 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 Master Servicer or the
Special Servicer, as the case may be, has fulfilled all of its material
obligations under this Agreement in all material respects throughout such year
(or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof), and (iii) the Master Servicer or the Special Servicer, as the case may
be, has received no notice regarding the qualification, or challenging the
status, of any of REMIC I, REMIC II or REMIC III as a REMIC or the Grantor Trust
as a grantor trust, from the Internal Revenue Service or any other governmental
agency or body (or, if it has received any such notice, specifying the details
thereof). Notwithstanding the timing provided for in the first sentence of this
paragraph, if (as confirmed in writing by the Depositor) the Depositor is not
required to file a Form 10-K with the Commission in respect of the Trust
covering any particular calendar year, then the Annual Performance Certification
to be delivered by each of the Master Servicer and the Special Servicer during
the following year, may be delivered on or before April 30 of such following
year.
SECTION 3.14. Reports by Independent Public Accountants.
On or before March 15 of each year, beginning March 15, 1999 (or, as
to any such year, such later date as is contemplated by the last sentence of
this paragraph), each of the Master Servicer and the Special Servicer at its
expense shall cause a firm of independent public accountants (which may also
render other services to the Master Servicer or the Special Servicer) that is a
member of the American Institute of Certified Public Accountants to furnish a
statement (the "Annual Accountants' Report") to the Trustee, the Depositor, the
Underwriter and each other, to the effect that (i) such firm has obtained a
letter of representation regarding certain matters from the management of the
Master Servicer or the Special Servicer, as applicable, which includes an
assertion that the Master Servicer or the Special Servicer, as applicable, has
complied with certain minimum mortgage loan servicing standards (to the extent
applicable to commercial and multifamily mortgage loans), identified in the
Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage Bankers Association of America, with respect to the servicing of
commercial and multifamily mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of commercial and multifamily
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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 one year of such report)
with respect to those sub-servicers. Notwithstanding the timing provided for in
the first sentence of this paragraph, if (as confirmed in writing by the
Depositor) the Depositor is not required to file a Form 10-K with the Commission
in respect of the Trust covering any particular calendar year, then the Annual
Accountants' Report to be delivered on behalf of each of the Master Servicer and
the Special Servicer during the following year, may be delivered on or before
April 30 of such following year.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
reports delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Depositor in connection with the Commission's issuance of a
no-action letter relating to the Depositor's reporting requirements in respect
of the Trust Fund pursuant to the Exchange Act, provided that the Master
Servicer and Special Servicer shall each be entitled to charge the Depositor for
any reasonable additional costs and expenses incurred in affording the Depositor
such cooperation.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Underwriter, the Rating Agencies, the Depositor and any
Certificateholder, and to the OTS, the FDIC and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to any records regarding the Mortgage Loans and the servicing thereof
within its control, except to the extent it is prohibited from doing so by
applicable law or contract or to the extent such information is subject to a
privilege under applicable law to be asserted on behalf of the
Certificateholders. Such access shall be afforded only upon reasonable prior
written request and during normal business hours at the offices of the Master
Servicer or the Special Servicer, as the case may be, designated by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder or any regulatory
authority that may exercise authority over a Certificateholder, the Master
Servicer and the Special Servicer may each require payment from such
Certificateholder of a sum sufficient to cover the reasonable costs and expenses
of providing such information or access, including, without limitation, copy
charges and reasonable fees for employee time and for space; provided that no
charge may be made if such information or access was required to be given or
made available under applicable law.
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 by the end of the third calendar year following the
calendar year in which REMIC I acquires ownership of such REO Property for
purposes of Section 860G(a)(8) of
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the Code, unless the Special Servicer either (i) applies, more than sixty days
prior to the end of such third succeeding year, for and 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 an Opinion of Counsel, addressed to the
Trustee, the Special Servicer and the Master Servicer, to the effect that the
holding by REMIC I of such REO Property subsequent to the end of such third
succeeding year will not result in the imposition of taxes on "prohibited
transactions" (as defined in Section 860F of the Code) of any of REMIC I, REMIC
II or REMIC III or cause any of REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any 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 extended 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 obtaining the REO Extension
contemplated by clause (i) of the second preceding sentence or its obtaining the
Opinion of Counsel contemplated by clause (ii) of the second preceding sentence,
shall be covered by, and reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), 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. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, upon receipt, all REO Revenues, Insurance Proceeds and Liquidation
Proceeds received in respect of any REO Property. Funds in the REO Account
(other than any such funds representing Additional Interest) may be invested in
Permitted Investments in accordance with Section 3.06. The Special Servicer
shall be entitled to make withdrawals from the REO Account to pay itself, as
additional servicing compensation in accordance with Section 3.11(d), interest
and investment income earned in respect of amounts held in the REO Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the REO Account for any Collection Period). The Special
Servicer shall give notice to the Trustee and the Master 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. On the Business Day following
each Determination Date, the Special Servicer shall withdraw from the REO
Account and deposit into the Custodial Account (or deliver to the Master
Servicer or such other Person as may be designated by the Master Servicer for
deposit into the Custodial Account) the aggregate of all amounts received in
respect of each REO Property during the Collection Period ending on such
Determination Date, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that the Special Servicer may retain in the REO
Account such portion of proceeds and collections in respect of any REO Property
as may be necessary to maintain
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a reserve of sufficient funds for the proper operation, management, leasing,
maintenance and disposition of such REO Property (including, without limitation,
the creation of a reasonable reserve for repairs, replacements, necessary
capital replacements and other related expenses), such reserve not to exceed an
amount sufficient to cover such items to be incurred during the following
twelve-month period.
(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).
The Special Servicer shall provide the Master Servicer any information with
respect to the REO Account as is reasonably requested by the Master Servicer.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to a Mortgaged Property, the
Special Servicer shall review the operation of such Mortgaged Property and
determine the nature of the income that would be derived from such property if
it were acquired by the Trust Fund. If the Special Servicer determines from such
review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the tax
imposed on "prohibited transactions" under Section 860F of the Code
(either such tax referred to herein as an "REO Tax"), such Mortgaged
Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such
property would not result in income subject to an REO Tax, then the
Special Servicer may (provided, that in the good faith and reasonable
judgment of the Special Servicer, it is commercially reasonable) acquire
such Mortgaged Property as REO Property and so lease or operate such REO
Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially reasonable means exists to operate such property as
REO Property without the Trust Fund incurring or possibly incurring an REO
Tax on income from such property, the Special Servicer shall deliver to
the REMIC Administrator, in writing, a proposed plan (the "Proposed Plan")
to manage such property as REO Property. Such plan shall include potential
sources of income, and, to the extent reasonably possible, estimates of
the amount of income from each such source. Upon request of the Special
Servicer, the REMIC Administrator shall advise the Special Servicer of the
REMIC Administrator's federal income tax reporting position with respect
to the various sources of income that the Trust Fund would derive under
the
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Proposed Plan. After receiving the information described in the preceding
sentence from the REMIC Administrator, the Special Servicer shall either
(A) implement the Proposed Plan (after acquiring the respective Mortgaged
Property as REO Property) or (B) manage and operate such property in a
manner that would not result in the imposition of an REO Tax on the income
derived from such property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based on the Servicing Standard and in any case on
the good faith and reasonable judgment of the Special Servicer as to which means
would be in the best interest of the Certificateholders by maximizing (to the
extent commercially reasonable and consistent with Section 3.17(b)) the net
after-tax REO Revenues received by the Trust Fund with respect to such property
and, to the extent consistent with the foregoing, in the same manner as would
prudent mortgage loan servicers and asset managers operating acquired mortgaged
property comparable to the respective Mortgaged Property. In connection with
performing their respective duties under this Section 3.17(a), both the Special
Servicer and the REMIC Administrator may consult with counsel and tax
accountants, the cost of which consultation shall be covered by, and be
reimbursable as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders solely for the purpose of its prompt disposition and sale
in a manner that does not and will not cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or, except as contemplated by Section 3.17(a), either result in the
receipt by REMIC I, REMIC II or REMIC III of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an
Adverse REMIC Event. Subject to the foregoing, however, the Special Servicer
shall have full power and authority to do any and all things in connection
therewith as are consistent with the Servicing Standard and, consistent
therewith, shall withdraw from the REO Account, to the extent of amounts on
deposit therein with respect to any REO Property, funds necessary for the proper
operation, management, maintenance and disposition 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; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
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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 the preceding sentence
with respect to such REO Property, the Special Servicer shall make Servicing
Advances in such amounts as are necessary for such purposes unless the Special
Servicer determines, in accordance with the Servicing Standard, that such
payment would be a Nonrecoverable Advance; provided, however, that the Special
Servicer may make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings. The Special Servicer shall notify the Master
Servicer if it shall have made any such Servicing Advance within the previous
30-day period.
(c) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, (A) pay all costs and expenses incurred in
connection with the operation and management of such REO Property,
including, without limitation, those listed in Section 3.17(b) above, and
(B) except to the extent that such revenues are derived from any services
rendered by the Independent Contractor to tenants of the REO Property that
are not customarily furnished or rendered in connection with the rental of
real property (within the meaning of Section 1.856-4(b)(5) of the Treasury
Regulations or any successor provision), remit all related revenues
collected (net of its fees and such costs and expenses) to the Special
Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
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The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. No agreement entered into pursuant to this
Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of
Section 3.22.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only on the terms and subject to the conditions set forth in this
Section 3.18 or as otherwise expressly provided in or contemplated by Sections
2.03(a) and 9.01.
(b) If the Special Servicer has determined in good faith that any
Defaulted Mortgage Loan will become subject to foreclosure or similar
proceedings, the Special Servicer shall promptly so notify in writing the
Trustee and the Master Servicer, and the Trustee, following its receipt of such
notice, shall, within 10 days after receipt of such notice, notify the Dominant
Controlling Class Certificateholder. The Dominant Controlling Class
Certificateholder may at its option, at any time after its receipt of such
notice and prior to the liquidation thereof, purchase any such Defaulted
Mortgage Loan from the Trust Fund, at a price equal to the Purchase Price;
provided that, if the Dominant Controlling Class Certificateholder has not
purchased any such Defaulted Mortgage Loan within 30 days after its receipt of
such notice, then (i) for 10 days following the expiration of such 30-day
period, its right to effect such purchase will be subordinate to the rights of
the Master Servicer and the Special Servicer pursuant to subsection (c) below
and (ii) thereafter, its right to effect such purchase will be of equal priority
with the rights of the Special Servicer pursuant to subsection (c) below. The
Purchase Price for any Mortgage Loan purchased under this paragraph (b) shall be
deposited into the Custodial Account, and the Trustee, upon receipt of an
Officers' Certificate from the Master Servicer to the effect that such deposit
has been made, shall release or cause to be released to the Dominant Controlling
Class Certificateholder the related Mortgage File, and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
shall be provided to it and are reasonably necessary to vest in the Dominant
Controlling Class Certificateholder ownership of such Mortgage Loan. In
connection with any such purchase, the Special Servicer shall deliver the
related Servicing File to the Dominant Controlling Class Certificateholder.
(c) If the Dominant Controlling Class Certificateholder has not
purchased any Defaulted Mortgage Loan within 30 days of its having received
notice in respect thereof pursuant to Section 3.18(b) above, either the Master
Servicer or the Special Servicer (with preference given to the Special Servicer)
may at its option, at any time after the expiration of such 30-day period and
with priority over the Dominant Controlling Class Certificateholder for the
first 10 days following such 30-day period, purchase such Mortgage Loan from the
Trust Fund, at a price equal to the Purchase Price. The Purchase Price for any
such Mortgage Loan purchased under this paragraph (c) shall be
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deposited into the Custodial Account, and the Trustee, upon receipt of an
Officers' Certificate from the Master Servicer to the effect that such deposit
has been made, shall release or cause to be released to the Master Servicer or
the Special Servicer, as applicable, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it and are reasonably necessary to
vest in the Master Servicer or the Special Servicer, as applicable, the
ownership of such Mortgage Loan. In connection with any such purchase by the
Master Servicer, the Special Servicer shall deliver the related Servicing File
to the Master Servicer.
(d) The Special Servicer, at any time, may offer to sell any
Defaulted Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) or
Section 3.18(c) above, if and when the Special Servicer determines, consistent
with the Servicing Standard, that such a sale would be in the best economic
interests of the Trust Fund. Such offer shall be made in a commercially
reasonable manner (which, for purposes hereof, includes an offer to sell without
representation or warranty other than customary warranties of title and
condition, if liability for breach thereof is limited to recourse against the
Trust Fund) for a period of not less than 10 days. Subject to Sections 3.18(h)
and 6.11, the Special Servicer shall accept the highest cash bid received from
any Person that constitutes a fair price for such Mortgage Loan.
The Special Servicer shall use its best efforts to solicit bids for
each REO Property in such manner as will be reasonably likely to realize a fair
price within the time period provided for by Section 3.16(a). Subject to
Sections 3.18(h) and 6.11, the Special Servicer shall accept the first (and, if
multiple bids are received contemporaneously or subsequently, the highest,
provided that the Special Servicer is not obligated to the first bidder) cash
bid received from any Person that constitutes 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 (subject to Section 6.11) 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.
The Special Servicer shall give the Trustee, the Depositor, the
Master Servicer and the Controlling Class Representative not less than ten
Business Days' prior written notice of its intention to sell any Mortgage Loan
or REO Property pursuant to this Section 3.18(d). No Interested Person shall be
obligated to submit a bid to purchase any such 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.
(e) 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(d), shall be determined by the Special Servicer or, if such cash bid is
from an Interested Person, by the Trustee. In determining whether any bid
received from an Interested Person represents a fair price for any such Mortgage
Loan or REO Property, the Trustee shall be supplied with and shall be entitled
to rely on the most
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recent appraisal in the related Servicing File conducted in accordance with this
Agreement within the preceding 12-month period (or, in the absence of any such
appraisal or if there has been a material change at the subject property since
any such appraisal, on a new appraisal to be obtained by the Special Servicer
(the cost of which shall be covered by, and be reimbursable as, a Servicing
Advance)). The appraiser conducting any such new appraisal shall be an
Independent Appraiser selected by the Special Servicer if neither the Special
Servicer nor any Affiliate thereof is bidding with respect to a Defaulted
Mortgage Loan or REO Property and selected by the Trustee if either the Special
Servicer or any Affiliate thereof is so bidding. Where any Interested Person is
among those bidding with respect to a Defaulted Mortgage Loan or REO Property,
the Special Servicer shall require that all bids be submitted to it (and, if the
Special Servicer is bidding, shall be submitted by it to the Trustee) in writing
and be accompanied by a refundable deposit of cash in an amount equal to 5% of
the bid amount. In determining whether any bid from a Person other than an
Interested Person constitutes a fair price for any such Mortgage Loan or REO
Property, the Special Servicer shall take into account the results of any
appraisal or updated appraisal that it or the Master Servicer may have obtained
in accordance with this Agreement within the prior twelve months, and any
Independent Appraiser shall be instructed to take into account, as applicable,
among other factors, the period and amount of any delinquency on the affected
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 such Mortgage Loan or REO Property shall in all cases
be deemed a fair price. Notwithstanding the other provisions of this Section
3.18, no cash bid from the Special Servicer or any Affiliate thereof shall
constitute a fair price for any Defaulted Mortgage Loan or REO Property unless
such bid is the highest cash bid received and at least two independent bids (not
including the bid of the Special Servicer or any Affiliate) have been received.
In the event the bid of the Special Servicer or any Affiliate thereof is the
only bid received or is the higher of only two bids received, then additional
bids shall be solicited. If an additional bid or bids, as the case may be, are
received and the original bid of the Special Servicer or any Affiliate thereof
is the highest of all cash bids received, then the bid of the Special Servicer
or such Affiliate shall be accepted provided that the Trustee has otherwise
determined, as provided above in this Section 3.18(e), that such bid constitutes
a fair price for any Defaulted Mortgage Loan or REO Property. Any bid by the
Special Servicer shall be unconditional; and, if accepted, the Defaulted
Mortgage Loan or REO Property shall be transferred to the Special Servicer
without recourse, representation or warranty other than customary
representations as to title given in connection with the sale of a mortgage loan
or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above and Section
6.11, the Special Servicer shall act on behalf of the Trustee in negotiating
with independent third parties 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. In
connection therewith, the Special Servicer may charge prospective bidders, and
may retain, fees that approximate the Special Servicer's actual costs in the
preparation and delivery of information pertaining to such sales or evaluating
bids without obligation to deposit such amounts into the Custodial Account. Any
sale of a Defaulted Mortgage Loan or any REO Property shall be final and
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without recourse to the Trustee or the Trust, 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.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property
pursuant to this Section 3.18 shall be for cash only and shall be on a servicing
released basis. The provisions of this Section 3.18 shall in no way limit the
obligations of the Special Servicer to proceed with respect to any Specially
Serviced Mortgage Loan in accordance with Section 3.09 at the same time that
such Mortgage Loan may be offered or eligible for sale in accordance with this
Section 3.18.
(h) Notwithstanding any of the foregoing paragraphs of this Section
3.18, the Special Servicer shall not be obligated to accept the highest cash bid
if the Special Servicer determines, in accordance with the Servicing Standard,
that rejection of such bid would be in the best interests of the
Certificateholders (as a collective whole), and the Special Servicer may,
subject to Section 6.11, accept a lower cash bid (from any Person other than
itself or an Affiliate) if it determines, in accordance with the Servicing
Standard, that acceptance of such bid would be in the best interests of the
Certificateholders (as a collective whole) (for example, if the prospective
buyer making the lower bid is more likely to perform its obligations or the
terms (other than price) offered by the prospective buyer making the lower bid
are more favorable).
SECTION 3.19. Additional Obligations of the Master Servicer.
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Collection Account on each P&I Advance Date, without any right of
reimbursement therefor, an amount equal to the lesser of (i) the aggregate
amount of all Prepayment Interest Shortfalls, if any, incurred in connection
with Principal Prepayments received during the most recently ended Collection
Period with respect to Mortgage Loans that are not Specially Serviced Mortgage
Loans and have not become REO Loans and (ii) the sum of (1) the aggregate of all
Master Servicing Fees received by the Master Servicer for such Collection Period
with respect to the entire Mortgage Pool (but only to the extent of that portion
thereof calculated at a rate of 0.05% per annum with respect to each and every
Mortgage Loan) and (2) the aggregate amount of Prepayment Interest Excesses
received in respect of the entire Mortgage Pool during such Collection Period.
(b) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 60 days of the Closing Date) notify the related ground
lessor of the transfer of such Mortgage Loan to the Trust Fund pursuant to this
Agreement and inform such ground lessor that any notices of default under the
related Ground Lease should thereafter be forwarded to the Master Servicer.
(c) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated, out of the Master Servicer's own funds, to reimburse the Special
Servicer for any Servicing Advances made by but not previously
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reimbursed to the Special Servicer, together with interest thereon at the
Reimbursement Rate from the date made to, but not including, the date of
reimbursement. Such reimbursement and any accompanying payment of interest shall
be made within ten (10) days of the request therefor by wire transfer of
immediately available funds to an account designated by the Special Servicer.
Upon the Master Servicer's reimbursement to the Special Servicer of any
Servicing Advance and payment to the Special Servicer of interest thereon, all
in accordance with this Section 3.19(c), the Master Servicer shall for all
purposes of this Agreement be deemed to have made such Servicing Advance at the
same time as the Special Servicer actually made such Servicing Advance, and
accordingly, the Master Servicer shall be entitled to reimbursement for such
Servicing Advance, together with interest thereon in accordance with Sections
3.05(a) and 3.03(d), at the same time, in the same manner and to the same extent
as the Master Servicer would otherwise have been entitled if it had actually
made such Servicing Advance at the time the Special Servicer did.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Servicing Advance,
such request to be made, in writing, at least five (5) Business Days (or, in an
emergency situation or on an urgent basis, two (2) Business Days) in advance of
the date on which such Servicing Advance is required to be made hereunder and to
be accompanied by such information and documentation regarding the subject
Servicing Advance as the Master Servicer may reasonably request. The Master
Servicer shall have the obligation to make any such Servicing Advance that it is
so requested by the Special Servicer to make, within ten (10) days of the Master
Servicer's receipt of such request. If the request is timely and properly made,
the Special Servicer shall be relieved of any obligations with respect to a
Servicing Advance that it so requests the Master Servicer to make (regardless of
whether or not the Master Servicer shall make such Servicing Advance). The
Master Servicer shall be entitled to reimbursement for any Servicing Advance
made by it at the direction of the Special Servicer, together with interest
thereon in accordance with Sections 3.05(a) and 3.03(d), at the same time, in
the same manner and to the same extent as the Master Servicer is entitled with
respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(c) ,
the Master Servicer shall not be required to reimburse the Special Servicer for,
or to make at the direction of the Special Servicer, any Servicing Advance if
the Master Servicer determines in its reasonable, good faith judgment that such
Servicing Advance, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
The Master Servicer shall notify the Special Servicer in writing of such
determination and, if applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to the Special Servicer pursuant to Section 3.05(a).
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(d) In the event that a Balloon Payment Interest Shortfall occurs
with respect to the Arden Loan during the Collection Period in which the Stated
Maturity Date for such Mortgage Loan occurs, the Master Servicer shall deposit,
out of its own funds without any right of reimbursement, in the Collection
Account on or before the related P&I Advance Date an amount equal to the entire
portion of such Balloon Payment Interest Shortfall.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) Subject to Sections 3.20(b) through 3.20(h) below and further
subject to Section 6.11, the Special Servicer (or, under the limited
circumstances set forth in Section 3.20(c), the Master Servicer) may, on behalf
of the Trustee, agree to any modification, waiver or amendment of any term of
any Mortgage Loan and respond to various Mortgagor requests for consent on the
part of the mortgagee (including the lease reviews and lease consents related
thereto), without the consent of the Trustee, any Certificateholder, the Master
Servicer (in the case of any such action taken by the Special Servicer) or,
except as expressly set forth below, the Special Servicer (in the case of any
such action taken by the Master Servicer).
(b) All modifications, waivers or amendments of any Mortgage Loan
(including the lease reviews and lease consents related thereto) shall be in
writing and shall be considered and effected in a manner consistent with the
Servicing Standard.
(c) In the case of any Mortgage Loan other than a Specially Serviced
Mortgage Loan and subject to the rights of the Special Servicer set forth below,
the Master Servicer shall be responsible for responding to any request by a
Mortgagor for the consent of the mortgagee or a modification, waiver or
amendment of any term thereof provided that such consent or modification, waiver
or amendment would not (except as permitted by Section 3.02(a) hereof) affect
the amount or timing of any of the payment terms of such Mortgage Loan
(including, without limitation, payment terms related to late payment charges),
result in the release of the related Mortgagor from any material term
thereunder, waive any rights thereunder with respect to any guarantor thereof,
relate to the release or substitution of any material collateral for such
Mortgage Loan or relate to any waiver of or granting of consent under a
"due-on-sale" or "due-on-encumbrance" clause. With respect to any action
proposed to be taken by the Master Servicer under this Section 3.20(c) where the
thresholds in clauses (i) through (v) below are exceeded, or which involves the
situations excepted by the previous sentence, the Special Sevicer only may take
such action. To the extent consistent with the foregoing, but subject to Section
3.20(f), the Master Servicer shall also be responsible for the following:
(i) Approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter to which such financial statements relate;
(ii) Approving routine leasing activity with respect to leases for
less than the lesser of (A) 20,000 square feet and (B) 20% of the related
Mortgaged Property;
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(iii) Approving a transfer of equity in a Mortgagor from one current
equity holder to another provided that such transfer of equity does not
(A) affect (if applicable) the status of such Mortgagor or such equity
holder as a special purpose, bankruptcy-remote entity, (B) result in a
change of control of such Mortgagor, (C) cause the transferee to hold more
than 49% of the equity in such Mortgagor or (D) relate to a Mortgage Loan
that represents 2% or more of the then aggregate principal balance of the
Mortgage Pool;
(iv) Approving annual budgets for the related Mortgaged Property,
provided that no such budget (A) relates to a fiscal year in which an
Anticipated Repayment Date occurs, (B) provides for the payment of
operating expenses in an amount equal to more than 110% of the amounts
budgeted therefor for the prior year or (C) provides for the payment of
any material expenses to any affiliate of the Mortgagor (other than with
respect to the payment of the management fee to any property manager if
such management fee is no more than the management fee in effect on the
Cut-off Date); and
(v) Approving a change of the property manager at the request of the
related Mortgagor, provided that (A) the successor property manager is not
affiliated with the Mortgagor and is a nationally or regionally recognized
manager of similar properties and (B) the related Mortgage Loan does not
represent 2% or more of the then aggregate principal balance of the
Mortgage Pool.
Except as permitted by Section 3.02(a) and this Section 3.20(c), the Master
Servicer may not agree to waive, modify or amend any term of any Mortgage Loan
or respond to any Mortgagor requests for mortgagee consent. Furthermore, the
Master Servicer may not agree to any modification, waiver or amendment of any
term of any Mortgage Loan that would cause REMIC I, REMIC II or REMIC III to
fail to qualify as a REMIC under the Code or result in the imposition of any tax
on "prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions.
(d) Except as provided in Section 3.02(a), Section 3.08 or Section
3.20(e), the Special Servicer, on behalf of the Trustee, shall not agree or
consent to any modification, waiver or amendment of any term of any Mortgage
Loan that would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Default Interest and other amounts
payable as additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Mortgage Note prohibits
Principal Prepayments;
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(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(e), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released; or
(iv) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impair the security for such Mortgage Loan or reduce
the likelihood of timely payment of amounts due thereon.
(e) Notwithstanding Section 3.20(d), but subject to the third
paragraph of this Section 3.20(e), the Special Servicer may (i) reduce the
amounts owing under any Specially Serviced Mortgage Loan by forgiving principal,
accrued interest or any Prepayment Premium or Yield Maintenance Charge, (ii)
reduce the amount of the monthly payment on any Specially Serviced Mortgage
Loan, including by way of a reduction in the related Mortgage Rate, (iii)
forbear in the enforcement of any right granted under any Mortgage Note or
Mortgage relating to a Specially Serviced Mortgage Loan or (iv) accept a
Principal Prepayment on any Specially Serviced Mortgage Loan during any Lockout
Period; provided that (A) the related Mortgagor is in default with respect to
the Specially Serviced Mortgage Loan or, in the reasonable, good faith judgment
of the Special Servicer, such default is reasonably foreseeable, (B) in the
reasonable, good faith judgment of the Special Servicer, such modification,
waiver or amendment would increase the recovery on the Mortgage Loan to
Certificateholders on a net present value basis (the relevant discounting of
amounts that will be distributable to Certificateholders to be performed at the
related Mortgage Rate) and (C) such modification, waiver or amendment would not
cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC under the
Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions.
In addition, notwithstanding Section 3.20(d), but subject to the
third paragraph of this Section 3.20(e), the Special Servicer may extend the
date on which any Balloon Payment is scheduled to be due in respect of a
Specially Serviced Mortgage Loan if the conditions set forth in the proviso to
the prior paragraph are satisfied and, if the extension is for more than six
months beyond the related Stated Maturity Date, the Special Servicer has
obtained an appraisal, in accordance with the standards of the Appraisal
Institute, of the related Mortgaged Property, performed by an Independent
Appraiser, in connection with such extension, which appraisal supports the
determination of the Special Servicer contemplated by clause (B) of the proviso
to the immediately preceding paragraph.
In no event shall the Special Servicer (i) extend the maturity date
of a Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date, (ii) extend the maturity date of any Mortgage Loan which has
a Mortgage Rate below the prevailing interest rate for comparable loans at the
time of such modification as determined by the Special Servicer, unless (A) such
Mortgage Loan is a Balloon Loan, (B) the related Mortgagor has failed to make
the Balloon Payment at its Stated Maturity Date and (C) such Balloon Loan is not
a Specially Serviced Mortgage
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Loan (other than by reason of the failure to make its Balloon Payment) and has
not been delinquent with respect to a Monthly Payment (other than the Balloon
Payment) in the preceding twelve months, in which case the Special Servicer may
permit up to three one-year extensions at the then-existing Mortgage Rate for
such Mortgage Loan (provided that such limitation of extensions made at below
market rate shall not limit the ability of the Special Servicer to extend the
maturity date of any Mortgage Loan at an interest rate at or in excess of the
prevailing rate for comparable loans at the time of such modification), (iii) if
the Mortgage Loan is secured by a Ground Lease (but not the related fee
interest), extend the maturity date of such Mortgage Loan beyond a date which is
less than 10 years prior to the expiration of the term of such Ground Lease;
(iv) reduce the Mortgage Rate to a rate below the-then prevailing interest rate
for comparable loans at the time of such modification, as determined by the
Special Servicer; or (v) defer interest due on any Mortgage Loan in excess of
10% of the unpaid principal balance of such Mortgage Loan or defer the
collection of interest on any Mortgage Loan without accruing interest on such
deferred interest at a rate at least equal to the Mortgage Rate of such Mortgage
Loan.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer and describing in reasonable detail the basis for the Special
Servicer's determination. The Special Servicer shall attach to such Officer's
Certificate any information including but not limited to income and expense
statements, rent rolls, property inspection reports and appraisals that support
such determination.
(f) Notwithstanding anything to the contrary in this Agreement, none
of the Trustee, the Master Servicer or the Special Servicer, as applicable,
shall take any of the following actions unless (1) the mortgagee is not given
discretion under the terms of the related Mortgage Loan or (2) it has received
prior written confirmation from each Rating Agency that such action will not
result in a qualification, downgrade or withdrawal of any of the ratings
assigned by such Rating Agency to the Certificates:
(i) with respect to any Mortgaged Property that secures a Mortgage
Loan with an unpaid principal balance that is at least equal to the lesser
of $20,000,000 and 2% of the then aggregate principal balance of the
Mortgage Pool, the giving of any consent, approval or direction regarding
the termination of the related property manager or the designation of any
replacement property manager;
(ii) with respect to each Mortgage Loan with an unpaid principal
balance that is at least equal to the lesser of $20,000,000 and 2% of the
then aggregate principal balance of the Mortgage Pool, the giving of any
consent or approval regarding the transfer of any interest in the related
Mortgaged Property or of any direct or indirect interest in (A) the
related Mortgagor or (B) the general partner(s), managing member(s),
shareholder(s), limited partner(s) or other equity owner(s) of the related
Mortgagor or any other entity required to be a single purpose entity in
respect of such Mortgage Loan;
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(iii) with respect to the Mansards Loan, the giving of any consent
or approval to remove or replace the "Lock-box Bank" (as defined in the
related loan documents);
(iv) with respect to the Inland Loan, the giving of any consent or
approval to (A) adopting new budgets, or modifying, changing,
supplementing, altering or amending any provision of existing budgets, or
(B) the use, or engagement, of insurance companies; and
(v) with respect to the Bayside Loan, the giving of any consent or
approval to (A) liquidate permitted investments prior to their maturity or
(B) modify, change, supplement, alter or amend any term, condition or
covenant of the related ground lease.
(g) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
modification, waiver or amendment so permit. The foregoing shall in no way limit
the Special Servicer's ability to charge and collect from the Mortgagor costs
otherwise collectible under the terms of the related Mortgage Note and this
Agreement together with interest thereon.
(h) The Special Servicer or Master Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and, further, by the terms of this Agreement and
applicable law, require that such Mortgagor pay to it (i) as additional
servicing compensation, a reasonable or customary fee for the additional
services performed in connection with such request, and (ii) any related costs
and expenses incurred by it. In no event shall the Special Servicer or Master
Servicer be entitled to payment for such fees or expenses unless such payment is
collected from the related Mortgagor.
(i) The Special Servicer and Master Servicer shall each notify the
other, any related Sub-Servicers and the Trustee, in writing, of any
modification, waiver or amendment of any term of any Mortgage Loan (including
fees charged the Mortgagor) agreed to by it and the date thereof, and shall
deliver to the Trustee or any related Custodian for deposit in the related
Mortgage File (with a copy to be delivered to or retained by, as applicable, the
Master Servicer), an original recorded counterpart of the agreement relating to
such modification, waiver or amendment, promptly (and in any event within 30
calendar days) following the execution and recordation thereof.
(j) To the extent that either the Master Servicer or Special
Servicer waives any Default Interest or late payment charge in respect of any
Mortgage Loan, whether pursuant to Section 3.02(a) or this Section 3.20, the
respective amounts of additional servicing compensation payable to the Master
Servicer and the Special Servicer out of such Default Interest or late payment
charges shall be reduced proportionately based upon the respective amounts that
had been payable thereto out of such Default Interest or late payment charges
immediately prior to such waiver.
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(k) If, with respect to any Defeasance Loan under which the lender
can require defeasance in lieu of prepayment, the Master Servicer shall receive
a notice from the related Mortgagor that it intends to prepay the related
Defeasance Loan in accordance with the terms thereof, then, except as set forth
below, the Master Servicer shall (i) promptly respond to such notice in a manner
which would require that the Mortgagor pledge Defeasance Collateral in lieu of
such prepayment pursuant to the terms of the related Mortgage Note, (ii) notify
each Rating Agency, the Trustee, the Underwriter and the Special Servicer of its
request to the Mortgagor to defease a Mortgage Loan and (iii) upon the written
confirmation from each Rating Agency described in the next paragraph, take such
further action as provided in such Mortgage Note to effectuate such defeasance,
including the purchase and perfection of the Defeasance Collateral in the name
of the Trustee, as trustee for the registered holders of LB Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 1998-C4.
Notwithstanding the above, but subject to the related Mortgage Loan
documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral in lieu of prepayment under a Defeasance Loan if (i) such defeasance
would occur within two years of the Startup Day, (ii) such Defeasance Loan (or
any applicable agreement executed in connection with the related defeasance)
provides that the Mortgagor will be liable for any shortfalls from the
Defeasance Collateral or otherwise become subjected to recourse liability with
respect to the Defeasance Loan, (iii) such defeasance would result in a new
Mortgagor on the Defeasance Loan (unless such new Mortgagor is acquiring the
Mortgaged Property that was the initial security for the Defeasance Loan), or
(iv) each Rating Agency does not confirm in writing to the Master Servicer that
the acceptance of a pledge of the Defeasance Collateral in lieu of a full
prepayment will not result in a qualification, downgrade or withdrawal of the
ratings then assigned by it to any Class of Certificates.
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan and if the Master Servicer is not also the
Special Servicer, the Master Servicer shall immediately give notice thereof, and
shall deliver a copy of the related Servicing File, to the Special Servicer and
shall use reasonable efforts to provide the Special Servicer with all
information, documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan either in the Master Servicer's or any of its directors',
officers', employees', affiliates' or agents' possession or control or otherwise
available to the Master Servicer without undue burden or expense, and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto without acting through a Sub-Servicer. The Master Servicer
shall use reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event;
provided, however, if the information, documents and records requested by the
Special Servicer are not contained in the Servicing File, the Master Servicer
shall have such period of time as reasonably necessary to make such delivery.
The Special Servicer may conclusively rely on the Master Servicer's
determination that a Servicing Transfer Event has occurred giving rise to a
Mortgage Loan becoming
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a Specially Serviced Mortgage Loan. The Special Servicer shall not be liable or
in default hereunder for any reasonable act or failure to act because of or
arising out of the Master Servicer's failure to deliver information, documents
or records with respect to any Specially Serviced Mortgage Loan in accordance
with the requirements hereof.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File and all other information, documents and
records that were not part of the Servicing File when it was delivered to the
Special Servicer within five Business Days of the occurrence, to the Master
Servicer (or such other Person as may be directed by the Master Servicer) and
upon giving such notice, and returning such Servicing File, to the Master
Servicer (or such other Person as may be directed by the Master Servicer), the
Special Servicer's obligation to service such Mortgage Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such
Mortgage Loan, shall terminate, and the obligations of the Master Servicer to
service and administer such Mortgage Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of newly executed documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the Master Servicer), and
shall provide to the Master Servicer copies of any additional related Mortgage
Loan information, including correspondence with the related Mortgagor.
(c) On or before each Determination Date, the Special Servicer shall
deliver to the Master Servicer, the Trustee and each Rating Agency (or such
other Person as may be directed by the Master Servicer) a statement in writing
and in computer readable format (the form of such statement to be agreed upon by
the Master Servicer and the Special Servicer) describing, on a loan-by-loan and
property-by-property basis, (1) insofar as it relates to Specially Serviced
Mortgage Loans and REO Properties, the information described in clauses (vi)
through (xv) of Section 4.02(a) (with respect to information set forth in such
clauses related to prior Distribution Dates and/or periods, the Special Servicer
may conclusively rely on information furnished to it by the Master Servicer or
the Trustee) and, insofar as it relates to the Special Servicer, the information
described in clauses (xxiv) and (xxx) of Section 4.02(a), (2) the amount of all
payments, Insurance Proceeds and Liquidation Proceeds received, and the amount
of any Realized Loss incurred, with respect to each Specially Serviced Mortgage
Loan during the related Collection Period, and the amount of all REO Revenues,
Insurance Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each REO Property during the related
Collection Period, (3) the amount, purpose and date of all Servicing Advances
made by the Special Servicer with respect to each Specially Serviced Mortgage
Loan and REO Property during the related Collection Period and (4) such
additional information relating to the Specially Serviced Mortgage Loans and REO
Properties as the Master Servicer reasonably requests to enable it to perform
its responsibilities under this Agreement. Notwithstanding the foregoing
provisions of this subsection (c), the Master 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
reasonably
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available to the Master Servicer required by the Special Servicer to perform its
duties under this Agreement.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects, requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement and, with the exception of Section
7.01(a)(ix), provides for events of default with respect to the Sub-Servicer
substantially the same as those set forth in Section 7.01; (ii) provides that if
the Master Servicer or the Special Servicer, as the case may be, 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 may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or the Special Servicer, as
the case may be, under such agreement or may terminate such subservicing
agreement without cause and without payment of any penalty or termination fee
(provided, however, that those Sub-Servicing Agreements in effect as of the
Closing Date (or, if being negotiated as of the Closing Date, in effect within
60 days thereafter) may only be terminated by the Trustee or its designee as
contemplated by Section 3.22(d) hereof and in such additional manner as is
provided in such Sub-Servicing Agreement); (iii) provides that the Trustee, for
the benefit of the Certificateholders, shall be a third party beneficiary under
such agreement, but that (except to the extent the Trustee or its designee
assumes the obligations of the Master Servicer or the Special Servicer, as the
case may be, thereunder as contemplated by the immediately preceding clause
(ii)) none of the Trustee, the Trust Fund, any successor Master Servicer or
Special Servicer, as the case may be, or any Certificateholder shall have any
duties under such agreement or any liabilities arising therefrom; (iv) permits
any purchaser of a Mortgage Loan pursuant to this Agreement to terminate such
agreement with respect to such purchased Mortgage Loan at its option and without
penalty; (v) does not permit the Sub-Servicer to enter into or consent to any
modification, waiver or amendment or otherwise take any action on behalf of the
Special Servicer contemplated by Section 3.08, Section 3.09 and Section 3.20
hereof without the consent of such Special Servicer; and (vi) does not permit
the Sub-Servicer any direct rights of indemnification that may be satisfied out
of assets of the Trust Fund. In addition, each Sub-Servicing Agreement entered
into by the Master Servicer (including any with an effective date on or before
the Closing Date) shall provide that such agreement shall, with respect to any
Mortgage Loan serviced thereunder, terminate at the time such Mortgage Loan
becomes a Specially Serviced Mortgage Loan (or, alternatively, be subject to the
Special Servicer's rights to service the Mortgage Loan for so long as such
Mortgage Loan continues to be a Specially Serviced Mortgage Loan), and each
Sub-Servicing Agreement entered into by the Special Servicer shall relate only
to Specially Serviced Mortgage Loans and shall terminate with respect to any
such Mortgage Loan which ceases to be a Specially Serviced Mortgage Loan. The
Master Servicer and the Special Servicer each shall deliver to the Trustee and
to each other copies of all Sub-Servicing Agreements, and any amendments thereto
and modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. References in this Agreement to actions taken or to
be taken by the Master Servicer or
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the Special Servicer include actions taken or to be taken by a Sub-Servicer on
behalf of the Master Servicer or the Special Servicer, as the case may be; and,
in connection therewith, all amounts advanced by any Sub-Servicer to satisfy the
obligations of the Master Servicer or the Special Servicer hereunder to make P&I
Advances or Servicing Advances shall be deemed to have been advanced by the
Master Servicer or the Special Servicer, as the case may be, out of its own
funds and, accordingly, such P&I Advances or Servicing 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 Master Servicer or the Special Servicer, as the
case may be. For so long as they are outstanding, Advances shall accrue interest
in accordance with Sections 3.03(d) and 4.03(d), such interest to be allocable
between the Master Servicer or the Special Servicer, as the case may be, and
such Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other, the Trustee and
the Depositor in writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer (i) 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, and (ii)
shall be an approved conventional seller/servicer of mortgage loans for FHLMC or
FNMA or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust Fund) monitor the performance and enforce the
obligations of their respective Sub-Servicers under the related Sub-Servicing
Agreements. 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 Master
Servicer or the Special Servicer, as applicable, in its good faith business
judgment, would require were it the owner of the Mortgage Loans.
(d) In the event of the resignation, removal or other termination of
the Master Servicer or any successor Master Servicer hereunder for any reason,
the Trustee or other Person succeeding such resigning, removed or terminated
party as Master Servicer, shall elect, with respect to any Sub-Servicing
Agreement in effect as of the Closing Date (or, if being negotiated as of the
Closing Date, in effect within 60 days thereafter) that still exists at the time
of such termination: (i) to assume the rights and obligations of the Master
Servicer under such Sub-Servicing Agreement and continue the sub-servicing
arrangements thereunder on the same terms (including without limitation the
obligation to pay the same sub-servicing fee); (ii) to enter into a new
Sub-Servicing Agreement with such Sub-Servicer on such terms as the Trustee or
other successor Master Servicer and such Sub-Servicer shall mutually agree (it
being understood that such Sub-Servicer is under no obligation to accept any
such new Sub-Servicing Agreement or to enter into or continue negotiations with
the Trustee or other successor Master Servicer in which case the existing
Sub-Servicing Agreement shall remain in effect), provided that neither the
Trustee nor any successor Master Servicer shall enter into a new Sub-Servicing
Agreement with a Sub-Servicer that was a party to a Sub-Servicing Agreement
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as of the Closing Date, if such new Sub-Servicing Agreement amends, alters or
fails to restate any rights of the Underwriter under the existing Sub-Servicing
Agreement with respect to the termination of the Sub-Servicer and the
appointment of a successor thereto or any rights of the Underwriter as a third
party beneficiary under such Sub-Servicing Agreement, unless the successor
Master Servicer has obtained the prior written consent to the terms of such new
Sub-Servicing Agreement from the Underwriter; or (iii) to terminate the
Sub-Servicing Agreement if (but only if) an Event of Default (as defined in such
Sub-Servicing Agreement) or an event described in the following paragraph has
occurred and is continuing, without paying any sub-servicer termination fee
(except as and to the extent contemplated by the following paragraph), and in
any additional manner provided for in such Sub-Servicing Agreement.
If the Master Servicer is terminated and, in order to obtain a
successor, it is necessary to terminate the Sub-Servicer under any Sub-Servicing
Agreement contemplated by the prior paragraph, then the Trustee shall be
permitted to (and such Sub-Servicing Agreement shall provide that the Trustee
may) terminate such Sub-Servicer without the payment of any penalty or fee. In
connection therewith, (i) subject to Section 7.02, the Trustee shall use
reasonable efforts to obtain a successor master servicer that is willing to
utilize such Sub-Servicer, (ii) the parties hereto shall keep confidential the
termination rights contemplated by this paragraph (provided that this provision
is not intended to limit a potential successor's ability to review this
Agreement) and (iii) the Trustee shall notify the Depositor prior to terminating
such Sub-Servicer. If the Trustee is unable to obtain a successor master
servicer that is willing to utilize such Sub-Servicer and meets the requirements
of Sections 6.02 and 7.02, then the Trustee shall use reasonable efforts to
solicit good faith bids for the primary servicing of the Mortgage Loans covered
by such Sub-Servicing Agreement, shall appoint as successor master servicer the
Person qualified hereunder in accordance with Sections 6.02 and 7.02 to act as
Master Servicer that submitted the highest cash bid for such primary servicing
and shall deliver to such Sub-Servicer the proceeds (net of related expenses)
from the sale of such primary servicing; provided that the Trustee shall not be
responsible if, despite its reasonable efforts, a fair market value bid for such
primary servicing cannot be obtained or no party submits a bid, in which case
the Trustee shall appoint a successor Master Servicer qualified in accordance
with Sections 6.02 and 7.02.
The Sub-Servicing Agreements in effect or being negotiated as of the
Closing Date are listed on Exhibit K hereto.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee and
the Certificateholders for the performance of their respective 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 each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible.
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SECTION 3.23. Representations and Warranties of the Master Servicer.
(a) The Master Servicer, in such capacity, hereby represents,
warrants and covenants to the Trustee, for its own benefit and the benefit of
the Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that:
(i) The Master Servicer is a national banking association, duly
organized and in good standing under the laws of the United States of
America, and the Master 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 Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, receivership, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally and the rights of creditors of banks, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Master 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 Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
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(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer, the outcome
of which, in the Master Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Master Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Master Servicer of or
compliance by the Master Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(ix) The Master Servicer has reviewed all Sub-Servicing Agreements
in effect as of the Closing Date and will review all Sub-Servicing
Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer set
forth in Section 3.23(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 Fund 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.
(c) Any successor Master Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 3.23(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.23(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 3.24. Representations and Warranties of the Special
Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the Trustee, for its own benefit and the benefit of
the Certificateholders, and to the Depositor and the Master Servicer, as of the
Closing Date, that:
(i) The Special Servicer is a corporation, validly existing and in
good standing under the laws of the State of Florida, 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.
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(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer, the
outcome of which, in the Special Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the Special Servicer
from entering into this Agreement or materially and adversely affect the
ability of the Special Servicer to perform its obligations under this
Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Special Servicer of or
compliance by the Special Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Special Servicer under this Agreement.
(viii) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
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(ix) The Special Servicer will review all Sub-Servicing Agreements
entered into by it after the Closing Date.
(b) The representations and warranties of the Special Servicer set
forth in Section 3.24(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 Fund 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.
(c) Any successor Special Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 3.24(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.24(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 3.25. Year 2000 Readiness.
Each of the Master Servicer and the Special Servicer shall take all
action reasonably necessary to assure that its computer-based systems are able
to operate and effectively process data including dates on and after January 1,
2000. At the request of any such party, any other such party shall provide the
requesting party with reasonable assurance of such other party's year 2000
readiness. The Trustee shall take such action as is reasonably necessary to cure
any deficiencies with regard to the processing or calculation of dates beyond
December 31, 1999 in the internally maintained computer software systems
maintained by the Trustee in the conduct of its trust business which would
materially and adversely affect its abilities to perform its obligations under
this Agreement. Without limiting any rights or remedies of the Trust, the
Certificateholders or any other party hereto for a breach under any other
Section of this Agreement that may arise out of the failure of the Master
Servicer, the Special Servicer or the Trustee to be year 2000 ready by January
1, 2000, the sole remedy of the Trust, the Certificateholders and any other
party hereto with respect to a breach on the part of the Master Servicer, the
Special Servicer or the Trustee to comply with this Section 3.25 shall be to
terminate the defaulting party in accordance with the applicable provisions of
Article VII.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date prior to the Final Distribution Date,
distributions in respect of the Senior Certificates out of the Available
Distribution Amount will be made as follows:
(i) On each Distribution Date prior to the earlier of the Class A
Principal Distribution Cross-Over Date and the Final Distribution Date,
the Trustee shall, based on information provided by the Master Servicer
and the Special Servicer, withdraw from the Collection Account and apply
84% of the Group 1 Distribution Amount for such Distribution Date, for the
following purposes and in the following order of priority, in each case to
the extent of remaining available funds:
(A) to distributions of interest to the Holders of the Class
A-1-a, the Holders of the Class A-1-b and the Holders of the Class X
Certificates, up to an amount equal to, and pro rata as among such
Classes in accordance with, all unpaid Distributable Certificate
Interest accrued in respect of such Class of Certificates (or, in
the case of the Class X Certificates, the portion thereof that
constitutes Distributable Component Interest in respect of
Components X-A-1-a and X-A-1-b of the Class X Certificates) for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates, if any;
(B) to distributions of principal to the Holders of the Class
A-1-a Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to 84% of the
Loan Group 1 Principal Amounts for such Distribution Date;
(C) after the Class Principal Balance of the Class A-1-a
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class A-1-b Certificates, up to an amount (not
to exceed the Class Principal Balance of such Class of Certificates
outstanding immediately prior to such Distribution Date) equal to
84% of the Loan Group 1 Principal Amounts for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of the Class A-1-a Certificates pursuant to Section
4.01(a)(i)(B) above);
(D) if and to the extent not otherwise paid or payable, as the
case may be, pursuant to Section 4.01(a)(ii) below, to distributions
of interest to the Holders of the Class A-2 Certificates and the
Holders of the Class X Certificates, up to an amount equal to, and
pro rata as between such Classes in accordance with, all unpaid
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Distributable Certificate Interest accrued in respect of each such
Class of Certificates (or, in the case of the Class X Certificates,
the portion thereof that constitutes Distributable Component
Interest in respect of Components X-A-2, X-B, X-C, X-D, X-E, X-F,
X-G, X-H, X-J, X-K, X-L, X-M and X-N of the Class X Certificates)
for such Distribution Date and, to the extent not previously paid,
for all prior Distribution Dates, if any; and
(E) if the Class Principal Balances of the Class A-1-a and
Class A-1-b Certificates have been reduced to zero, to distributions
of principal to the Holders of the Class A-2 Certificates, up to an
amount (not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately preceding such Distribution
Date, net of any and all distributions of principal paid or payable,
as the case may be, in respect of such Class of Certificates
pursuant to Section 4.01(a)(ii) below) equal to 84% of the Loan
Group 1 Principal Amounts for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders
of the Class A-1- a Certificates pursuant to Section 4.01(a)(i)(B)
above and/or to the Holders of the Class A-1-b Certificates pursuant
to Section 4.01(a)(i)(C) above).
(ii) On each Distribution Date prior to the earlier of the Class A
Principal Distribution Cross-Over Date and the Final Distribution Date,
the Trustee shall, based on information provided by the Master Servicer
and the Special Servicer, withdraw from the Collection Account and apply
the other 16% of the Group 1 Distribution Amount for such Distribution
Date, together with 100% of the Group 2 Distribution Amount for such
Distribution Date, for the following purposes and in the following order
of priority, in each case to the extent of remaining available funds:
(A) to distributions of interest to the Holders of the Class
A-2 and the Holders of the Class X Certificates, up to an amount
equal to, and pro rata as among such Classes in accordance with, all
unpaid Distributable Certificate Interest accrued in respect of each
such Class of Certificates (or, in the case of the Class X
Certificates, the portion thereof that constitutes Distributable
Component Interest in respect of Components X-A-2, X-B, X-C, X-D,
X-E, X-F, X-G, X-H, X-J, X-K, X-L, X-M and X-N of the Class X
Certificates) for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates, if any;
(B) to distributions of principal to the Holders of the Class
A-2 Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of Certificates outstanding immediately prior
to such Distribution Date) equal to the aggregate of 100% of the
Loan Group 2 Principal Amounts for such Distribution Date and 16% of
the Loan Group 1 Principal Amounts for such Distribution Date;
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(C) if and to the extent not otherwise paid or payable, as the
case may be, pursuant to Section 4.01(a)(i) above, to distributions
of interest to the Holders of the Class A-1-a Certificates, the
Holders of the Class A-1-b Certificates and the Holders of the Class
X Certificates, up to an amount equal to, and pro rata as among such
Classes in accordance with, all unpaid Distributable Certificate
Interest accrued in respect of each such Class of Certificates (or,
in the case of the Class X Certificates, the portion thereof that
constitutes Distributable Component Interest in respect of
Components X-A-1-a and X-A-1-b of the Class X Certificates) for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(D) after the Class Principal Balance of the Class A-2
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class A-1-a Certificates, up to an amount (not
to exceed the Class Principal Balance of such Class of Certificates
outstanding immediately prior to such Distribution Date, net of any
and all distributions of principal paid or payable, as the case may
be, in respect of such Class of Certificates pursuant to Section
4.01(a)(i) above) equal to the aggregate of 100% of the Loan Group 2
Principal Amounts for such Distribution Date and 16% of the Loan
Group 1 Principal Amounts for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders
of the Class A-2 Certificates pursuant to Section 4.01(a)(ii)(B)
above); and
(E) after the Class Principal Balances of the Class A-2 and
Class A-1-a Certificates have been reduced to zero, to distributions
of principal to the Holders of the Class A-1-b Certificates, up to
an amount (not to exceed the Class Principal Balance of such Class
of Certificates outstanding immediately prior to such Distribution
Date, net of any and all distributions of principal paid or payable,
as the case may be, in respect of such Class of Certificates
pursuant to Section 4.01(a)(i) above) equal to the aggregate of 100%
of the Loan Group 2 Principal Amounts for such Distribution Date and
16% of the Loan Group 1 Principal Amounts for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of the Class A-2 Certificates pursuant to Section
4.01(a)(ii)(B) above and/or to the Holders of the Class A-1-a
Certificates pursuant to Section 4.01(a)(ii)(C) above).
(iii) Notwithstanding Sections 4.01(a)(i) and 4.01(a)(ii) above, if
for any Distribution Date prior to the earlier of the Class A Principal
Distribution Cross-Over Date and the Final Distribution Date the
application of the Group 1 Distribution Amount and the Group 2
Distribution Amount for such date in the manner provided in Sections
4.01(a)(i) and 4.01(a)(ii) above would result in a shortfall in the
payment of Distributable Certificate Interest with respect to any Class of
Senior Certificates, then the Trustee shall apply the entire Available
Distribution Amount for such date first to pay interest to the Holders of
the respective Classes of Senior Certificates, up to an amount equal to,
and pro rata as among such Classes in accordance with, all unpaid
Distributable Certificate Interest in respect of each
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such Class of Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates, if any. The Trustee
shall then apply any remaining portion of such Available Distribution
Amount (up to the Principal Distribution Amount for the subject
Distribution Date) to make distributions of principal on the Class A-1-a,
Class A-1-b and Class A-2 Certificates as follows:
(A) an amount equal to the lesser of (1) 84% of the Group 1
Principal Amounts for the subject Distribution Date and (2) the
product of (I) such entire remaining portion of such Available
Distribution Amount, multiplied by (II) a fraction, the numerator of
which is equal to 84% of the Group 1 Principal Amounts for the
subject Distribution Date, and the denominator of which is equal to
the Principal Distribution Amount for the subject Distribution Date,
shall be applied to make distributions of principal on the Class
A-1-a Certificates, the Class A-1-b Certificates and the Class A-2
Certificates, in that order, in each case until the related Class
Principal Balance is reduced to zero; and
(B) an amount equal to the lesser of (1) 16% of the Group 1
Principal Amounts and 100% of the Group 2 Principal Amounts for the
subject Distribution Date and (2) the product of (I) such entire
remaining portion of such Available Distribution Amount, multiplied
by (II) a fraction, the numerator of which is equal to 16% of the
Group 1 Principal Amounts and 100% of the Group 2 Principal Amounts
for the subject Distribution Date, and the denominator of which is
equal to the Principal Distribution Amount for the subject
Distribution Date, shall be applied to make distributions of
principal on the Class A-2 Certificates, the Class A-1-a
Certificates and the Class A-1-b Certificates, in that order, in
each case until the related Certificate Balance is reduced to zero.
(iv) On each Distribution Date coinciding with or following the
Class A Principal Distribution Cross-Over Date but prior to the Final
Distribution Date, the Trustee shall, based on information provided by the
Master Servicer and the Special Servicer, withdraw from the Collection
Account and apply the Available Distribution Amount for such Distribution
Date, for the following purposes and in the following order of priority,
in each case to the extent of remaining available funds:
(A) to distributions of interest to the Holders of the
respective Classes of Senior Certificates, up to an amount equal to,
and pro rata as among such Classes in accordance with, all unpaid
Distributable Certificate Interest accrued in respect of each such
Class of Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates, if any;
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(B) to distributions of principal to the Holders of the
respective Classes of Class A Certificates, up to an amount equal
to, and pro rata as among such Classes in accordance with, the Class
Principal Balance of each such Class of Certificates outstanding
immediately prior to such Distribution Date; and
(C) to distributions to the Holders of the respective Classes
of Class A Certificates, up to an amount equal to, pro rata as among
such Classes in accordance with, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to each such Class of Certificates and not
previously reimbursed.
If no Class A Principal Distribution Cross-Over Date occurs, or if
the Class A Principal Distribution Cross-Over Date coincides with the
Final Distribution Date, this Section 4.01(a)(iv) shall be inapplicable
(all distributions on the Final Distribution Date to be made in accordance
with Section 9.01).
(v) All distributions of interest made in respect of the Class X
Certificates on any Distribution Date pursuant to Section 4.01(a)(i)(A)
and Section 4.01(a)(ii)(C) above shall be deemed to have been made in
respect of Components X-A-1-a and X-A-1-b of the Class X Certificates, pro
rata in accordance with the respective amounts of Distributable Component
Interest in respect of such Components of the Class X Certificates for
such Distribution Date and, to the extent not previously deemed paid
pursuant to this Section 4.01(a)(v), for all prior Distribution Dates, if
any. All distributions of interest made in respect of the Class X
Certificates on any Distribution Date pursuant to Section 4.01(a)(i)(D)
and Section 4.01(a)(ii)(A) above shall be deemed to have been made in
respect of Components X-A-2, X-B, X-C, X-D, X-E, X-F, X-G, X-H, X-J, X-K,
X-L, X-M and X-N of the Class X Certificates, pro rata in accordance with
the respective amounts of Distributable Component Interest in respect of
such Components of the Class X Certificates for such Distribution Date
and, to the extent not previously deemed paid pursuant to this Section
4.01(a)(iv), for all prior Distribution Dates, if any. All distributions
of interest made in respect of the Class X Certificates on any
Distribution Date pursuant to Section 4.01(a)(iii) or Section 4.01(a)(iv)
above shall be deemed to have been made in respect of Components X-A-1-a,
X-A-1-b, X-A- 2, X-B, X-C, X-D, X-E, X-F, X-G, X-H, X-J, X-K, X-L, X-M and
X-N of the Class X Certificates, pro rata in accordance with the
respective amounts of Distributable Component Interest in respect of such
Components of the Class X Certificates for such Distribution Date and, to
the extent not previously deemed paid pursuant to this Section 4.01(a)(v),
for all prior Distribution Dates, if any.
(b) On each Distribution Date prior to the Final Distribution Date,
the Trustee shall, based on information provided by the Master Servicer and the
Special Servicer, withdraw from the Collection Account and apply the Subordinate
Available Distribution Amount for such Distribution Date, for the following
purposes and in the following order of priority, in each case to the extent of
remaining available funds:
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(i) to distributions of interest to the Holders of the Class B
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(ii) after the Class Principal Balances of the Class A Certificates
have been reduced to zero, to distributions of principal to the Holders of
the Class B Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A
Certificates pursuant to Section 4.01(a) above).
(iii) to distributions to the Holders of the Class B Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(iv) to distributions of interest to the Holders of the Class C
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(v) after the Class Principal Balance of the Class B Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class C Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(vi) to distributions to the Holders of the Class C Certificates, up
to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(vii) to distributions of interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(viii) after the Class Principal Balance of the Class C Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class D Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date
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to the Holders of any other Class of Certificates pursuant to Section
4.01(a) above or pursuant to any prior clause of this Section 4.01(b));
(ix) to distributions to the Holders of the Class D Certificates, up
to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(x) to distributions of interest to the Holders of the Class E
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xi) after the Class Principal Balance of the Class D Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class E Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xii) to distributions to the Holders of the Class E Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xiii) to distributions of interest to the Holders of the Class F
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xiv) after the Class Principal Balance of the Class E Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class F Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xv) to distributions to the Holders of the Class F Certificates, up
to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
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(xvi) to distributions of interest to the Holders of the Class G
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xvii) after the Class Principal Balance of the Class F Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class G Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xviii) to distributions to the Holders of the Class G Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xix) to distributions of interest to the Holders of the Class H
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xx) after the Class Principal Balance of the Class G Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class H Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xxi) to distributions to the Holders of the Class H Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xxii) to distributions of interest to the Holders of the Class J
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxiii) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class J Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount
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for such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of this
Section 4.01(b));
(xxiv) to distributions to the Holders of the Class J Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xxv) to distributions of interest to the Holders of the Class K
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxvi) after the Class Principal Balance of the Class J Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class K Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xxvii) to distributions to the Holders of the Class K Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xxviii) to distributions of interest to the Holders of the Class L
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxix) after the Class Principal Balance of the Class K Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class L Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xxx) to distributions to the Holders of the Class L Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
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(xxxi) to distributions of interest to the Holders of the Class M
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxxii) after the Class Principal Balance of the Class L
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class M Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xxxiii) to distributions to the Holders of the Class M
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates and not previously reimbursed;
(xxxiv) to distributions of interest to the Holders of the Class N
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxxv) after the Class Principal Balance of the Class M Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class N Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to Section 4.01(a) above or pursuant to any prior
clause of this Section 4.01(b));
(xxxvi) to distributions to the Holders of the Class N Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to such Class
of Certificates and not previously reimbursed;
(xxxvii) to make distributions to the Holders of the Class R-III
Certificates, in an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.01(j), over (B)
the aggregate distributions made in respect of the Regular Interest
Certificates on such Distribution Date pursuant to Section 4.01(a) above
and Section 4.01(b)(i) through Section 4.01(b)(xxxvi) above;
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(xxxviii) to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.01(k), over (B)
the aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.01(j); and
(xxxix) to make distributions to the Holders of the Class R-I
Certificates, up to an amount equal to the excess, if any, of (A) the
Available Distribution Amount for such Distribution Date, over (B) the
aggregate distributions made in respect of the other Classes of
Certificates on such Distribution Date pursuant to Section 4.01(a) above
and Sections 4.01(b)(i) through Section 4.01(b)(xxxviii) above.
(c) On each Distribution Date, the Trustee shall withdraw from the
Collection Account any amount received in respect of any Mortgage Loan or REO
Loan during the related Collection Period that represents Net Prepayment
Consideration and shall distribute such Net Prepayment Consideration as follows:
(i) if (A) such Net Prepayment Consideration was received in respect
of a Group 1 Mortgage Loan or successor REO Loan, (B) any Class of Class A
Certificates remained outstanding as of the commencement of business on
such Distribution Date, and (C) distributions are being made pursuant to
Section 4.01(a)(i), then 84% of such Net Prepayment Consideration shall be
distributed among the Holders of the respective Classes of Class A
Certificates, up to an amount equal to, and pro rata in accordance with,
the applicable Prepayment Consideration Entitlement for each such Class of
Certificates;
(ii) if (A) such Net Prepayment Consideration was received in
respect of a Group 1 Mortgage Loan or successor REO Loan, (B) any Class of
Class A Certificates remained outstanding as of the commencement of
business on such Distribution Date, and (C) distributions are being made
pursuant to Section 4.01(a)(ii), then 16% of such Net Prepayment
Consideration shall be distributed among the Holders of the respective
Classes of Class A Certificates, up to an amount equal to, and pro rata in
accordance with, the applicable Prepayment Consideration Entitlement for
each such Class of Certificates;
(iii) if (A) such Net Prepayment Consideration was received in
respect of a Group 2 Mortgage Loan or successor REO Loan, (B) any Class of
Class A Certificates remained outstanding as of the commencement of
business on such Distribution Date, and (C) distributions are being made
pursuant to Section 4.01(a)(ii), then 100% of such Net Prepayment
Consideration shall be distributed among the Holders of the respective
Classes of Class A Certificates, up to an amount equal to, and pro rata in
accordance with, the applicable Prepayment Consideration Entitlement for
each such Class of Certificates; and
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(iv) if (A) such Net Prepayment Consideration was received in
respect of any Mortgage Loan or successor REO Loan, (B) any Class of Class
A Certificates remained outstanding as of the commencement of business on
such Distribution Date, and (C) distributions are being made pursuant to
Section 4.01(a)(iii) or Section 9.01, then 100% of such Net Prepayment
Consideration shall be distributed among the Holders of the respective
Classes of Class A Certificates, up to an amount equal to, and pro rata in
accordance with, the applicable Prepayment Consideration Entitlement for
each such Class of Certificates.
Any Net Prepayment Consideration not otherwise distributed in
respect of the Class A Certificates pursuant to the foregoing provisions of this
Section 4.01(c) shall be distributed among the Holders of the respective Classes
of Principal Balance Certificates (other than the Class A Certificates), up to
an amount equal to, and pro rata in accordance with, the applicable Prepayment
Consideration Entitlement for each such Class of Certificates.
Any Net Prepayment Consideration not otherwise distributed in
respect of the Principal Balance Certificates pursuant to the foregoing
provisions of this Section 4.01(c) shall be distributed to the Holders of the
Class X Certificates. Any Net Prepayment Consideration distributed in respect of
the Class X Certificates on any Distribution Date shall be deemed to have been
distributed in respect of the respective Components of the Class X Certificates,
on a pro rata basis in accordance with the respective amounts by which the
Component Notional Amounts of such Components were reduced on such Distribution
Date by deemed distributions of principal pursuant to Section 4.01(j).
(d) On each Distribution Date, the Trustee shall withdraw from the
Collection Account any amounts that represent Additional Interest actually
collected on the ARD Loans and any successor REO Loans during the related
Collection Period and shall distribute such amounts among the Holders of the
Class A-1-b, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G and
Class H Certificates, on a pro rata basis in accordance with the respective
initial Class Principal Balances of such Classes of Certificates, without regard
to whether any such Class is entitled to distributions of principal on such
Distribution Date (whether by reason of its Class Principal Balance having been
reduced to zero or by reason of it not yet being entitled to distributions of
principal).
(e) All distributions made with respect to each Class of
Certificates 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 provided below, 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 five 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
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appears in the Certificate Register. The final distribution on each Certificate
(determined, in the case of a Principal Balance Certificate, without regard to
any possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to such Certificate, but taking into account
possible future distributions of Additional Interest) will be made in a 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. Prior to any
termination of the Trust Fund pursuant to Section 9.01, any distribution that is
to be made with respect to a Certificate in reimbursement of a Realized Loss or
Additional Trust Fund Expense previously allocated thereto, which reimbursement
is to occur after the date on which such Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Certificateholder that surrendered such Certificate as such
address last appeared in the Certificate Register or to any other address of
which the Trustee was subsequently notified in writing. If such check is
returned to the Trustee, then the Trustee, directly or through an agent, shall
take such reasonable steps to contact the related Holder and deliver such check
as it shall deem appropriate. Any funds in respect of a check returned to the
Trustee shall be set aside by the Trustee and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Trustee has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Trustee shall, subject to applicable law,
distribute the unclaimed funds to the Class R-III Certificateholders.
(f) 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 related 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 related Certificate Owners that it represents. None of
the Trustee, the Certificate Registrar, the Depositor or the Master Servicer
shall have any responsibility therefor except as otherwise provided by this
Agreement or applicable law. The Trustee and the Depositor shall perform their
respective obligations under a Letter of Representations among the Depositor,
the Trustee and the initial Depository dated as of the Closing Date.
(g) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates.
(h) Except as otherwise provided in Section 9.01, whenever the
Trustee receives written notification of or expects that the final distribution
with respect to any Class of Certificates (determined, in the case of a Class of
Principal Balance Certificates, without regard to any possible
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future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to such Class of Certificates, but taking into account
possible future distributions of Additional Interest) will be made on the next
Distribution Date, the Trustee shall, no later than the second Business Day
prior to such Distribution Date, mail to each Holder of record 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 office of the
Certificate Registrar or at 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(h) 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, then 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 former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for cancellation by the second anniversary of the delivery
of the second notice, the Trustee shall, subject to applicable law, distribute
to the Class R-III Certificateholders all unclaimed funds and other assets which
remain subject thereto.
(i) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Notwithstanding any other provision of this Agreement, any
Puerto Rican withholding tax imposed on interest payments received by any REMIC
Pool with respect to a Mortgage Loan secured by a Mortgaged Property located in
Puerto Rico as a result of a Certificateholder's ownership of more than 50% of
the related Mortgagor, shall be specially
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allocated to such Certificateholder and the amount of such tax shall be treated
as distributed to such Certificateholder.
(j) All distributions made in respect of each Class of Principal
Balance Certificates on each Distribution Date pursuant to Section 4.01(a),
Section 4.01(b), Section 4.01(c) or Section 9.01 shall be deemed to have first
been distributed from REMIC II to REMIC III in respect of the Corresponding
REMIC II Regular Interest for such Class of Certificates; and all distributions
made in respect of the Class X Certificates on each Distribution Date pursuant
to Section 4.01(a), Section 4.01(c) or Section 9.01, and allocable to any
particular Component of such Class of Certificates, shall be deemed to have
first been distributed from REMIC II to REMIC III in respect of the
Corresponding REMIC II Regular Interest for such Component. In each case, if
such distribution on any such Class of Certificates was a distribution of
interest, of principal, of additional interest (in the form of Net Prepayment
Consideration) or in reimbursement of any Realized Losses and Additional Trust
Fund Expenses previously allocated to such Class of Certificates, then the
corresponding distribution deemed to be made on a REMIC II Regular Interest
pursuant to the preceding sentence shall be deemed to also be a distribution of
interest, of principal, of additional interest (in the form of Net Prepayment
Consideration) or in reimbursement of any Realized Losses and Additional Trust
Fund Expenses, as the case may be, previously allocated to REMIC III in respect
of such REMIC II Regular Interest. The actual distributions made by the Trustee
on each Distribution Date in respect of the REMIC III Certificates pursuant to
Section 4.01(a), Section 4.01(b), Section 4.01(c) or Section 9.01, as
applicable, shall be deemed to have been so made from the amounts deemed
distributed in respect of the REMIC II Regular Interests on such Distribution
Date pursuant to this Section 4.01(j). Notwithstanding the deemed distributions
on the REMIC II Regular Interests described in this Section 4.01(j), actual
distributions of funds from the Collection Account shall be made only in
accordance with Section 4.01(a), Section 4.01(b), Section 4.01(c), Section
4.01(d) or Section 9.01, as applicable.
(k) On each Distribution Date, including, without limitation, the
Final Distribution Date, the Available Distribution Amount for such date shall
be deemed to have first been distributed from REMIC I to REMIC II in respect of
the REMIC I Regular Interests, in each case to the extent of the remaining
portions of such funds, for the following purposes and in the following order of
priority:
(i) as deemed distributions of interest in respect of all the REMIC
I Regular Interests, up to an amount equal to, and pro rata in accordance
with, all Uncertificated Distributable Interest in respect of each REMIC I
Regular Interest for such Distribution Date and, to the extent not
previously deemed distributed, for all prior Distribution Dates;
(ii) as deemed distributions of principal in respect of all the
REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, as to each REMIC I Regular Interest, the portion of the
Principal Distribution Amount for such Distribution Date attributable to
the related Mortgage Loan (or successor REO Loan); and
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(iii) as deemed distributions in respect of all the REMIC I Regular
Interests, up to an amount equal to, pro rata in accordance with, and in
reimbursement of, any Realized Losses and Additional Trust Fund Expenses
previously allocated to each REMIC I Regular Interest (with compounded
interest).
Any Net Prepayment Consideration distributed to any Class of Regular
Interest Certificates on any Distribution Date shall, in each case, be deemed to
have been distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interest corresponding to the prepaid Mortgage Loan or REO Loan, as the case may
be, in respect of which such premium or charge was received.
SECTION 4.02. Statements to Certificateholders; CSSA Loan File
Report.
(a) On each Distribution Date, the Trustee shall forward by first
class mail (or, in the case of each Rating Agency and any of the other Persons
entitled thereto who so request, by electronic medium) to the Depositor, the
Underwriter, the Master Servicer, the Special Servicer, the Controlling Class
Representative, each Rating Agency, the Holders of each Class of Regular
Interest Certificates and, upon their written request to the Trustee, any
Certificate Owners of the Book-Entry Certificates as may be identified to the
reasonable satisfaction of the Trustee, a statement (a "Distribution Date
Statement"), based on information provided to it by the Master Servicer and the
Special Servicer, setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reduction of
the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Interest Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Prepayment Premiums, Yield Maintenance Charges and Additional Interest,
respectively;
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reimbursement
of previously allocated Realized Losses and Additional Trust Fund
Expenses;
(v) the Available Distribution Amount, the Group 1 Distribution
Amount and Group 2 Distribution Amount for such Distribution Date;
(vi) the aggregate amount of P&I Advances made in respect of the
prior Distribution Date pursuant to Section 4.03(a), including, without
limitation, any amounts applied pursuant to Section 4.03(a)(ii);
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(vii) (A) the aggregate amount of unreimbursed P&I Advances that had
been outstanding at the close of business on the related Determination
Date and the aggregate amount of interest accrued and payable to the
Master Servicer, the Trustee or the Fiscal Agent in respect of such
unreimbursed P&I Advances in accordance with Section 4.03(d) as of the
close of business on the related Determination Date and (B) the aggregate
amount of unreimbursed Servicing Advances that had been outstanding as of
the close of business on the related Determination Date and the aggregate
amount of interest accrued and payable to the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent in respect of such unreimbursed
Servicing Advances in accordance with Section 3.03(d) as of the close of
business on the related Determination Date;
(viii) the aggregate unpaid principal balance of the Mortgage Pool
outstanding as of the close of business on the related Determination Date
and the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(ix) the number, aggregate unpaid principal balance, weighted
average remaining term to maturity and weighted average Mortgage Rate of
the Mortgage Loans (other than REO Loans) as of the close of business on
the related Determination Date;
(x) the number, aggregate unpaid principal balance (as of the close
of business on the related Determination Date) and aggregate Stated
Principal Balance (immediately after such Distribution Date) of Mortgage
Loans (A) delinquent one month, (B) delinquent two months, (C) delinquent
three or more months, and (D) as to which foreclosure proceedings have
been commenced;
(xi) as to each Mortgage Loan referred to in the preceding clause
(x) above, (A) the loan number thereof, (B) the Stated Principal Balance
thereof immediately following such Distribution Date, (C) whether the
delinquency is in respect of its Balloon Payment, (D) whether a notice of
acceleration has been sent to the related Mortgagor and, if so, the date
of such notice, (E) whether an Environmental Assessment of the related
Mortgaged Property has been performed as contemplated by Section 3.09(c)
and, if the assessment is such that the Special Servicer cannot make the
determination set forth in clauses (i) and (ii) of the first sentence of
Section 3.09(c), a brief description of the results of such Environmental
Assessment, and (F) a brief description of the status of any foreclosure
proceedings or any workout or loan modification negotiations with the
related Mortgagor;
(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (other than a payment
in full), (A) the loan number thereof, (B) the nature of the Liquidation
Event and, in the case of a Final Recovery Determination, a brief
description of the basis for such Final Recovery Determination, (C) the
aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the portion
thereof allocable to distributions on the
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Certificates), and (D) the amount of any Realized Loss in connection with
such Liquidation Event;
(xiii) with respect to any REO Property that was included in the
Trust Fund as of the close of business on the related Determination Date,
the loan number of the related Mortgage Loan, the book value of such REO
Property and the amount of REO Revenues and other amounts, if any,
received with respect to such REO Property during the related Collection
Period (separately identifying the portion thereof allocable to
distributions on the Certificates);
(xiv) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection
Period, the loan number of such Mortgage Loan and the Stated Principal
Balance of such Mortgage Loan as of the related Acquisition Date;
(xv) with respect to any REO Property included in the Trust Fund as
to which a Final Recovery Determination was made during the related
Collection Period, (A) the loan number of the related Mortgage Loan, (B) a
brief description of the basis for the Final Recovery Determination, (C)
the aggregate of all Liquidation Proceeds and other amounts received with
respect to such REO Property during the related Collection Period
(separately identifying the portion thereof allocable to distributions on
the Certificates), and (D) the amount of any Realized Loss in respect of
the related REO Loan in connection with such Final Recovery Determination;
(xvi) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of Regular Interest Certificates for
such Distribution Date;
(xvii) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Interest Certificates after giving effect to the
distributions made on such Distribution Date, and if the full amount of
the Principal Distribution Amount was not distributed on such Distribution
Date, the portion of the shortfall affecting each Class of Principal
Balance Certificates;
(xviii) the Pass-Through Rate for each Class of Regular Interest
Certificates for such Distribution Date;
(xix) the Principal Distribution Amount, the Loan Group 1 Principal
Amounts and the Loan Group 2 Principal Amounts for such Distribution Date,
in each case, separately identifying the respective components thereof
(and, in the case of any Principal Prepayment or other unscheduled
collection of principal received during the related Collection Period, the
loan number for the related Mortgage Loan and the amount of such
prepayment or other collection of principal);
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(xx) the aggregate of all Realized Losses incurred during the
related Collection Period and, aggregated by type, all Additional Trust
Fund Expenses incurred during the related Collection Period;
(xxi) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that remain unallocated immediately following such Distribution
Date;
(xxii) the Class Principal Balance of each Class of Principal
Balance Certificates and the Class Notional Amount of the Class X
Certificates, outstanding immediately before and immediately after such
Distribution Date, separately identifying any reduction therein due to the
allocation of Realized Losses and Additional Trust Fund Expenses on such
Distribution Date;
(xxiii) the Certificate Factor for each Class of Regular Interest
Certificates immediately following such Distribution Date;
(xxiv) the aggregate amount of interest on Advances paid to the
Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent
during the related Collection Period in accordance with Section 3.03(d)
and/or Section 4.03(d);
(xxv) (A) the loan number for each Required Appraisal Loan and any
related Appraisal Reduction Amount as of the related Determination Date
and (B) the aggregate Appraisal Reduction Amount for all Required
Appraisal Loans as of the related Determination Date;
(xxvi) on a cumulative basis from the Cut-off Date, the number,
aggregate Stated Principal Balance immediately after such Distribution
Date (in the case of subclauses (A), (B) and (E)), aggregate Cut-off Date
Balance (in the case of subclauses (C) and (D)), weighted average
extension period (except in the case of subclause (B) and which shall be
zero in the case of subclause (C)), and weighted average anticipated
extension period (in the case of subclause (B)) of Mortgage Loans (A) as
to which the maturity dates have been extended, (B) as to which the
maturity dates are in the process of being extended, (C) that have paid
off and were never extended, (D) as to which the maturity dates had
previously been extended and have paid off and (E) as to which the
maturity dates had been previously extended and are in the process of
being further extended;
(xxvii) the original and then current credit support levels for each
Class of Regular Interest Certificates;
(xxviii) the original and then current ratings for each Class of
Regular Interest Certificates;
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(xxix) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected (A) during the related Collection Period and
(B) since the Closing Date; and
(xxx) (A) the aggregate amount of servicing compensation (separately
identifying the amount of each category of compensation) paid to the
Master Servicer, the Special Servicer and, if payable directly out of the
Trust Fund without a reduction in the servicing compensation otherwise
payable to the Master Servicer or the Special Servicer, to each
Sub-Servicer, during the related Collection Period, and (B) such other
information as the Trustee is required by the Code or other applicable law
to furnish to enable Certificateholders to prepare their tax returns.
In the case of information to be furnished pursuant to clauses (i) through (iv)
above, the amounts shall be expressed as a dollar amount in the aggregate for
all Certificates of each applicable Class and per Single Certificate. In the
case of information provided to the Trustee as a basis for information to be
furnished pursuant to clauses (vi) through (xv), (xix), (xx), (xxiv), (xxv),
(xxvi), (xxix) and (xxx) above, insofar as the underlying information is solely
within the control of the Special Servicer or the Master Servicer, the Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer or the Master Servicer.
On each Distribution Date, the Trustee shall forward by first class
mail (or, in the case of each Rating Agency and any of the other Persons
entitled thereto who so request, by electronic medium) to each
Certificateholder, the Underwriter, the Depositor, each Rating Agency and each
other Person that was forwarded a Distribution Date Statement on such
Distribution Date, a copy of the following reports delivered to it by the Master
Servicer pursuant to Section 3.12(c) since the preceding Distribution Date (or,
in the case of the initial Distribution Date, since the Closing Date): (i) the
Delinquent Loan Status Report; (ii) the Historical Loss Estimate Report; (iii)
the Historical Loan Modification Report; (iv) the REO Status Report; (v) the
Watch List Report; (vi) a Loan Payoff Notification Report; and (vii) the
Comparative Financial Status Report. Upon request, the Trustee shall prepare and
deliver or shall cause to be delivered on each Distribution Date by first class
mail (or, in the case of each Rating Agency and any of the other Persons
entitled thereto who so request, by electronic medium) to each
Certificateholder, the Underwriter, the Depositor, each Rating Agency and each
other Person that was forwarded a Distribution Date Statement on such
Distribution Date a copy of the CSSA Loan File Report containing information
regarding each Mortgage Loan and the CSSA Property File Report containing
information regarding each Mortgaged Property and REO Property as of the end of
the preceding calendar month. The Distribution Date Statement, the CSSA Loan
File Report, the CSSA Property File Report and the reports referred to in the
second preceding sentence collectively constitute the "Certificateholder
Reports". Absent manifest error, none of the Master Servicer, the Special
Servicer or the Trustee shall be responsible for the accuracy or completeness of
any information supplied to it by a Mortgagor or third party that is included in
any reports, statements, materials or information prepared or provided by the
Master Servicer, the Special Servicer or the Trustee, as applicable. None of the
Trustee, the Master Servicer or the Special
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Servicer shall have any obligation to verify the accuracy or completeness of any
information provided by a Mortgagor, a third party or each other.
A Certificateholder or Certificate Owner may obtain certain
information contained in each Distribution Date Statement by calling the
Trustee's ASAP System at (312) 904-2200 and requesting statement number 371, or
such other mechanism as the Trustee may have in place from time to time. With
the consent of the Depositor, the Trustee may make certain information
concerning the Mortgage Loans and the Certificates available to
Certificateholders and Certificate Owners through the Trustee's website at
www.lnbabs.com on the internet. Account numbers on the Trustee's ASAP System and
passwords for the Trustee's website may be obtained by calling (312) 904-2200
and following the voice prompts for obtaining account numbers. Certificate
Factor information may be obtained by potential purchasers of the Certificates
or interests therein, by calling (800) 246-5761. Additionally, the Trustee shall
make available to the Master Servicer, the Special Servicer, the
Certificateholders, Certificate Owners identified to the Trustee in writing, the
Depositor, the Underwriter, each Rating Agency, and Bloomberg, L.P. (and may in
its discretion and upon receipt of written consent of the Underwriter or the
Depositor publish on the internet) by means of electronic access to a datafile
in the "CSSA Loan periodic update file" and the "CSSA Property File" with the
Delinquent Loan Status Report, Historical Loan Modification Report, Historical
Loss Estimate Report, REO Status Report, Loan Payoff Notification Report and the
Watch List Report attached (provided such reports have been delivered to the
Trustee pursuant to Section 3.12(c) in an electronic format acceptable to the
Trustee) via the Trustee's bulletin board (accessible by dialing (714)
282-3990). The Trustee may disclaim responsibility for any information therein
for which it is not the original source. With the consent of the Depositor, the
Master Servicer may, but is not required to, make available each month, the
Distribution Date Statement, the Unrestricted Servicer Reports, the CSSA Loan
File Report and the CSSA loan setup file on its internet websites. With the
consent of the Depositor, the Master Servicer may, but is not required to, make
available each month, the Restricted Servicer Reports, the CSSA Property File
Report and the Prospectus and Prospectus Supplement to the other parties hereto,
the Underwriter, the Rating Agencies and any Certificateholder or Certificate
Owner via the Master Servicer's internet website with the use of a password
provided by the Master Servicer to such Person; provided that, in the case of a
Certificateholder or Certificate Owner, the Master Servicer has received from
such Person a certification reasonably acceptable to the Master Servicer
confirming such Person's Ownership Interest in the Certificates. In connection
with providing access to the Master Servicer's internet website, the Master
Servicer may require registration and the acceptance of a disclaimer.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual basis
(if appropriate) the items provided to Certificateholders pursuant to clauses
(i), (ii), (iii) and (iv) of the description of "Distribution Date Statement"
above and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. Such
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requirement shall be deemed to be satisfied to the extent such information is
provided pursuant to applicable requirements of the Code from time to time in
force.
On each Distribution Date, the Trustee shall forward to the
Depositor, to each Rating Agency, to each Holder of a Residual Interest
Certificate, to the Underwriter (at Three World Financial Center, New York, New
York 10285, Attention: Trish Hall, or such other address as the Underwriter may
designate) and, in the case of reports regarding the respective Classes of
Book-Entry Certificates, if any, to The Trepp Group (at 477 Madison Avenue, 18th
Floor, New York, New York 10022, or such other address as The Trepp Group may
hereafter designate), a copy of the reports forwarded to the Holders of the
Regular Interest Certificates on such Distribution Date and a statement setting
forth the amounts, if any, actually distributed with respect to the Class R-I,
Class R-II and Class R-III Certificates on such Distribution Date.
Upon written request of the Depositor or the Underwriter, without
payment of any fee, and upon written request of any Certificateholders or any
other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this Section 4.02(a) on computer diskette to such party (such
computer diskette and such statements, reports, and/or information thereon to
bear such appropriate disclaimers and qualifications as the Depositor and the
Trustee shall determine in their reasonable discretion).
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Trustee shall forward such statements, reports and/or
other written information to such Certificate Owner as provided above, upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; provided that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives the necessary underlying information from the Master Servicer and shall
not be liable for any failure to deliver any thereof on the prescribed due
dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Master Servicer or
the Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Mortgagor and the failure of the Trustee, Master
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
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The information to be furnished by the Trustee to the
Certificateholders pursuant to Sections 4.02(a) and (b) shall not limit the
Trustee in furnishing any such information to other Persons to whom it
determines such disclosure to be appropriate and shall not limit the Trustee in
furnishing to Certificateholders or to any person any other information with
respect to the Mortgage Loans, the Mortgaged Properties or the Trust Fund as may
be provided to it by the Depositor, the Master Servicer or the Special Servicer
or gathered by it in any investigation or other manner from time to time (such
information, other than as described in Sections 4.02(a) and (b), is referred to
herein as "Additional Information") as it may reasonably deem necessary or
appropriate from time to time, provided that (A) the Trustee shall give the
Depositor three Business Days' advance notice before doing so, (B) any such
Additional Information shall only be furnished with the consent or at the
request of the Depositor (except pursuant to clause (E) below), (C) the Trustee
shall be entitled to indicate the source of all information furnished by it, and
the Trustee may affix thereto any disclaimer it deems appropriate in its
discretion, (D) the Trustee shall notify Certificateholders of the availability
of any such information in any manner as it, in its sole discretion, may
determine and (E) this provision shall not prevent the Trustee, whether with or
without the consent of the Depositor, from furnishing information with respect
to the Trust Fund and its administration thereof to any Person, if it reasonably
determines that the furnishing of such information is required by applicable
law. The Trustee shall forward to the Depositor any requests for Additional
Information which, for their fulfillment, require the consent of the Depositor.
Nothing herein shall be construed to impose upon the Trustee any obligation or
duty to furnish or distribute any Additional Information to any Person in any
instance.
(b) Not later than 2:00 p.m. (New York City time) on the third
Business Day following each Determination Date, the Master Servicer shall
furnish to the Trustee, the Depositor, the Underwriter and the Special Servicer,
by electronic transmission (or in such other form to which the Trustee or the
Depositor, as the case may be, and the Master Servicer may agree), with a hard
copy of such transmitted information to follow promptly, an accurate and
complete CSSA Loan File Report providing the required information for the
Mortgage Loans as of such Determination Date.
In the performance of its obligations set forth in Section 4.05 and
its other duties hereunder, the Trustee may conclusively rely on the CSSA Loan
File Report provided to it by the Master Servicer, and the Trustee shall not be
responsible to recompute, recalculate or verify the information provided to it
by the Master Servicer. In the case of information to be furnished by the Master
Servicer to the Trustee pursuant to this Section 4.02(b), insofar as such
information is solely within the control of the Special Servicer, the Master
Servicer (if other than the Special Servicer or an Affiliate thereof) shall have
no obligation to provide such information until it has received such information
from the Special Servicer, shall not be in default hereunder due to a delay in
providing the CSSA Loan File Report caused by the Special Servicer's failure to
timely provide any report required under this Agreement and may, absent actual
knowledge of an error therein, conclusively rely on the reports to be provided
by the Special Servicer. The Master Servicer may conclusively rely on any
information provided by the Depositor or any Mortgagor with respect to the CSSA
Loan File Report.
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SECTION 4.03. P&I Advances.
(a) On or before 3:00 p.m., New York City time, on each P&I Advance
Date, the Master Servicer shall, subject to Section 4.03(c) below, satisfy its
obligations to make P&I Advances with respect to the related Distribution Date,
first, by transferring to the Trustee for deposit in the Collection Account
amounts then held in the Custodial Account for future distribution to
Certificateholders in subsequent months in discharge of such obligations, and
second, by remitting its own funds to the Trustee for deposit in a Collection
Account in an amount equal to the remaining portion of such required P&I
Advances. Any amounts held in the Custodial Account for future distribution and
so used to make P&I Advances shall be appropriately reflected in the Master
Servicer's records and replaced by the Master Servicer by deposit in the
Custodial Account on or before the next succeeding Determination Date (to the
extent not previously replaced through the deposit of Late Collections of the
delinquent principal and interest in respect of which such P&I Advances were
made). If, as of 4:00 p.m., New York City time, on any P&I Advance Date, the
Master Servicer shall not have made any P&I Advance required to be made on such
date pursuant to this Section 4.03(a) (and shall not have delivered to the
Trustee the requisite Officer's Certificate and documentation related to a
determination of nonrecoverability of a P&I Advance), then the Trustee shall
provide notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. (704) 383-9356 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone at telephone no. (704) 383-0535 (or such alternative number provided
by the Master Servicer to the Trustee in writing) as soon as possible, but in
any event before 5:00 p.m., New York City time, on such P&I Advance Date. If
after such notice by facsimile, the Trustee does not receive the full amount of
such P&I Advances by 10:00 a.m., New York City time, on the related Distribution
Date, then (i) the Trustee (or the Fiscal Agent on its behalf) shall make the
portion of such P&I Advances that was required to be, but was not, made by the
Master Servicer on such P&I Advance Date and (ii) the provisions of Sections
7.01 and 7.02 shall apply. If the Trustee fails to make any such P&I Advance on
the related Distribution Date, but the Fiscal Agent shall make such P&I Advance
on such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, in respect of any
Distribution Date shall, subject to Section 4.03(c) below, equal the aggregate
of all Monthly Payments (other than Balloon Payments) and any Assumed Monthly
Payments, in each case net of related Master Servicing Fees and any related
Workout Fees, due or deemed due, as the case may be, in respect of the Mortgage
Loans (including, without limitation, Balloon Mortgage Loans delinquent as to
their respective Balloon Payments) and any REO Loans on their respective Due
Dates during the related Collection Period, in each case to the extent such
amount was not paid by or on behalf of the related Mortgagor or otherwise
collected (including received as net income from REO Properties) as of the close
of business on the related Determination Date; provided that, if it is
determined that an Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, then, in the event of subsequent delinquencies thereon,
the interest portion of each P&I Advance, if any, required to be made in respect
of such Required Appraisal Loan during the period that such Appraisal Reduction
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Amount continues to exist, shall be reduced (it being herein agreed and
acknowledged that there shall be no reduction in the principal portion of any
such P&I Advance) to equal the product of (x) the amount of the interest portion
of the subject P&I Advance that would otherwise be required without regard to
this proviso, multiplied by (y) a fraction, the numerator of which is equal to
the Stated Principal Balance of such Mortgage Loan, net of such Appraisal
Reduction Amount, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan; and provided, further, that the Holders of
Certificates representing a majority of the Voting Rights allocated to the most
subordinate Class of Principal Balance Certificates (other than the Class A,
Class B, Class C, Class D or Class E Certificates) will be entitled, to the
extent that it does not adversely affect the distributions with respect to any
more senior Class of Certificates, to elect (by written notice to the Master
Servicer and the Trustee three (3) Business Days prior to the related P&I
Advance Date) not to receive the benefits of P&I Advances on any particular
Distribution Date, in which case each P&I Advance that would otherwise be made
on the related P&I Advance Date will be reduced by that portion thereof
(calculated as described in the next paragraph) that would otherwise be
distributable on such Class of Certificates on such Distribution Date. If the
Holders of Certificates representing a majority of the Voting Rights allocated
to the most subordinate Class of Principal Balance Certificates (other than the
Class A, Class B, Class C, Class D or Class E Certificates) elect with respect
to any Distribution Date to forego the benefits of P&I Advances in accordance
with the second proviso to the preceding sentence, then (i) the interest portion
of each P&I Advance shall be reduced by an amount equal to the product of (A)
the amount of the interest portion of such P&I Advance that would otherwise be
required without regard to such election or any related Appraisal Reduction
Amount, multiplied by (B) a fraction, the numerator of which is equal to the
Class Principal Balance of such Class of Principal Balance Certificates
outstanding immediately prior to such Distribution Date, and the denominator of
which is the aggregate Class Principal Balance of all the Classes of Principal
Balance Certificates outstanding immediately prior to such Distribution Date,
and (ii) the principal portion of each P&I Advance shall be reduced by an amount
equal to the product of (X) the amount of the principal portion of such P&I
Advance that would otherwise be required without regard to such election or any
related Appraisal Reduction Amount, multiplied by (Y) a fraction, the numerator
of which is equal to the portion of the Principal Distribution Amount allocable
to such Class of Principal Balance Certificates on such Distribution Date, and
the denominator of which is equal to the entire Principal Distribution Amount
for such Distribution Date; provided that such reductions in the P&I Advances
with respect to such Distribution Date may not result in the Available
Distribution Amount for such Distribution Date being less than the total of all
payments distributable in respect of all more senior Classes of Certificates on
such date pursuant to Sections 4.01(a) and 4.01(b); and provided, further, that
no such reduction in the interest portion of a P&I Advance shall be in addition
to the reduction therein caused by an Appraisal Reduction Amount for the related
Mortgage Loan, but rather the applicable reduction to such interest portion
shall equal the greater of the reduction resulting from such election and the
reduction resulting from such Appraisal Reduction Amount. The Trustee shall,
upon request and with the reasonable cooperation of the Master Servicer,
calculate the amount of P&I Advances to be made on any Distribution Date.
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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. The determination by the Master
Servicer 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 Officers' Certificate delivered to the Trustee, the Fiscal Agent
and the Depositor on or before the related P&I Advance Date, setting forth the
basis for such determination, together with any other information that supports
such determination, including an appraisal (which appraisal shall have been
conducted within the 12-month period preceding such determination in accordance
with the standards of the Appraisal Institute taking into account the factors
specified in Section 3.18(e)), related Mortgagor operating statements and
financial statements, budgets and rent rolls of the related Mortgaged Properties
(to the extent available and/or in the Master Servicer's or the Special
Servicer's possession), engineers' reports, environmental surveys and any
similar reports that the Master Servicer may have obtained consistent with the
Servicing Standard and at the expense of the Trust Fund, that support such
determination by the Master Servicer. The Trustee and the Fiscal Agent shall be
entitled to rely, conclusively, on any determination by the Master Servicer that
a P&I Advance, if made, would be a Nonrecoverable Advance; provided, however,
that if the Master Servicer has failed to make a P&I Advance for reasons other
than a determination by the Master Servicer that such P&I Advance would be
Nonrecoverable Advance, the Trustee or Fiscal Agent, as applicable, shall make
such Advance within the time periods required by Section 4.03(a) unless the
Trustee or the Fiscal Agent, in good faith, makes a determination prior to the
times specified in Section 4.03(a) that such P&I Advance would be a
Nonrecoverable Advance. The Trustee and the Fiscal Agent, in determining whether
or not a P&I Advance previously made is, or a proposed P&I Advance, if made,
would be, a Nonrecoverable Advance shall be subject to the standards applicable
to the Master Servicer hereunder.
(d) Subject to the next sentence, the Master Servicer, the Trustee
and the Fiscal Agent shall each be entitled to receive interest at the
Reimbursement Rate in effect from time to time, compounded annually, accrued on
the amount of each P&I Advance made thereby (with its own funds) for so long as
such P&I Advance is outstanding, such interest to be payable: (i) out of late
payment charges and Default Interest collected (A) on the particular Mortgage
Loan or REO Loan as to which such P&I Advance relates and (B) during the same
Collection Period in which such P&I Advance is reimbursed; and (ii) to the
extent that such late payment charges and Default Interest are insufficient, but
only after the related Advance has been reimbursed pursuant to this Agreement,
out of general collections on the Mortgage Loans and REO Properties on deposit
in the Custodial Account. The Master Servicer shall, in accordance with Section
3.05(a), reimburse itself, the Trustee or the Fiscal Agent, as applicable, for
any outstanding P&I Advance made thereby as soon as practicable after funds
available for such purpose are deposited in the Custodial Account, and in no
event shall interest accrue in accordance with this Section 4.03(d) on any P&I
Advance as to which the corresponding Late Collection was received as of the
related P&I Advance Date.
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SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the Trustee
shall determine the amount, if any, by which (i) the then aggregate of the Class
Principal Balances of all the Classes of Principal Balance Certificates, exceeds
(ii) the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class N, Class M, Class L, Class
K, Class J, Class H, Class G, Class F, Class E, Class D, Class C and Class B
Certificates shall be reduced sequentially, in that order, in each case, until
such excess or the related Class Principal Balance is reduced to zero (whichever
occurs first). If, after the foregoing reductions, the amount described in
clause (i) of the second preceding sentence still exceeds the amount described
in clause (ii) of such sentence, then the respective Class Principal Balances of
the Class A-1-a Certificates, the Class A-1-b Certificates and the Class A-2
Certificates shall be reduced on a pro rata basis in accordance with the
relative sizes of such Class Principal Balances, until any such remaining excess
is reduced to zero. All such reductions in the Class Principal Balances of the
respective Classes of the Principal Balance Certificates shall constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(j), the Trustee shall determine the amount, if any, by which (i)
the then aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests, exceeds (ii) the aggregate Stated Principal Balance of the Mortgage
Pool that will be outstanding immediately following such Distribution Date. If
such excess does exist, then the Uncertificated Principal Balances of REMIC II
Regular Interest N, REMIC II Regular Interest M, REMIC II Regular Interest L,
REMIC II Regular Interest K, REMIC II Regular Interest J, REMIC II Regular
Interest H, REMIC II Regular Interest G, REMIC II Regular Interest F, REMIC II
Regular Interest E, REMIC II Regular Interest D, REMIC II Regular Interest C and
REMIC II Regular Interest B shall be reduced sequentially, in that order, in
each case, until such excess or the related Uncertificated Principal Balance is
reduced to zero (whichever occurs first). If, after the foregoing reductions,
the amount described in clause (i) of the second preceding sentence still
exceeds the amount described in clause (ii) of such sentence, then the
respective Uncertificated Principal Balances of REMIC II Regular Interest A-1-a,
REMIC II Regular Interest A-1-b and REMIC II Regular Interest A-2 shall be
reduced on a pro rata basis in accordance with the relative sizes of such
Uncertificated Principal Balances, until any such remaining excess is reduced to
zero. All such reductions in the Uncertificated Principal Balances of the
respective REMIC II Regular Interests shall be deemed to constitute allocations
of Realized Losses and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section 4.01(k),
the Uncertified Principal Balance of each REMIC I Regular Interest (after taking
account of such deemed distributions) shall be reduced to equal the Stated
Principal Balance of the related Mortgage Loan or REO Loan, as the
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case may be, that will be outstanding immediately following such Distribution
Date. Such reductions shall be deemed to be an allocation of Realized Losses and
Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
The Trustee shall, provided it receives the necessary information
from the Master Servicer and the Special Servicer, be responsible for performing
all calculations necessary in connection with the actual and deemed
distributions and allocations to be made pursuant to Section 4.01 and Article IX
and the actual and deemed allocations of Realized Losses and Additional Trust
Fund Expenses to be made pursuant to Section 4.04. The Trustee shall calculate
the Available Distribution Amount for each Distribution Date and shall allocate
such amount among Certificateholders in accordance with this Agreement, and the
Trustee shall have no obligation to recompute, recalculate or verify any
information provided to it by the Special Servicer or Master Servicer. The
calculations by the Trustee of such amounts shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
SECTION 4.06. Use of Agents.
The Master Servicer or the Trustee may at its own expense utilize
agents or attorneys-in-fact in performing any of its obligations under this
Article IV (except the obligation to make P&I Advances), but no such utilization
shall relieve the Master Servicer or the Trustee from any of such obligations,
and the Master Servicer or the Trustee, as applicable, shall remain responsible
for all acts and omissions of any such agent or attorney-in-fact.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1, A-2, A-3, A-4 and A-5; provided that 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. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03, beneficial ownership interests in the Registered Certificates and
the Class F and Class G Certificates shall initially be held and transferred
through the book-entry facilities of the Depository. The Regular Interest
Certificates will be issuable only in denominations corresponding to initial
Certificate Principal Balances or initial Certificate Notional Amounts, as the
case may be, as of the Closing Date of not less than $10,000 in the case of the
Registered Certificates (other than the Class X Certificates), $250,000 in the
case of the Class X Certificates, and $250,000 in the case of the Non-Registered
Certificates (other than the Residual Interest Certificates), and in each such
case in integral multiples of $1 in excess thereof. The Class R-I Certificates,
the Class R-II Certificates and the Class R-III Certificates will be issuable in
denominations representing Percentage Interests in the related Class of not less
than 10%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. 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.
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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.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as 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 Master Servicer, the Special Servicer and (if
the Trustee is not the Certificate Registrar) the Trustee, any other bank or
trust company to act as Certificate Registrar under such conditions as the
predecessor Certificate Registrar may prescribe, provided that the predecessor
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment. If the Trustee resigns
or is removed in accordance with the terms hereof, the successor trustee shall
immediately succeed to its duties as Certificate Registrar. The Depositor, the
Trustee (if it is no longer the Certificate Registrar), the Master 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.
If three or more Holders make written request to the Trustee, and
such request states that such Holders desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Holders propose to
transmit, then the Trustee shall, 30 days after the receipt of such request,
afford (or cause any other Certificate Registrar to afford) the requesting
Holders access during normal business hours to the most recent list of
Certificateholders held by the Certificate Registrar.
(b) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Definitive Non-Registered
Certificate is to be made without registration under the Securities Act (other
than in connection with the initial issuance of the Non-Registered Certificates
or a transfer of such Certificate by the Depositor, the Underwriter or any of
their respective Affiliates or, in the case of a Book-Entry Non-Registered
Certificate, a transfer thereof to a successor Depository or to the applicable
Certificate Owner in accordance with Section 5.03), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and, upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached hereto as Exhibit F-1 and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached hereto either as
Exhibit F-2A or as Exhibit F-2B; or (ii) an Opinion of Counsel satisfactory to
the Trustee to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special
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Servicer, the REMIC Administrator, the Trustee, the Fiscal Agent or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of a Definitive Non-Registered Certificate does not, in
connection with the subject transfer, deliver to the Certificate Registrar one
of the certifications described in clause (i) of the preceding sentence or the
Opinion of Counsel described in clause (ii) of the preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in either Exhibit F-2A or Exhibit F-2B hereto are, with
respect to the subject transfer, true and correct. If a transfer of any interest
in a Book-Entry Non-Registered Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Book-Entry Non-Registered Certificates or a transfer of any interest therein
by the Depositor, the Underwriter or any of their respective Affiliates), then
the Certificate Owner desiring to effect such transfer shall be required to
obtain either (i) a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached hereto as Exhibit F-2C or as
Exhibit F-2D, or (ii) an Opinion of Counsel to the effect that such transfer may
be made without registration under the Securities Act. If any Transferee of an
interest in a Book-Entry Non-Registered Certificate does not, in connection with
the subject transfer, deliver to the Transferor the Opinion of Counsel or one of
the certifications described in the preceding sentence, then such Transferee
shall be deemed to have represented and warranted that all the certifications
set forth in either Exhibit F-2C or Exhibit F-2D hereto are, with respect to the
subject transfer, true and correct. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
transfer of any Non-Registered Certificate or interest therein without
registration or qualification. Any Certificateholder or Certificate Owner
desiring to effect a transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall, and does hereby agree to,
indemnify the Depositor, the Underwriter, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the REMIC Administrator and the
Certificate Registrar against any liability that may result if such transfer,
sale, pledge or other disposition is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
(c) No transfer of a Non-Registered Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of such Certificate or interest therein by the
prospective Transferee would result in a violation of Section 406 of ERISA or
Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. Except in connection with the initial issuance
of the Non-Registered Certificates or any transfer of a Non-Registered
Certificate or any interest therein by the Depositor, the Underwriter or any of
their
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respective Affiliates or, in the case of a Book-Entry Non-Registered
Certificate, any transfer of such Certificate to a successor Depository or to
the applicable Certificate Owner in accordance with Section 5.03, the
Certificate Registrar shall refuse to register the transfer of a Definitive
NonRegistered Certificate unless it has received from the prospective
Transferee, and any Certificate Owner transferring an interest in a Book-Entry
Non-Registered Certificate shall be required to obtain from its prospective
Transferee, either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) a certification to the effect that the
purchase and holding of such Certificate or interest therein by such prospective
Transferee is exempt from the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Trustee or such Certificate Owner, as the case may be, that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the
Code. It is hereby acknowledged that the forms of certification attached hereto
as Exhibit G-1 (in the case of Definitive Non-Registered Certificates) and
Exhibit G-2 (in the case of ownership interests in Book-Entry Non-Registered
Certificates) are acceptable for purposes of the preceding sentence. If any
Transferee of a Subordinate Certificate (including, without limitation, a Class
B, Class C, Class D or Class E Certificate) or any interest therein does not, in
connection with the subject transfer, deliver to the Certificate Registrar (in
the case of a Definitive Subordinate Certificate) or the Transferor (in the case
of ownership interests in a Book-Entry Subordinate Certificate) any
certification and/or Opinion of Counsel contemplated by the second preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that either: (i) such Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) the purchase and holding of
such Certificate or interest therein by such Transferee is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Sections I and III of Prohibited Transaction Class Exemption
95-60.
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Interest 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 Trustee under
clause (ii) (A) below to deliver payments to a Person other than such
Person and to have irrevocably authorized the Trustee under clause (ii)
(B) below to negotiate the terms of any mandatory disposition and to
execute all instruments of Transfer and to do all other things necessary
in connection with any such disposition. The rights of each Person
acquiring any Ownership Interest in a Residual Interest Certificate are
expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall be a Permitted Transferee and
shall promptly notify the REMIC Administrator and the Trustee of any
change or impending change in its status as a Permitted Transferee.
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(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Interest Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the
Transfer of any Residual Interest Certificate until its receipt, of
an affidavit and agreement substantially in the form attached hereto
as Exhibit H-1 (a "Transfer Affidavit and Agreement"), from the
proposed Transferee, representing and warranting, among other
things, that such Transferee is a Permitted Transferee, that it is
not acquiring its Ownership Interest in the Residual Interest
Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in
a Residual Interest Certificate it will endeavor to remain a
Permitted Transferee, 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 and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of either the Trustee or the Certificate
Registrar has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in a
Residual Interest Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to transfer its Ownership Interest in such
Residual Interest Certificate and (2) not to transfer its Ownership
Interest in such Residual Interest Certificate unless it provides to
the Certificate Registrar a certificate substantially in the form
attached hereto as Exhibit H-2 stating that, among other things, it
has no actual knowledge that such prospective Transferee is not a
Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Interest Certificate, by purchasing such Ownership
Interest, agrees to give the REMIC Administrator and the Trustee
written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulation Section 1.67-
3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a
Residual Interest Certificate, if it is, or is holding an Ownership
Interest in a Residual Interest Certificate on behalf of, a
"pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual
Interest 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 Interest Certificate.
None of the Depositor, the Trustee or the Certificate Registrar
shall be under any liability to any Person for any registration of
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Transfer of a Residual Interest 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.
(B) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the restrictions in
this Section 5.02(d), then, to the extent that retroactive
restoration of the rights of the preceding Holder of such Residual
Interest Certificate as described in clause (ii) (A) above shall be
invalid, illegal or unenforceable, the Trustee shall have the right
but not the obligation, to cause the transfer of such Residual
Interest Certificate to a Permitted Transferee selected by the
Trustee on such terms as the Trustee may choose, and the Trustee
shall not be liable to any Person having an Ownership Interest in
such Residual Interest Certificate as a result of the Trustee's
exercise of such discretion. Such purported Transferee shall
promptly endorse and deliver such Residual Interest Certificate in
accordance with the instructions of the Trustee. Such Permitted
Transferee may be the Trustee itself or any Affiliate of the
Trustee.
(iii) The REMIC Administrator shall make available to the Internal
Revenue Service and to those Persons specified by the REMIC Provisions all
information furnished to it by the other parties hereto necessary to
compute any tax imposed (A) as a result of the Transfer of an Ownership
Interest in a Residual Interest Certificate to any Person who is a
Disqualified Organization, 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 Interest Certificate and (B) as a
result of any regulated investment company, real estate investment trust,
common trust fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a Residual
Interest Certificate having as among its record holders at any time any
Person which is a Disqualified Organization, and each of the other parties
hereto shall furnish to the REMIC Administrator all information in its
possession necessary for the REMIC Administrator to discharge such
obligation. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the REMIC Administrator for
providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee and the REMIC Administrator the
following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade
or withdraw its then-current rating with respect to any Class of
Certificates; and
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(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee and the REMIC Administrator, obtained at the expense
of the party seeking such modification of, addition to or
elimination of such provisions (but in no event at the expense of
the Trustee, the REMIC Administrator or the Trust), to the effect
that doing so will not (1) cause any of REMIC I, REMIC II or REMIC
III to cease to qualify as a REMIC or be subject to an entity-level
tax caused by the Transfer of any Residual Interest Certificate to a
Person which is not a Permitted Transferee or (2) cause a Person
other than the prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a Residual Interest
Certificate to a Person that is not a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate,
Subordinate Certificate or Residual Interest Certificate or an interest in any
such Certificate as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Certificate, to the Certificate Owner that is
transferring such interest) a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee (or such Certificate
Owner) to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in Subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(g) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest upon surrender of the Certificates to be exchanged
at the offices of the Certificate Registrar maintained for such purpose.
Whenever any Certificates are so surrendered for exchange, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or Certificate Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
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(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Registered Certificates and the Class F and Class
G Certificates shall initially be issued as one or more Certificates registered
in the name of the Depository or its nominee and, except as provided in Section
5.03(c) below, a 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
5.03(c) below, shall not be entitled to definitive, fully registered
Certificates ("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 each
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 Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The 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 and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, or (iii) after the occurrence of an Event of Default, Certificate
Owners entitled to a majority of the Voting Rights allocated to the Book-Entry
Certificates advise the Depository through the Depository Participants in
writing that the continuation of a book-entry system through the Depository is
no longer in the best interests of the Certificate Owners, the Certificate
Registrar shall notify all affected Certificate Owners, through the Depository,
of the
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occurrence of any such event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates of any Class thereof by 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, the Definitive Certificates
in respect of such Class to the Certificate Owners identified in such
instructions. The Depositor shall provide the Certificate Registrar with an
adequate inventory of Definitive Certificates. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or 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 Registered 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) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the transfer of ownership interests in any
Certificate (including but not limited to any Non-Registered Certificate or any
Subordinate Certificate) which interests are transferable through the book-entry
facilities of the Depository.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably 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 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 applicable REMIC created hereunder, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
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SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master 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 Master Servicer
and the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of Depositor,
Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a legal entity 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.
Each of the Depositor, the Master Servicer or the Special Servicer
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which, in the case of the Master Servicer or
the Special Servicer, may be limited to all or substantially all of its assets
related to commercial mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business (which, in the case of the Master Servicer or the
Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as confirmed in writing by each of the Rating Agencies, such
succession will not result in the qualification, downgrade or withdrawal of any
rating or ratings then assigned to any Class of Certificates, and (ii) such
successor or surviving Person makes the applicable representations and
warranties set forth in Section 3.23 (in the case of a successor or surviving
Person to the Master Servicer) or Section 3.24 (in the case of a successor or
surviving Person to the Special Servicer), as applicable.
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SECTION 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee or the
Certificateholders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or the Special
Servicer against any liability to the Trust Fund, the Trustee or the
Certificateholders for the breach of a representation, warranty or covenant made
herein by such party, or against any expense or liability specifically required
to be borne by such party without right of reimbursement pursuant to the terms
hereof, or against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of obligations
or duties hereunder. The Depositor, the Master Servicer, the Special Servicer
and any director, officer, employee or agent of the Depositor, the Master
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 Master Servicer,
the Special Servicer and any director, officer, employee or agent of the
Depositor, the Master Servicer or the Special Servicer shall be indemnified and
held harmless by the Trust Fund against any "out-of-pocket" loss, liability or
reasonable expense incurred in connection with this Agreement or the
Certificates, other than any such loss, liability or expense: (i) which
constitutes a Servicing Advance that is otherwise reimbursable hereunder; (ii)
that, under generally accepted servicing practices in the commercial real estate
loan servicing industry, constitutes a normal and customary servicing expense
(including expenses of the Master Servicer, the Special Servicer and the Rating
Agencies associated with assumptions) with respect to non-defaulted Mortgage
Loans or that is normally borne by servicers in the commercial real estate loan
servicing industry without reimbursement; (iii) which constitutes allocable
overhead, such as costs for office space, office equipment, supplies and related
expenses, employee salaries and related expenses and similar internal costs and
expenses; (iv) specifically required to be borne by such party without right of
reimbursement pursuant to the terms hereof; (v) incurred in connection with any
breach on the part of the party seeking indemnification of a representation,
warranty or covenant made herein; or (vi) incurred by reason of willful
misfeasance, bad faith or negligence on the part of the party seeking
indemnification in the performance of obligations or duties hereunder. None of
the Depositor, the Master Servicer or the Special Servicer shall be under any
obligation to appear in, prosecute or defend any legal action, unless such
action is related to its respective duties under this Agreement and either (i)
it is specifically required hereunder to bear the costs of such action or (ii)
such action will not, in its reasonable and good faith judgment, involve it in
any ultimate expense or liability for which it would not be reimbursed
hereunder; provided, however, that the Depositor, the Master Servicer or the
Special Servicer may in its discretion undertake any such action which it may
deem necessary or desirable with respect to the enforcement and/or protection of
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, and any liability resulting therefrom, shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor from the Custodial
Account as provided in Section 3.05. In no event shall the Master Servicer or
the Special Servicer be liable or responsible for any action taken
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or omitted to be taken by the other of them (unless they are the same Person or
Affiliates) or by the Depositor, the Trustee or any Certificateholder, subject
to the provisions of Section 8.05(c).
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer.
The Master Servicer and, subject to Section 6.09, the Special
Servicer may resign from the obligations and duties hereby imposed on it, upon a
determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 7.02 hereof. The Master Servicer and, subject to the
rights of the Controlling Class under Section 6.09 to appoint a successor
special servicer, the Special Servicer shall each have the right to resign at
any other time provided that (i) a willing successor thereto has been found,
(ii) each of the Rating Agencies confirms in writing that the successor's
appointment will not result in a qualification, downgrade or withdrawal of any
rating or ratings then assigned to any Class of Certificates, (iii) the
resigning party pays all costs and expenses in connection with such transfer,
and (iv) the successor accepts appointment prior to the effectiveness of such
resignation. Neither the Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated above in this Section 6.04.
Consistent with the foregoing, neither the Master Servicer nor the
Special Servicer shall, except as expressly provided herein, assign or transfer
any of its rights, benefits or privileges hereunder to any other Person, or,
except as provided in Sections 3.22 and 4.06, delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties, covenants
or obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the Master Servicing Fee and/or the Special
Servicing Fee, as applicable, that accrues pursuant hereto from and after the
date of such transfer shall be payable to such successor.
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, the Underwriter and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder. Upon reasonable request, the Master Servicer
and the Special Servicer shall each furnish the Depositor, the Underwriter and
the Trustee with its most recent publicly available financial statements and
such
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other non-proprietary information as the Master Servicer or the Special
Servicer, as the case may be, shall determine in its sole and absolute
discretion as it possesses, which is relevant to the performance of its duties
hereunder and which it is not prohibited by applicable law or contract from
disclosing. The Depositor may, but is not obligated to, enforce the obligations
of the Master 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 Master Servicer or Special Servicer hereunder or exercise the rights of
the Master Servicer and the Special Servicer hereunder; provided, however, that
neither the Master Servicer nor the Special Servicer shall be relieved of any of
its obligations hereunder by virtue of such performance by the Depositor or its
designee and, provided further, that the Depositor may not exercise any right
pursuant to Section 7.01 to terminate the Master Servicer or the Special
Servicer as a party to this Agreement. The Depositor shall not have any
responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer by the Controlling
Class.
(a) The Holder or Holders of the Certificates evidencing a majority
of the Voting Rights allocated to the Controlling Class may at any time and from
time to time designate a Person to serve as Special Servicer hereunder and to
replace any existing Special Servicer or any Special Servicer that has resigned
or otherwise ceased to serve as Special Servicer. Such Holder or Holders may
also select a representative (the "Controlling Class Representative") from whom
the Special Servicer will seek advice and approval and take direction under
certain circumstances, as described
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herein. Such Holder or Holders shall so designate a Person to serve as
replacement Special Servicer by the delivery to the Trustee, the Master Servicer
and the existing Special Servicer of a written notice stating such designation.
The Trustee shall, promptly after receiving any such notice, deliver to the
Rating Agencies an executed Notice and Acknowledgment in the form attached
hereto as Exhibit I-1. If such Holders have not replaced the Special Servicer
within 30 days of such Special Servicer's resignation or the date such Special
Servicer has ceased to serve in such capacity, the Trustee shall designate a
successor Special Servicer, subject to removal by the Controlling Class and
appointment of a successor thereto pursuant to the terms of this Section 6.09.
Any designated Person (whether designated by Holders of the Controlling Class or
by the Trustee) shall become the Special Servicer on the date as of which the
Trustee shall have received all of the following: (1) written confirmation from
all of the Rating Agencies that the appointment of such Person will not result
in the qualification, downgrade or withdrawal of any rating or ratings then
assigned to any Class of the Certificates; (2) an Acknowledgment of Proposed
Special Servicer in the form attached hereto as Exhibit I-2, executed by the
designated Person, and (3) an Opinion of Counsel (at the expense of the Person
designated to become the Special Servicer) to the effect that, upon the
execution and delivery of the Acknowledgment of Proposed Special Servicer, the
designated Person shall be bound by the terms of this Agreement and that this
Agreement shall be enforceable against the designated Person in accordance with
its terms. Any existing Special Servicer shall be deemed to have resigned
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided, however, that (i) the resigning Special Servicer shall
continue to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the effective date of such resignation, whether in
respect of Servicing Advances or otherwise, (ii) if such Special Servicer was
terminated without cause, it shall be entitled to a portion of certain Workout
Fees thereafter received on the Corrected Mortgage Loans (but only if and to the
extent permitted by Section 3.11(c)) and (iii) such Special Servicer shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
resignation. Such resigning Special Servicer shall cooperate with the Trustee
and the replacement Special Servicer in effecting the termination of the
resigning Special Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer within two Business Days to the replacement
Special Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Special Servicer to the Custodial
Account or the REO Account or should have been delivered to the Master Servicer
or that are thereafter received with respect to Specially Serviced Mortgage
Loans and REO Properties. The Trustee shall notify the other parties hereto and
the Certificateholders of any termination of the Special Servicer and
appointment of a new Special Servicer in accordance with this Section 6.09.
(b) Notwithstanding the foregoing, if the Controlling Class consists
of Book-Entry Certificates, then the rights of the Holders of the Controlling
Class set forth above in this Section 6.09 may be exercised directly by the
relevant Certificate Owners, provided that the identity of such Certificate
Owners has been confirmed to the Trustee to its reasonable satisfaction.
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SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with (except as otherwise set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that is not expressly prohibited by the
terms hereof and would not, in the Master Servicer's or the Special Servicer's
reasonable, good faith judgment, violate the Servicing Standard, but that, if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
good faith judgment, be considered by other Persons to violate the Servicing
Standard, then the Master Servicer or the Special Servicer may (but need not)
seek the approval of the Certificateholders to such action by delivering to the
Trustee a written notice that (a) states that it is delivered pursuant to this
Section 6.10, (b) identifies the Percentage Interest in each Class of
Certificates beneficially owned by the Master Servicer or an Affiliate thereof
or the Special Servicer or an Affiliate thereof, as appropriate, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates, as appropriate) shall have failed to object
in writing to the proposal described in the written notice, and if the Master
Servicer or the Special Servicer shall act as proposed in the written notice
within thirty (30) days, such action shall be deemed to comply with, but not
modify, the Servicing Standard. The Trustee shall be entitled to reimbursement
from the Master Servicer or the Special Servicer, as applicable, for the
reasonable expenses of the Trustee incurred pursuant to this paragraph. It is
not the intent of the foregoing provision that the Master Servicer or the
Special Servicer be permitted to invoke the procedure set forth herein with
respect to routine servicing matters arising hereunder, but rather only in the
case of unusual circumstances.
SECTION 6.11. Certain Powers of the Controlling Class
Representative.
(a) The Controlling Class Representative will be entitled to advise
the Special Servicer with respect to the following actions of the Special
Servicer, and notwithstanding anything in any other Section of this Agreement to
the contrary, but in all cases subject to Section 6.11(b), the Special Servicer
will not be permitted to take any of the following actions unless and until it
has notified the Controlling Class Representative in writing and the Controlling
Class Representative has not objected in writing within 10 Business Days of
having been notified thereof and having been provided with all reasonably
requested information with respect thereto (provided that if such written
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objection has not been received by the Special Servicer within such 10 Business
Day period, then the Controlling Class Representative's approval will be deemed
to have been given):
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification, amendment or waiver of a monetary term
(including, without limitation, the timing of payments) or any material
non-monetary term of a Mortgage Loan;
(iii) any proposed sale of a defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund) for less
than the Purchase Price;
(iv) any acceptance of a discounted payoff;
(v) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(vi) any release of collateral for a Mortgage Loan (other than in
accordance with the terms of, or upon satisfaction of, such Mortgage
Loan);
(vii) any acceptance of substitute or additional collateral for a
Mortgage Loan (other than in accordance with the terms of such Mortgage
Loan);
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance" clause;
and
(ix) any acceptance of an assumption agreement releasing a borrower
from liability under a Mortgage Loan.
In addition, the Controlling Class Representative may direct the Special
Servicer to take, or to refrain from taking, such actions as the Controlling
Class Representative may deem advisable or as to which provision is otherwise
made herein. Upon reasonable request, the Special Servicer shall provide the
Controlling Class Representative with any information in the Special Servicer's
possession with respect to such matters, including, without limitation, its
reasons for determining to take a proposed action; provided that such
information shall also be provided, in a written format, to the Trustee, who
shall make it available for review pursuant to Section 8.14(b).
Each of the Master Servicer and the Special Servicer shall notify
the Controlling Class Representative of any release or substitution of
collateral for a Mortgage Loan even if such release or substitution is in
accordance with such Mortgage Loan.
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(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Controlling Class Representative, as
contemplated by Section 6.11(a), may (and the Special Servicer shall ignore and
act without regard to any such advice, direction or objection that the Special
Servicer has determined, in its reasonable, good faith judgment, will) require
or cause the Special Servicer to violate any provision of this Agreement or the
REMIC Provisions, including, without limitation, the Special Servicer's
obligation to act in accordance with the Servicing Standard.
(c) The Controlling Class Representative will have no liability to
the Certificateholders for any action taken, or for refraining from the taking
of any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that the Controlling Class Representative will not
be protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations or duties. Each
Certificateholder acknowledges and agrees, by its acceptance of its
Certificates, that the Controlling Class Representative may, and is permitted
hereunder to, have special relationships and interests that conflict with those
of Holders of one or more Classes of Certificates, that the Controlling Class
Representative may, and is permitted hereunder to, act solely in the interests
of the Holders of the Controlling Class, that the Controlling Class
Representative does not have any duties to the Holders of any Class of
Certificates other than the Controlling Class, that the Controlling Class
Representative may, and is permitted hereunder to, take actions that favor
interests of the Holders of the Controlling Class over the interests of the
Holders of one or more other Classes of Certificates, that the Controlling Class
Representative shall not be deemed to have been grossly negligent or reckless,
or to have acted in bad faith or engaged in willful misconduct by reason of its
having acted solely in the interests of the Holders of the Controlling Class,
and that the Controlling Class Representative shall have no liability whatsoever
for having so acted, and no Certificateholder may take any action whatsoever
against the Controlling Class Representative, any Holder of the Controlling
Class or any director, officer, employee, agent or principal thereof for having
so acted.
SECTION 6.12. Termination of Master Servicer.
At any time prior to the third anniversary of the Closing Date, the
Depositor may terminate all of the rights and obligations (but not the
liabilities for actions and omissions occurring prior thereto) of the Master
Servicer under this Agreement and in and to the Trust Fund, other than its
rights as a Certificateholder hereunder, upon (i) the payment to the Master
Servicer of a Termination Fee, and (ii) the delivery of 60 days' prior written
notice, provided that the Depositor has appointed a successor willing and able
to assume the obligations of the Master Servicer hereunder (the "Replacement
Master Servicer"), and provided, further, that such termination and appointment
would not (as confirmed in writing by each Rating Agency) result in a
qualification, downgrade or withdrawal of any rating assigned by the Rating
Agencies to any Class of Certificates. Any designated Replacement Master
Servicer may not become the Master Servicer hereunder until the Trustee has
received: (i) written confirmation from all of the Rating Agencies that the
appointment of such Person will not result in a qualification, downgrade or
withdrawal of any of the ratings then
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assigned to the Certificates; (ii) a written agreement pursuant to which the
Replacement Master Servicer assumes all of the obligations and duties of the
Master Servicer hereunder; and (iii) an Opinion of Counsel (at the expense of
the Depositor or the Replacement Master Servicer) to the effect that, upon the
execution and delivery of the written agreement described in the immediately
preceding clause (ii), the designated Replacement Master Servicer shall be bound
by the terms of this Agreement and that this Agreement shall be enforceable
against the designated Replacement Master Servicer in accordance with its terms.
Upon the later of sixty days after the receipt by the Master Servicer of such
written notice of termination and the date on which the Trustee shall have
received each of the items described in the preceding sentence, all authority
and power of the Master Servicer 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 Replacement Master
Servicer pursuant to and under this section. The Master Servicer agrees that if
it is terminated pursuant to this Section 6.12, it shall provide the Replacement
Master Servicer with all documents and records, including those in electronic
form, requested thereby to enable the Replacement Master Servicer to assume the
Master Servicer's functions hereunder, and shall cooperate with the Trustee in
effecting the termination of the Master Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer by the Master Servicer to
the Replacement Master Servicer for administration by it of all cash amounts
that shall at the time or should have been credited by the Master Servicer to
the Custodial Account, the Collection Account, a Servicing Account or a Reserve
Account or that are thereafter received by or on behalf of it with respect to
any Mortgage Loan; provided, however, that the Master Servicer, if terminated
pursuant to this Section 6.12, shall continue to be entitled to receive all
amounts accrued or owing to it under this Agreement on or prior to the date of
such termination, whether in respect of Advances or otherwise, and it shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
termination. The Depositor shall promptly notify the other parties hereto, and
the Trustee shall notify the Certificateholders, of any termination of the
initial Master Servicer pursuant to this Section 6.12.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the Custodial
Account, any amount required to be so deposited or remitted by it under
this Agreement; or
(ii) any failure by the Special Servicer to deposit into the REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, the Custodial Account, any amount required to be so deposited or
remitted under this Agreement; or
(iii) any failure by the Master Servicer to deposit into, or remit
to the Trustee for deposit into, the Collection Account, any amount
required to be so deposited or remitted by it under this Agreement, which
continues unremedied until 11:00 a.m. (New York City time) on the
applicable Distribution Date; or
(iv) any failure by the Master Servicer or the Special Servicer to
timely make any Servicing Advance required to be made by it hereunder,
which Servicing Advance remains unmade for a period of three Business Days
following the date on which notice shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by the Trustee as
provided in Section 3.03(c); or
(v) any failure on the part of the Master 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 Master Servicer or the
Special Servicer, as the case may be, contained in this Agreement, which
continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer or the Special Servicer, as the
case may be, by any other party hereto or to the Master Servicer or the
Special Servicer, as the case may be (with a copy to each other party
hereto), by the Holders of Certificates entitled to at least 25% of the
Voting Rights, provided, however, that with respect to any such breach
which is not curable within such 30- day period, the Master Servicer or
the Special Servicer, as the case may be, shall have an additional cure
period of thirty (30) days to effect such cure so long as the Master
Servicer or the Special Servicer, as the case may be, has commenced to
cure such failure within the initial 30-day period and has provided the
Trustee with an Officer's Certificate certifying that it has diligently
pursued, and is continuing to pursue, a full cure; or
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(vi) any breach on the part of the Master Servicer or the Special
Servicer of any of its representations or warranties contained in this
Agreement that 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 written notice of such breach, requiring the
same to be remedied, shall have been given to the Master Servicer or the
Special Servicer, as the case may be, by any other party hereto or to the
Master Servicer or the Special Servicer, as the case may be (with a copy
to each other party hereto), by the Holders of Certificates entitled to at
least 25% of the Voting Rights, provided, however, that with respect to
any such breach which is not curable within such 30-day period, the Master
Servicer or the Special Servicer, as the case may be, shall have an
additional cure period of thirty (30) days so long as the Master Servicer
or the Special Servicer, as the case may be, has commenced to cure such
failure within the initial 30-day period and provided the Trustee with an
Officer's Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(vii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master 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
(viii) the Master 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 it or
of or relating to all or substantially all of its property; or
(ix) the Master 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
(x) one or more ratings assigned by either Rating Agency to the
Certificates has been qualified, downgraded or withdrawn, or otherwise
made the subject of a "negative" credit watch, which such Rating Agency
has determined is a result of the Master Servicer or Special Servicer, as
the case may be, acting in such capacity; or
(xi) the Master Servicer or the Special Servicer, as the case may
be, is no longer "approved" by either Rating Agency to act in such
capacity for pools of mortgage loans similar to the Mortgage Pool with
ratings similar to that of the Certificates.
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When a single entity acts as the Master Servicer and the Special Servicer, an
Event of Default in one capacity shall constitute an Event of Default in the
other capacity.
(b) If any Event of Default described in clauses (i) - (ix) of
subsection (a) above shall occur with respect to the Master Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") and shall 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 25% of the Voting Rights, the Trustee shall, by notice in writing to the
Defaulting Party (with a copy of such notice to each other party hereto and the
Rating Agencies) terminate all of the rights and obligations (but not the
liabilities for actions and omissions occurring prior thereto) of the Defaulting
Party under this Agreement and in and to the Trust Fund, other than its rights
as a Certificateholder hereunder. If any Event of Default described in clauses
(x)-(xi) of subsection (a) above shall occur with respect to the Master Servicer
or the Special Servicer (in either case, under such circumstances, for purposes
of this Section 7.01(b), the "Defaulting Party"), the Trustee shall, by notice
in writing (to be sent immediately by facsimile transmission) to the Defaulting
Party (with a copy of such notice to each other party hereto and the Rating
Agencies), terminate all of the rights and obligations (but not the liabilities
for actions and omissions occurring prior thereto) of the Defaulting Party under
this Agreement and in and to the Trust Fund, other than its rights, if any, as a
Certificateholder hereunder. From and after the receipt by the Defaulting Party
of such written notice of termination, 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 Master Servicer and the Special Servicer each agree that, if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records, including those
in electronic form, requested thereby to enable the Trustee to assume the Master
Servicer's or Special Servicer's, as the case may be, functions hereunder, and
shall cooperate with the Trustee in effecting the termination of the Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including, without limitation, (i) if the Master Servicer is
the Defaulting Party, the immediate transfer to the Trustee or a successor
Master Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Master Servicer to the Custodial
Account, the Collection Account, a Servicing Account or a Reserve Account or
that are thereafter received by or on behalf of it with respect to any Mortgage
Loan or (ii) if the Special Servicer is the Defaulting Party, the transfer
within two Business Days to the Trustee or a successor Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to the REO Account, the Custodial
Account, a Servicing Account or a Reserve Account or should have been delivered
to the Master Servicer or that are thereafter received by or on behalf of it
with respect to any Mortgage
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Loan or REO Property; provided, however, that the Master Servicer and the
Special Servicer each shall, if terminated pursuant to this Section 7.01(b),
continue to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the date of such termination, whether in respect of
Advances or otherwise, and it shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination. Any cost or expenses in
connection with any actions to be taken by any party hereto pursuant to this
paragraph shall be borne by the Defaulting Party and if not paid by the
Defaulting Party within 90 days after the presentation of reasonable
documentation of such costs and expenses, such expense shall be reimbursed by
the Trust Fund; provided, however, that the Defaulting Party shall not thereby
be relieved of its liability for such expenses. If and to the extent that the
Defaulting Party has not reimbursed such costs and expenses, the Trustee shall
have an affirmative obligation to take all reasonable actions to collect such
expenses on behalf of and at the expense of the Trust Fund. For purposes of this
Section 7.01 and of Section 7.03(b), the Trustee shall not be deemed to have
knowledge of an event which constitutes, or which with the passage of time or
notice, or both, would constitute an Event of Default described in clauses
(i)-(ix) of subsection (a) above unless a Responsible Officer of the Trustee
assigned to and working in the Trustee's Asset-Backed Securities Trust Services
Group has actual knowledge thereof or unless notice of any event which is in
fact such an Event of Default is received by the Trustee and such notice
references the Certificates, the Trust Fund or this Agreement.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless a successor is appointed pursuant to
Section 6.04, be the successor in all respects to the Master Servicer or the
Special Servicer, as the case may be, in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall have
(and the former Master Servicer or the Special Servicer, as the case may be,
shall cease to have) all the responsibilities, duties and liabilities of the
Master Servicer or the Special Servicer, as the case may be, arising thereafter,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances,
including, without limitation, in connection with any termination of the Master
Servicer for an Event of Default described in clause 7.01(a)(iii), the unmade
P&I Advances that gave rise to such Event of Default; provided that any failure
to perform such duties or responsibilities caused by the Master Servicer's or
the Special Servicer's, as the case may be, failure to provide information or
monies required by Section 7.01 shall not be considered a default by the Trustee
hereunder. The Trustee shall not be liable for any of the representations and
warranties of the resigning or terminated party or for any losses incurred by
the resigning or terminated party pursuant to Section 3.06 hereunder nor shall
the Trustee be required to purchase any Mortgage Loan hereunder. As compensation
therefor, the Trustee shall be entitled to all fees and other compensation which
the resigning or terminated party would have been entitled to if the resigning
or terminated party had continued to act hereunder. Notwithstanding the above,
the Trustee may, if it shall be unwilling to so act as either Master Servicer or
Special Servicer, as the case may be, or shall, if it is unable to so act as
either Master Servicer or Special Servicer, as the case may be, or if the
Trustee is not approved as a master servicer or a special servicer, as the case
may be, by
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any of the Rating Agencies, or if the Holders of Certificates entitled to a
majority 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 that meets the requirements of
Section 6.02 (including, without limitation, Rating Agency confirmation of
ratings), as the successor to the Master Servicer or the Special Servicer, as
the case may be, hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer or the Special
Servicer, as the case may be, hereunder; provided, however, that in the case of
a resigning or terminated Special Servicer, such appointment shall be subject to
the rights of the Holders of Certificates evidencing a majority of the Voting
Rights allocated to the Controlling Class to designate a successor pursuant to
Section 6.09. No appointment of a successor to the Master Servicer or the
Special Servicer hereunder shall be effective until the assumption by the
successor to such party of all its responsibilities, duties and liabilities
under this Agreement. Pending appointment of a successor to the Master Servicer
or the Special Servicer hereunder, the Trustee shall act in such capacity as
hereinabove provided. In connection with any such appointment and assumption
described herein, the Trustee may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation shall be in excess of
that permitted the resigning or terminated party hereunder. Such successor and
the other parties hereto shall take such action, consistent with this Agreement,
as shall be necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, 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) five days after a Responsible Officer of
the Trustee has notice of the occurrence of such an event, the Trustee shall
transmit by mail to the Depositor and all Certificateholders and the Rating
Agencies notice of such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clauses (i), (ii), (iii) or (x)-(xi) 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.
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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
Voting Rights with respect to the matters described above.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
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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 waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs; provided that if the Trustee is acting as Master Servicer or
Special Servicer, it shall act in accordance with the Servicing Standard. 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 Master
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 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;
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(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;
(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; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as
Authenticating Agent, Certificate Registrar, REMIC Administrator and
Custodian.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' 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, except as provided in
Section 10.01 or 10.02, 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; except as provided
in Section 10.01 or 10.02, 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
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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, and
except as may be provided in Section 10.01 or 10.02, 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 25% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action;
(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 Trustee shall remain responsible
for all acts and omissions of such agents or attorneys within the scope of
their employment to the same extent as it is responsible for its own
actions and omissions hereunder; and
(vii) the Trustee shall not be responsible for any act or omission
of the Master Servicer or the Special Servicer (unless the Trustee is
acting as Master Servicer or the Special Servicer) or the Depositor.
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee and the Fiscal Agent in Article II,
Section 8.16 and Section 8.18 and the signature of the Certificate Registrar and
the Authenticating Agent set forth on each outstanding Certificate, shall not be
taken as the statements of the Trustee or the Fiscal Agent, and neither the
Trustee nor the Fiscal Agent shall assume any responsibility for their
correctness. Except as expressly set forth in Sections 8.16 and 8.18, the
Trustee and the Fiscal Agent make no representations as to the validity or
sufficiency of this Agreement or of any Certificate (other than as to the
signature of the Trustee set forth thereon) or of any Mortgage Loan or related
document. The Trustee and the Fiscal Agent shall not be accountable for the use
or application by the Depositor of any of the Certificates issued to it or of
the proceeds of such Certificates, or for the use or application of any funds
paid to the Depositor in respect of the assignment of the Mortgage Loans to the
Trust Fund,
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or any funds deposited in or withdrawn from the Custodial Account or any other
account by or on behalf of the Depositor, the Master Servicer or the Special
Servicer. The Trustee and the Fiscal Agent shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer or the Special Servicer, and accepted by the Trustee in good faith,
pursuant to this Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent or any agent of the Trustee and the
Fiscal Agent, in its individual or any other capacity, may become the owner or
pledgee of Certificates with (except as otherwise provided in the definition of
"Certificateholder") the same rights it would have if it were not the Trustee,
the Fiscal Agent or such agent.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Collection Account, prior to any distributions
to be made therefrom on such date, and pay to itself all earned but unpaid
Trustee's Fees, as compensation for all services rendered by the Trustee in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties of the Trustee hereunder. The Trustee's Fees (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) shall constitute the Trustee's sole compensation
for such services to be rendered by it.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified for and held harmless by the Trust
Fund against any loss, liability or reasonable "out-of-pocket" expense
(including, without limitation, costs and expenses incurred in connection with
removal of the Special Servicer and Master Servicer pursuant to Sections 7.01
and 7.02, costs and expenses of litigation, and of investigation, counsel fees,
damages, judgments and amounts paid in settlement) arising out of, or incurred
in connection with this Agreement or the Certificates ("Trustee Liability");
provided that such loss, liability or expense constitutes an "unanticipated
expense" within the meaning of Treasury regulation Section 1.860G-1(b)(3)(ii);
and provided, further, that neither the Trustee nor any of the other above
specified Persons shall be entitled to indemnification pursuant to this Section
8.05(b) for (1) any liability specifically required to be borne thereby pursuant
to the terms hereof, or (2) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or as may arise from a breach of any
representation, warranty or covenant of the Trustee made herein, or (3) any
loss, liability or expense that constitutes allocable overhead. The provisions
of this Section 8.05(b) and of Section 8.05(c) shall survive any resignation or
removal of the Trustee and appointment of a successor trustee.
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(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any of the other parties on
the one hand and the Trustee on the other in connection with the actions or
omissions which resulted in such Trustee Liability, as well as any other
relevant equitable considerations.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a bank, a trust company,
an association or a corporation organized and doing business under the laws of
the United States of America or any state thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $100,000,000 and subject to supervision or examination
by federal or state banking authority. If such bank, trust company, association
or corporation 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 bank,
trust company, association or corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Trustee shall at all times maintain a long-term unsecured debt
rating of at least "Aa2" or "AA", as applicable (or, if a Fiscal Agent meeting
the requirements of Section 8.17(a) is then currently acting in such capacity,
of at least investment grade) from each Rating Agency (or, in the case of either
Rating Agency, such other rating as shall not result in the qualification,
downgrade or withdrawal of any of the ratings then assigned to the respective
Classes of the Certificates by such Rating Agency, as confirmed in writing by
such Rating Agency). If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07;
provided that if the Trustee shall cease to be so eligible because its combined
capital and surplus is no longer at least $100,000,000 or its long-term
unsecured debt rating no longer conforms to the requirements of the immediately
preceding sentence, and if the Trustee proposes to the other parties hereto to
enter into an agreement with (and reasonably acceptable to) each of them, and if
in light of such agreement the Trustee's continuing to act in such capacity
would not (as evidenced in writing by each Rating Agency) cause either Rating
Agency to qualify, downgrade or withdraw any rating assigned thereby to any
Class of Certificates, then upon the execution and delivery of such agreement
the Trustee shall not be required to resign, and may continue in such capacity,
for so long as none of the ratings assigned by the Rating Agencies to the
Certificates is adversely affected thereby. The bank, trust company, corporation
or association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Master Servicer, the Special Servicer and
their respective Affiliates.
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SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master 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 Depositor 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
Master 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 if at any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee shall fail (other than by reason of the failure of either the Master
Servicer or the Special Servicer to timely perform its obligations hereunder or
as a result of other circumstances beyond the Trustee's reasonable control), to
timely deliver any current or revised Distribution Date Statement, CSSA Loan
File Report, CSSA Property File Report or other report or statement required by
Section 4.02 and such failure shall continue unremedied for a period of five
days, or if a tax is imposed or threatened with respect to the Trust Fund by any
state in which the Trustee is located or in which it holds any portion of the
Trust Fund, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Depositor and the Master Servicer by written
instrument, in duplicate, which instrument shall be delivered to the Trustee so
removed and to the successor trustee. A copy of such instrument shall be
delivered to the Master Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Master Servicer, one complete set to the Trustee so removed
and one complete set to the successor trustee so appointed. A copy of such
instrument shall be delivered to the Depositor, the Special Servicer and the
remaining Certificateholders by the successor so appointed. In the event that
the Trustee is terminated or removed pursuant to this Section 8.07, all of its
and any corresponding Fiscal Agent's rights and obligations under this Agreement
and in and to the Mortgage Loans shall be terminated, other than any rights or
obligations that accrued prior to the date of such termination or removal
(including the right to receive all fees, expenses and other amounts (including,
without limitation, P&I Advances and accrued interest thereon) accrued or owing
to it under this Agreement, with respect to periods prior to the date of such
termination or removal, and no termination without cause shall be effective
until the payment of such amounts to the Trustee and such Fiscal Agent).
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(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and to the predecessor trustee an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee (at the expense of the Trust Fund if the
Trustee has been removed in accordance with Section 8.07(c) without cause) 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 third-party
Custodian, which Custodian shall become the agent of the successor trustee), and
the Depositor, the Master Servicer, the Special Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations, and to enable
the successor trustee to perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor, the Master Servicer, the
Special Servicer and the Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent.
Any entity into which the Trustee or the Fiscal Agent may be merged
or converted, or with which the Trustee or the Fiscal Agent may be consolidated,
or any entity resulting from any merger, conversion or consolidation to which
the Trustee or the Fiscal Agent shall be a party, or any entity succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee or the Fiscal Agent, as the case may be, hereunder, provided such entity
shall be eligible under the provisions of Section 8.06 or Section 8.17(a), as
applicable, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
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SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Trustee 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 Master Servicer and the Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts vested therein pursuant to
the applicable instrument of appointment and this Section 8.10, shall vest in
and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
either Mortgage Loan Seller or any Affiliate of any of them. Neither the Master
Servicer nor the Special Servicer shall have any duty to verify that any such
Custodian is qualified to act as such in accordance with the preceding sentence.
The Trustee may enter into agreements to appoint a Custodian which is not the
Trustee, provided that, such agreement: (i) is consistent with this Agreement in
all material respects and requires the Custodian to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Trustee shall
for any reason no longer act in the capacity of Trustee hereunder, the successor
Trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the
Custodian under such agreement or, alternatively, may terminate such agreement
without cause and without payment of any penalty or termination fee; and (iii)
does not permit the Custodian any rights of indemnification that may be
satisfied out of assets of the Trust Fund. 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. In the absence of any other Person appointed in accordance herewith
acting as Custodian, the Trustee agrees to act in such capacity in accordance
with the terms hereof. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Custodian, any provision or requirement herein
requiring notice or any information or documentation to be provided to the
Custodian shall be construed to require that such notice, information or
documents also be provided to the Trustee. Any Custodian hereunder shall at all
times maintain a fidelity bond and errors and omissions policy in amounts
customary for custodians performing duties similar to those set forth in this
Agreement and, in any event, satisfying the same requirements (including as to
the insurer) as are applicable to any such bond or policy required to be
maintained by the Master Servicer pursuant to Section 3.07.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may appoint at the Trustee's expense an
Authenticating Agent, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, with the obligations
and responsibilities herein. Each Authenticating Agent must be organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined capital
and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same
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obligations, standard of care, protection and indemnities as would be imposed
on, or would protect, the Trustee hereunder. The appointment of an
Authenticating Agent shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of the Authenticating Agent. In the absence of any other Person appointed in
accordance herewith acting as Authenticating Agent, the Trustee hereby agrees to
act in such capacity in accordance with the terms hereof. Notwithstanding
anything herein to the contrary, if the Trustee is no longer the Authenticating
Agent, any provision or requirement herein requiring notice or any information
or documentation to be provided to the Authenticating Agent shall be construed
to require that such notice, information or documentation also be provided to
the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent appointed in accordance with this
Section 8.12 may at any time resign by giving at least 30 days' advance written
notice of resignation to the Trustee, the Master Servicer, the Special Servicer
and the Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent appointed in accordance with this Section 8.12 by giving
written notice of termination to such Authenticating Agent, the Master Servicer
and the Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 8.12, the Trustee may
appoint a successor Authenticating Agent, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Certificate
Registrar and the Depositor and shall mail notice of such appointment to all
Holders of Certificates; provided, however, that no successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
8.12. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent.
SECTION 8.13. Appointment of REMIC Administrators.
(a) The Trustee may appoint at the Trustee's expense any Person with
appropriate tax-related experience to act as REMIC Administrator hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as REMIC Administrator, the Trustee agrees to act in such
capacity in accordance with the terms hereof. The appointment of a REMIC
Administrator shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of the REMIC Administrator. The Trustee shall cause any such REMIC Administrator
appointed by it to execute and deliver to the Trustee an instrument in which
such REMIC Administrator shall agree to act in such capacity, with the
obligations and responsibilities herein.
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(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator appointed in accordance with this
Section 8.13 may at any time resign by giving at least 30 days' advance written
notice of resignation to the Trustee, the Master Servicer, the Special Servicer
and the Depositor. The Trustee may at any time terminate the agency of any REMIC
Administrator appointed in accordance with this Section 8.13 by giving written
notice of termination to such REMIC Administrator, the Master Servicer, and the
Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any REMIC Administrator shall cease to be
eligible in accordance with the provisions of this Section 8.13, the Trustee may
appoint a successor REMIC Administrator, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Special Servicer
and the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor REMIC Administrator shall be
appointed unless eligible under the provisions of this Section 8.13. Any
successor REMIC Administrator upon acceptance of its appointment hereunder shall
become vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as REMIC
Administrator.
SECTION 8.14. Access to Certain Information.
(a) The Trustee shall afford to the Master Servicer, the Special
Servicer and the Depositor, and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Mortgage Loans
within its control that may be required to be provided 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 Trustee designated by it.
(b) The Trustee shall maintain in its possession and, upon
reasonable prior written request and during normal business hours, shall make
available for review by the Depositor, the Rating Agencies, the Controlling
Class Representative and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee as a
prospective Transferee of a Certificate or an interest therein, originals and/or
copies of the following items: (i) the Prospectus, the Memorandum and any other
disclosure document relating to the Certificates, in the form most recently
provided to the Trustee by the Depositor or by any Person designated by the
Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to the
Trustee since the Closing Date and any amendments hereto or thereto; (iii) all
Certificateholder Reports delivered to Certificateholders pursuant to Section
4.02(a) since the Closing Date; (iv) all Annual Performance Certifications
delivered by the Master Servicer and the Special Servicer, respectively, to the
Trustee since the Closing Date; (v) all Annual Accountants' Reports caused to be
delivered by or on behalf
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of the Master Servicer and the Special Servicer, respectively, to the Trustee
since the Closing Date; (vi) any and all notices and reports delivered to the
Trustee with respect to any Mortgaged Property 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; (vii) each of the Mortgage Files, including any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into or consented to by the Special Servicer and delivered to the Trustee
pursuant to Section 3.20; (viii) the most recent appraisal for each Mortgaged
Property and REO Property that has been delivered to the Trustee (each appraisal
obtained hereunder with respect to any Mortgaged Property or REO Property to be
delivered to the Trustee by the Master Servicer or Special Servicer, as
applicable, promptly following its having been obtained); (ix) any and all
Officer's Certificates and other evidence delivered to or by the Trustee to
support its, the Master Servicer's, the Special Servicer's or the Fiscal
Agent's, as the case may be, determination that any Advance was (or, if made,
would be) a Nonrecoverable Advance; (x) any and all information provided to the
Trustee pursuant to Section 6.11(a); (xi) the Schedule of Exceptions to Mortgage
File Delivery prepared by the Trustee pursuant to Section 2.02(a) and any
exception report prepared by the Trustee pursuant to Section 2.02(b); (xii) all
notices of a breach of representation and warranty given by or received by the
Trustee with respect to any party hereto; and (xiii) any Officer's Certificate
delivered to the Trustee by the Special Servicer in connection with a Final
Recovery Determination pursuant to Section 3.09(h). The Trustee shall provide
copies of any and all of the foregoing items upon written request of any of the
parties set forth in the previous sentence; however, except in the case of the
Rating Agencies, the Trustee shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies.
Upon the reasonable request of any Certificateholder, or any Certificate Owner
identified to the Trustee to the Trustee's reasonable satisfaction, the Trustee
shall request from the Master Servicer copies of any inspection reports prepared
by the Master Servicer or the Special Servicer, copies of any operating
statements, rent rolls and financial statements obtained by the Master Servicer
or the Special Servicer and copies of any Operating Statement Analyses and NOI
Adjustment Worksheets prepared by the Master Servicer or the Special Servicer;
and, upon receipt, the Trustee shall make such items available to the requesting
Certificateholder or Certificate Owner.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Trustee shall require: (a) in the case
of Certificate Owners, a confirmation executed by the requesting Person (in a
form reasonably acceptable to the Trustee) generally to the effect that such
Person is a beneficial holder of Book-Entry Certificates and will keep such
information confidential (except that such Certificate Owner may provide such
information to any other Person that holds or is contemplating the purchase of
any Certificate or interest therein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential); and (b) in the case of a prospective
purchaser of a Certificate or an interest therein, confirmation executed by the
requesting Person (in a form reasonably acceptable to the Trustee) generally to
the effect that such Person is a prospective purchaser of a Certificate or an
interest therein, is requesting the information for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Holders of the Certificates, by their acceptance thereof, will
be deemed to have agreed to keep such
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information confidential (except that any Holder may provide any such
information obtained by it to any other Person that holds or is contemplating
the purchase of any Certificate or interest therein, provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential).
(c) The Trustee shall not be liable for providing or disseminating
information in accordance with Section 8.14(a) or (b).
SECTION 8.15. Reports to the Securities and Exchange Commission;
Available Information.
The Depositor shall prepare for filing, and the Trustee shall
execute, on behalf of the Trust Fund, and file with the Securities and Exchange
Commission, any and all reports, statements and information respecting the Trust
Fund and/or the Certificates required to be filed on behalf of the Trust Fund
under the Exchange Act. The Depositor agrees to indemnify and hold harmless the
Trustee with respect to any liability, cost or expenses, including reasonable
attorneys' fees, arising from the Trustee's execution of such reports,
statements and information that contain errors or omissions or is otherwise
misleading, provided, however, that if the indemnification provided for herein
is invalid or unenforceable, then the Depositor shall contribute to the amount
paid by the Trustee as a result of such liability in such amount as is necessary
to limit the Trustee's responsibility for any such payment to any amount
resulting from its own fault.
SECTION 8.16. Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee
or separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, 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.
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(iv) This Agreement, assuming due authorization, execution and
delivery by 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 (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement, including, but not limited to, its responsibility
to make P&I Advances if the Master Servicer fails to make a P&I Advance,
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 that, if determined adversely to
the Trustee, 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.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement, or the consummation of the transactions contemplated by this
Agreement, has been obtained and is effective, except where the lack of
consent, approval, authorization or order would not have a material
adverse effect on the performance by the Trustee under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations and warranties of the Trustee set forth in
Section 8.16(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 Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations, warranties and
covenants, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
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(c) Any successor Trustee shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 8.16(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 8.16(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 8.17. The Fiscal Agent.
(a) The Fiscal Agent shall at all times maintain a long-term
unsecured debt rating of no less than "Aa2" from Moody's and "AA" from S&P (or,
in the case of either Rating Agency, such lower rating as will not (as confirmed
in writing by such Rating Agency) result in any of the ratings then assigned by
such Rating Agency to the respective Classes of Certificates being qualified,
downgraded or withdrawn).
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor master
servicer or otherwise, and has failed to do so in accordance with the terms
hereof, the Fiscal Agent shall make such Advance when and as required by the
terms of this Agreement on behalf the Trustee as if the Fiscal Agent were the
Trustee hereunder. To the extent that the Fiscal Agent makes an Advance pursuant
to this Section 8.17(b) or otherwise pursuant to the Agreement, the obligations
of the Trustee under this Agreement in respect of such Advance shall be
satisfied. Notwithstanding anything contained in this Agreement to the contrary,
the Fiscal Agent shall be entitled to all limitations on liability, rights of
reimbursement and indemnities that the Trustee is entitled to hereunder as if it
were the Trustee.
(c) All fees and expenses of the Fiscal Agent (other than interest
owed to the Fiscal Agent in respect of unreimbursed Advances) incurred by the
Fiscal Agent in connection with the transactions contemplated by this Agreement
shall be borne by the Trustee, and neither the Trustee nor the Fiscal Agent
shall be entitled to reimbursement therefor from any of the Trust Fund, the
Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of the Fiscal Agent set forth in this Section
8.17 or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it (or, in the case of the initial Fiscal Agent, so long
as the initial Trustee) shall act as Trustee hereunder. The Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 8.06; provided that the Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it (or, in the case of
the initial Fiscal Agent, at such time as the initial Trustee) resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, insofar as
such appointment is necessary for such successor Trustee to satisfy the
eligibility requirements of Section 8.06). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of the Fiscal Agent set forth
in this Agreement; provided that no such successor shall become
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Fiscal Agent hereunder unless either (i) it satisfies the rating requirements of
Section 8.17(a) or (ii) the Trustee shall have received written confirmation
from each Rating Agency that the succession of such proposed successor fiscal
agent would not, in and of itself, result in a qualification, downgrade or
withdrawal of any of the then current ratings on the Certificates.
(e) The Trustee shall promptly notify the other parties hereto and
the Certificateholders in writing of the appointment, resignation or removal of
any Fiscal Agent.
SECTION 8.18. Representations and Warranties of Fiscal Agent.
(a) The Fiscal Agent hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as the
Closing Date, that:
(i) The Fiscal Agent is a banking association duly organized,
validly existing and in good standing under the laws of the Netherlands.
(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 organizational
documents or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in a
material breach of, any material agreement or other instrument to which it
is a party or by which it is bound.
(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 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 (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.
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(vi) No litigation is pending or, to the best of the Fiscal Agent's
knowledge, threatened against the Fiscal Agent that, if determined
adversely to the Fiscal Agent, 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 of the Fiscal Agent to perform its obligations under this
Agreement or the financial condition of the Fiscal Agent.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Fiscal Agent of or compliance by the Fiscal Agent with
this Agreement, or the consummation of the transactions contemplated by
this Agreement, has been obtained and is effective, except where the lack
of consent, approval, authorization or order would not have a material
adverse effect on the performance by the Fiscal Agent under this
Agreement.
(b) The representations and warranties of the Fiscal Agent set forth
in Section 8.18(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 Fund 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 given prompt written notice thereof to the
other parties hereto.
(c) Any successor Fiscal Agent shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 8.18(a) subject to such appropriate modifications to the
representations and warranties set forth in Section 8.18(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
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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
Master Servicer, the Special Servicer, the Fiscal Agent and the Trustee (other
than the obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment): (i) 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 (A) the purchase by the
Depositor, the Master Servicer, the Underwriter, the Special Servicer or the
Dominant Controlling Class Certificateholder of all Mortgage Loans and each REO
Property remaining in REMIC I at a price equal to (1) the greater of (x) the
aggregate Purchase Price of all the Mortgage Loans and any REO Properties then
included in REMIC I and (y) the aggregate fair market value of such Mortgage
Loans and REO Properties (determined as mutually agreed upon by the Master
Servicer, the Special Servicer and the Trustee), minus (2) if the purchaser is
the Master Servicer or the Special Servicer, the aggregate amount of
unreimbursed Advances made by such Person, together with any interest accrued
and payable to such Person in respect of unreimbursed Advances in accordance
with Section 3.03(d) and, in the case of the Master Servicer, Section 4.03(d),
and any unpaid servicing compensation remaining outstanding (which items shall
be deemed to have been paid or reimbursed to the Master Servicer or the Special
Servicer, as the case may be, in connection with such purchase), and (B) the
final payment or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan or REO Property remaining in REMIC I; and (ii) to the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer and the
officers, directors, employees and agents of each of them of all amounts which
may have become due and owing to any of them hereunder; provided, however, that
in no event shall the trust created hereby continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the Court of St. James,
living on the date hereof.
The Depositor, the Underwriter, the Special Servicer, the Dominant
Controlling Class Certificateholder or the Master Servicer, in that order of
priority (with the Depositor having the highest priority), may at its option
elect to purchase all of the Mortgage Loans and each REO Property remaining in
REMIC I as contemplated by clause (i) of the preceding paragraph by giving
written notice to the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that (i) the aggregate Stated
Principal Balance of the Mortgage Pool at the time of such election is less than
1% of the aggregate Cut-off Date Balance of the Mortgage Pool set forth in the
Preliminary Statement, and (ii) no such Person shall have the right to effect
such a purchase if, within 30 days following its delivery of a notice of
election pursuant to this paragraph, any other such Person with a higher
priority shall give notice of its election to purchase all of the
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Mortgage Loans and each REO Property remaining in REMIC I and shall thereafter
effect such purchase in accordance with the terms hereof. If the Trust Fund is
to be terminated in connection with the Master Servicer's, the Special
Servicer's, the Dominant Controlling Class Certificateholder's, the
Underwriter's or the Depositor's purchase of all of the Mortgage Loans and each
REO Property remaining in REMIC I, the Master Servicer, the Special Servicer,
the Dominant Controlling Class Certificateholder, the Underwriter or the
Depositor, as applicable, shall deliver to the Trustee for deposit in the
Collection Account not later than the fifth Business Day preceding the
Distribution Date on which the final distribution on the Certificates is to
occur an amount in immediately available funds equal to the above-described
purchase price (exclusive of any portion of such purchase price which would, if
it were then on deposit in the Custodial Account, be payable to any Person
pursuant to any of clauses (ii) through (xv) of Section 3.05(a), which portion
shall be deposited in the Custodial Account). In addition, the Master Servicer
shall transfer to the Collection Account all amounts required to be transferred
thereto on such P&I Advance Date from the Custodial Account pursuant to the
first paragraph of Section 3.04(b), together with any other amounts on deposit
in the Custodial Account that would otherwise be held for future distribution.
Upon confirmation that such final deposits have been made, the Trustee shall
release or cause to be released to the Master Servicer, the Special Servicer,
the Dominant Controlling Class Certificateholder, the Underwriter or the
Depositor, as applicable, the Mortgage Files for the remaining Mortgage Loans
and shall execute all assignments, endorsements and other instruments furnished
to it by the Master Servicer, the Special Servicer, the Dominant Controlling
Class Certificateholder, the Underwriter or the Depositor, as applicable, as
shall be necessary to effectuate transfer of the Mortgage Loans and REO
Properties to the Depositor, the Master Servicer, the Special Servicer, the
Underwriter or the Dominant Controlling Class Certificateholder (or their
respective designees), as applicable. Any transfer of Mortgage Loans pursuant to
this paragraph shall be on a servicing-released basis.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (a) if such notice is given in connection
with the Depositor's, the Master Servicer's, the Special Servicer's, the
Underwriter's or the Dominant Controlling Class Certificateholder's purchase of
the Mortgage Loans and each REO Property remaining in REMIC I, 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 eighth day of 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. The Trustee shall give such
notice to the Master Servicer, the Special Servicer and the Depositor at the
time such notice is given to Certificateholders.
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 Collection Account that are allocable to payments on the Class of
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Certificates so presented and surrendered. Amounts on deposit in the Collection
Account as of the final Distribution Date, exclusive of any portion thereof that
would be payable to any Person in accordance with clauses (ii) through (viii) of
Section 3.05(b), and further exclusive of any portion thereof that represents
Prepayment Premiums, Yield Maintenance Charges and/or Additional Interest, shall
be allocated in the following order of priority, in each case to the extent of
remaining available funds:
(i) to distributions of interest to the Holders of the respective
Classes of the Senior Certificates, up to an amount equal to, and pro rata
in accordance with, all Distributable Certificate Interest in respect of
each such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior Distribution Dates;
(ii) to distributions of principal to the Holders of the respective
Classes of Class A Certificates, up to an amount equal to, and pro rata in
accordance with, the Class Principal Balance of each such Class of
Certificates outstanding immediately prior to such Distribution Date;
(iii) to distributions to the Holders of the respective Classes of
Class A Certificates, up to an amount equal to, pro rata in accordance
with, and in reimbursement of, all Realized Losses and Additional Trust
Fund Expenses, if any, previously allocated to each such Class of
Certificates and not previously reimbursed;
(iv) to distributions of interest to the Holders of the Class B
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class B Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(v) to distributions of principal to the Holders of the Class B
Certificates, up to an amount equal to the Class Principal Balance of the
Class B Certificates outstanding immediately prior to such Distribution
Date;
(vi) to distributions to the Holders of the Class B Certificates, up
to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
B Certificates and not previously reimbursed;
(vii) to distributions of interest to the Holders of the Class C
Certificates up to an amount equal to all Distributable Certificate
Interest in respect of the Class C Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(viii) to distributions of principal to the Holders of the Class C
Certificates, up to an amount equal to the Class Principal Balance of the
Class C Certificates outstanding immediately prior to such Distribution
Date;
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(ix) to distributions to the Holders of the Class C Certificates, up
to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
C Certificates and not previously reimbursed;
(x) to distributions of interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class D Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xi) to distributions of principal to the Holders of the Class D
Certificates, up to an amount equal to the Class Principal Balance of the
Class D Certificates outstanding immediately prior to such Distribution
Date;
(xii) to distributions to the Holders of the Class D Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
D Certificates and not previously reimbursed;
(xiii) to distributions of interest to the Holders of the Class E
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class E Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xiv) to distributions of principal to the Holders of the Class E
Certificates, up to an amount equal to the Class Principal Balance of the
Class E Certificates outstanding immediately prior to such Distribution
Date;
(xv) to distributions to the Holders of the Class E Certificates, up
to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
E Certificates and not previously reimbursed;
(xvi) to distributions of interest to the Holders of the Class F
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class F Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xvii) to distributions of principal to the Holders of the Class F
Certificates, up to an amount equal to the Class Principal Balance of the
Class F Certificates outstanding immediately prior to such Distribution
Date;
(xviii) to distributions to the Holders of the Class F Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses if any, previously allocated to the Class F
Certificates and not previously reimbursed;
(xix) to distributions of interest to the Holders of the Class G
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class G Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
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(xx) to distributions of principal to the Holders of the Class G
Certificates, up to an amount equal to the Class Principal Balance of the
Class G Certificates outstanding immediately prior to such Distribution
Date;
(xxi) to distributions to the Holders of the Class G Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
G Certificates and not previously reimbursed;
(xxii) to distributions of interest to the Holders of the Class H
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class H Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxiii) to distributions of principal to the Holders of the Class H
Certificates, up to an amount equal to the Class Principal Balance of the
Class H Certificates outstanding immediately prior to such Distribution
Date;
(xxiv) to distributions to the Holders of the Class H Certificates
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
H Certificates and not previously reimbursed;
(xxv) to distributions of interest to the Holders of the Class J
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class J Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxvi) to distributions of principal to the Holders of the Class J
Certificates, up to an amount equal to the Class Principal Balance of the
Class J Certificates outstanding immediately prior to such Distribution
Date;
(xxvii) to distributions to the Holders of the Class J Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
J Certificates and not previously reimbursed;
(xxviii) to distributions of interest to the Holders of the Class K
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class K Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxix) to distributions of principal to the Holders of the Class K
Certificates, up to an amount equal to the Class Principal Balance of the
Class K Certificates outstanding immediately prior to such Distribution
Date;
(xxx) to distributions to the Holders of the Class K Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
K Certificates and not previously reimbursed;
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(xxxi) to distributions of interest to the Holders of the Class L
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class L Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxxii) to distributions of principal to the Holders of the Class L
Certificates, up to an amount equal to the Class Principal Balance of the
Class L Certificates outstanding immediately prior to such Distribution
Date;
(xxxiii) to distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class L Certificates and not previously reimbursed;
(xxxiv) to distributions of interest to the Holders of the Class M
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class M Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxxv) to distributions of principal to the Holders of the Class M
Certificates, up to an amount equal to the Class Principal Balance of the
Class M Certificates outstanding immediately prior to such Distribution
Date;
(xxxvi) to distributions to the Holders of the Class M Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
M Certificates and not previously reimbursed;
(xxxvii) to distributions of interest to the Holders of the Class N
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class N Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xxxviii) to distributions of principal to the Holders of the Class
N Certificates, up to an amount equal to the Class Principal Balance of
the Class N Certificates outstanding immediately prior to such
Distribution Date;
(xxxix) to distributions to the Holders of the Class N Certificates,
up to an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
N Certificates and not previously reimbursed;
(xl) to make distributions to the Holders of the Class R-III
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.01(j), over (B)
the aggregate distributions made in respect of the Regular Interest
Certificates on such Distribution Date pursuant to clauses (i) through
(xxxix) above;
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(xli) to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.01(k), over (B)
the aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.01(j); and
(xlii) to distributions to the Holders of the Class R-I
Certificates, up to an amount equal to the balance, if any, of the
Available Distribution Amount for such Distribution Date remaining after
the distributions to be made on such Distribution Date pursuant to clauses
(i) through (xli) above.
All distributions of interest made in respect of the Class X
Certificates on the final Distribution Date pursuant to clause (i) above, shall
be deemed to have been made in respect of the respective Components of such
Class, pro rata in accordance with the respective amounts of Distributable
Component Interest in respect of such Components for such Distribution Date and,
to the extent not previously deemed paid pursuant to Section 4.01(a)(iv), for
all prior Distribution Dates.
Any Prepayment Premiums and Yield Maintenance Charges on deposit in
the Collection Account as of the final Distribution Date (net of any Workout
Fees and/or Liquidation Fees payable therefrom) shall be distributed among the
Holders of the Class X, Class A-1-a, Class A-1-b, Class A-2, Class B, Class C,
Class D, Class E, Class F and Class G Certificates in accordance with Section
4.01(c).
Any amounts representing Additional Interest on deposit in the
Collection Account as of the final Distribution Date shall be distributed among
the Holders of the Class A-1-b, Class A-2, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates in accordance with Section 4.01(d).
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 9.01 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
reasonable 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 former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been
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surrendered for cancellation, then, subject to applicable law, the Trustee shall
distribute to the Class R-III Certificateholders all unclaimed funds and other
assets which remain subject hereto.
All actual distributions on the respective Classes of REMIC III
Certificates on the final Distribution Date in accordance with foregoing
provisions of this Section 9.01 shall be deemed to first have been distributed
from REMIC I to REMIC II on the various REMIC I Regular Interests in accordance
with Section 4.01(k) and then from REMIC II to REMIC III on the various REMIC II
Regular Interests in accordance with Section 4.01(j).
SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor, the Underwriter, the Dominant Controlling
Class Certificateholder, the Special Servicer or the Master Servicer purchases
all of the Mortgage Loans and each REO Property remaining in REMIC I as provided
in Section 9.01, the Trust Fund (and, accordingly, REMIC I, REMIC II and REMIC
III) shall be terminated in accordance with the following additional
requirements, unless the Person effecting such purchase obtains at its own
expense and delivers to the Trustee and the REMIC Administrator, an Opinion of
Counsel, addressed to the Trustee and the REMIC Administrator, to the effect
that the failure of the Trust Fund to comply with the requirements of this
Section 9.02 will not result in the imposition of taxes on "prohibited
transactions" of REMIC I, REMIC II and REMIC III as defined in Section 860F of
the Code or cause REMIC I, REMIC II and REMIC III to fail to qualify as a REMIC
at any time that any Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax Return
for each of REMIC I, REMIC II and REMIC III pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder as set forth in an Opinion of Counsel obtained at the expense
of the Trust Fund;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of REMIC I to the Master Servicer, the Underwriter,
the Dominant Controlling Class Certificateholder, the Special Servicer or
the Depositor, as applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each of REMIC I, REMIC II and REMIC III shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the REMIC Administrator to specify the 90-day liquidation
period for each of REMIC I, REMIC II and REMIC III, which authorization shall be
binding upon all successor Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I,
REMIC II and REMIC III 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 or state Tax Returns for the taxable year ending on the last
day of the calendar year in which the Certificates are issued.
(b) The REMIC I Regular Interests, the REMIC II Regular Interests
and the Regular Interest Certificates (or, in the case of the X Certificates,
each of the Components of such Class) are hereby designated as "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) in REMIC I,
REMIC II and REMIC III, respectively. The Class R-I Certificates, the Class R-II
Certificates and the Class R-III Certificates are hereby designated as the
single class of "residual interests" (within the meaning of Section 860G(a)(2)
of the Code) in REMIC I, REMIC II and REMIC III, respectively. None of the
Master Servicer, the Special Servicer or the Trustee shall (to the extent within
its control) permit the creation of any other "interests" in REMIC I, REMIC II
or REMIC III (within the meaning of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
REMIC I, REMIC II and REMIC III within the meaning of Section 860G(a)(9) of the
Code.
(d) The related Plurality Residual Interest Certificateholder as to
the applicable taxable year is hereby designated as the Tax Matters Person of
each of REMIC I, REMIC II and REMIC III, and shall act on behalf of the related
REMIC in relation to any tax matter or controversy and shall represent the
related REMIC in any administrative or judicial proceeding relating to an
examination or audit by any governmental taxing authority; provided that the
REMIC Administrator is hereby irrevocably appointed to act and shall act (in
consultation with the Tax Matters Person for each of REMIC I, REMIC II and REMIC
III) as agent and attorney-in-fact for the Tax Matters Person for each of REMIC
I, REMIC II and REMIC III in the performance of its duties as such.
(e) For purposes of Treasury regulation Section 1.860G-1(a)(4)(iii),
the related Legal Final Distribution Date has been designated the "latest
possible maturity date" of each REMIC I Regular Interest, each REMIC II Regular
Interest and each Class of Regular Interest Certificates (or, in the case of the
Class X Certificates, each Component of such Class).
(f) Except as otherwise provided in Section 3.17(a) and subsections
(i) and (j) below, the REMIC Administrator shall pay out of its own funds any
and all routine tax administration expenses of the Trust Fund incurred with
respect to each of REMIC I, REMIC II and REMIC III (but not including any
professional fees or expenses related to audits or any administrative or
judicial
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proceedings with respect to the Trust Fund that involve the Internal Revenue
Service or state tax authorities which extraordinary expenses shall be payable
or reimbursable to the REMIC Administrator from the Trust Fund unless otherwise
provided in Section 10.01(i) or 10.01(j)).
(g) Within 30 days after the Closing Date, the REMIC Administrator
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 Trust Fund. In addition, the REMIC
Administrator shall prepare, sign and file all of the other Tax Returns in
respect of REMIC I, REMIC II and REMIC III. The expenses of preparing and filing
such returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor. The other parties hereto shall provide on a timely basis
to the REMIC Administrator or its designee such information with respect to each
of REMIC I, REMIC II and REMIC III as is in its possession and reasonably
requested by the REMIC Administrator to enable it to perform its obligations
under this Section 10.01. Without limiting the generality of the foregoing, the
Depositor, within ten days following the REMIC Administrator's request therefor,
shall provide in writing to the REMIC Administrator such information as is
reasonably requested by the REMIC Administrator for tax purposes, as to the
valuations and issue prices of the Certificates, and the REMIC Administrator's
duty to perform its reporting and other tax compliance obligations under this
Section 10.01 shall be subject to the condition that it receives from the
Depositor such information possessed by the Depositor that is necessary to
permit the REMIC Administrator to perform such obligations.
(h) The REMIC Administrator shall perform on behalf of each of REMIC
I, REMIC II and REMIC III all reporting and other tax compliance duties that are
the responsibility of each such REMIC under the Code, the REMIC Provisions or
other compliance guidance issued by the Internal Revenue Service or any state or
local taxing authority. Included among such duties, the REMIC Administrator
shall provide to: (i) any Transferor of a Residual Interest Certificate, such
information as is necessary for the application of any tax relating to the
transfer of a Residual Interest Certificate to any Person who is not a Permitted
Transferee; (ii) the Certificateholders, such information or reports as are
required by the Code or the REMIC Provisions, including, without limitation,
reports relating to interest, original issue discount and market discount or
premium (using the Prepayment Assumption as required hereunder); and (iii) the
Internal Revenue Service, the name, title, address and telephone number of the
Person who will serve as the representative of each of REMIC I, REMIC II and
REMIC III.
(i) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of each of REMIC I, REMIC II and REMIC III as a REMIC
under the REMIC Provisions (and the Trustee, the Master Servicer and the Special
Servicer shall assist the REMIC Administrator to the extent reasonably requested
by the REMIC Administrator and to the extent of information within the
Trustee's, the Master Servicer's or the Special Servicer's possession or
control). None of the REMIC Administrator, the Master Servicer, the Special
Servicer, or the Trustee shall knowingly take (or cause any of REMIC I, REMIC II
or REMIC III to take) any action or fail to take (or fail to cause to be taken)
any action that, under the REMIC Provisions, if taken or not taken, as the case
may be, could (i) endanger the status of any of REMIC I, REMIC II or REMIC III
as a REMIC, or
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(ii) except as provided in Section 3.17(a), result in the imposition of a tax
upon any of REMIC I, REMIC II or REMIC III (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) or
the result in the imposition of a tax on "net income from foreclosure property"
as defined in Section 860G(c) of the Code (any such endangerment of REMIC status
or, except as provided in Section 3.17(a), imposition of a tax, an "Adverse
REMIC Event"), unless the REMIC Administrator has obtained or received an
Opinion of Counsel (at the expense of the party requesting such action or at the
expense of the Trust Fund if the REMIC Administrator seeks to take such action
or to refrain from acting for the benefit of the Certificateholders) to the
effect that the contemplated action will not result in an Adverse REMIC Event.
None of the other parties hereto shall take any action or fail to take any
action (whether or not authorized hereunder) as to which the REMIC Administrator
has advised it in writing that the REMIC Administrator has received or obtained
an Opinion of Counsel to the effect that an Adverse REMIC Event could result
from such action or failure to act. In addition, prior to taking any action with
respect to REMIC I, REMIC II or REMIC III, or causing any of REMIC I, REMIC II
or REMIC III to take any action, that is not expressly permitted under the terms
of this Agreement, the Master Servicer and the Special Servicer shall consult
with the REMIC Administrator or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event to occur. The REMIC
Administrator 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 permitted by
this Agreement, but in no event at the cost or expense of the Trust Fund or the
Trustee. At all times as may be required by the Code, the REMIC Administrator
shall make reasonable efforts to ensure that substantially all of the assets of
REMIC I, REMIC II and REMIC III will consist of "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.
(j) If any tax is imposed on any of REMIC I, REMIC II or REMIC III,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I, REMIC II or REMIC III after the Startup Day pursuant to Section
860G(d) of the Code, and any other tax imposed by the Code or any applicable
provisions of State or Local Tax laws (other than any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the REMIC Administrator, if such tax arises out of or results from a breach by
the REMIC Administrator of any of its obligations under this Section 10.01; (ii)
the Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.01; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.01; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Section 10.01; (v) the Depositor, if such tax was imposed due to the
fact that any of the Mortgage Loans did not, at the time of their transfer to
the REMIC I, constitute a "qualified mortgage" as defined in Section 860G(a)(3)
of the Code; or (vi) the Trust Fund, excluding the portion thereof constituting
the Grantor Trust, in all other instances. Any tax permitted to be
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incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust Fund. Any such amounts payable by the Trust Fund shall be
paid by the Trustee upon the written direction of the REMIC Administrator out of
amounts on deposit in the Collection Account in reduction of the Available
Distribution Amount pursuant to Section 3.05(b).
(k) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to each of REMIC I, REMIC II and REMIC
III on a calendar year and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
REMIC I, REMIC II or REMIC III unless it shall have received an Opinion of
Counsel (at the expense of the party seeking to cause such contribution and in
no event at the expense of the Trust Fund or the Trustee) to the effect that the
inclusion of such assets in such REMIC will not cause: (i) such REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (ii)
the imposition of any tax on such REMIC under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Mortgage Loans (except
in connection with (A) the default or reasonably foreseeable material default of
a Mortgage Loan, including, but not limited to, the sale or other disposition of
a Mortgaged Property acquired by deed in lieu of foreclosure, (B) the bankruptcy
of REMIC I, REMIC II or REMIC III, (C) the termination of REMIC I, REMIC II and
REMIC III pursuant to Article IX of this Agreement, or (D) a purchase of
Mortgage Loans pursuant to or as contemplated by Article II or III of this
Agreement); (ii) the sale or disposition of any investments in the Custodial
Account, the Collection Account, the Interest Reserve Account or the REO Account
for gain; or (iii) the acquisition of any assets for REMIC I, REMIC II or REMIC
III (other than a Mortgaged Property acquired through foreclosure, deed in lieu
of foreclosure or otherwise in respect of a defaulted Mortgage Loan and other
than Permitted Investments acquired in connection with the investment of funds
in the Custodial Account, the Collection Account, the Interest Reserve Account
or the REO Account); in any event unless it has received an Opinion of Counsel
(at the expense of the party seeking to cause such sale, disposition, or
acquisition but in no event at the expense of the Trust Fund or the Trustee) to
the effect that such sale, disposition, or acquisition will not cause: (x) REMIC
I, REMIC II or REMIC III to fail to qualify as a REMIC at any time that any
Certificates are outstanding; or (y) the imposition of any tax on REMIC I, REMIC
II or REMIC III under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(n) Except as permitted by Section 3.17(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which REMIC I, REMIC II or REMIC III will receive a fee or other compensation
for services nor permit REMIC I, REMIC II or REMIC III 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.
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SECTION 10.02 Grantor Trust Administration.
(a) The REMIC Administrator shall treat the Grantor Trust, for tax
return preparation purposes, as a grantor trust under the Code and, if
necessary, under applicable state law and will file appropriate federal or state
Tax Returns for each taxable year ending on or after the last day of the
calendar year in which the Certificates are issued.
(b) The REMIC Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to the Grantor Trust (but not including any professional fees or expenses
related to audits or any administrative or judicial proceedings with respect to
the Trust Fund that involve the Internal Revenue Service or state tax
authorities which extraordinary expenses shall be payable or reimbursable to the
REMIC Administrator from the Trust Fund unless otherwise provided in Section
10.02(e) or 10.02(f)).
(c) The REMIC Administrator shall prepare, sign and file all of the
Tax Returns in respect of the Grantor Trust. The expenses of preparing and
filing such returns shall be borne by the REMIC Administrator without any right
of reimbursement therefor. The other parties hereto shall provide on a timely
basis to the REMIC Administrator or its designee such information with respect
to the Grantor Trust as is in its possession and reasonably requested by the
REMIC Administrator to enable it to perform its obligations under this Section
10.02. Without limiting the generality of the foregoing, the Depositor, within
ten days following the REMIC Administrator's request therefor, shall provide in
writing to the REMIC Administrator such information as is reasonably requested
by the REMIC Administrator for tax purposes, and the REMIC Administrator's duty
to perform its reporting and other tax compliance obligations under this Section
10.02 shall be subject to the condition that it receives from the Depositor such
information possessed by the Depositor that is necessary to permit the REMIC
Administrator to perform such obligations.
(d) The REMIC Administrator shall perform on behalf of the Grantor
Trust all reporting and other tax compliance duties that are required in respect
thereof under the Code, the Grantor Trust Provisions or other compliance
guidance issued by the Internal Revenue Service or any state or local taxing
authority.
(e) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of the Grantor Trust as a grantor trust under the Grantor
Trust Provisions (and the Trustee, the Master Servicer and the Special Servicer
shall assist the REMIC Administrator to the extent reasonably requested by the
REMIC Administrator and to the extent of information within the Trustee's, the
Master Servicer's or the Special Servicer's possession or control). None of the
REMIC Administrator, Master Servicer, the Special Servicer or the Trustee shall
knowingly take (or cause the Grantor Trust to take) any action or fail to take
(or fail to cause to be taken) any action that, under the Grantor Trust
Provisions, if taken or not taken, as the case may be, could endanger the status
of the Grantor Trust as a grantor trust under the Grantor Trust Provisions (any
such endangerment of grantor trust status, an "Adverse Grantor Trust Event"),
unless the REMIC
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Administrator has obtained or received an Opinion of Counsel (at the expense of
the party requesting such action or at the expense of the Trust Fund if the
REMIC Administrator seeks to take such action or to refrain from taking any
action for the benefit of the Certificateholders) to the effect that the
contemplated action will not result in an Adverse Grantor Trust Event. None of
the other parties hereto shall take any action or fail to take any action
(whether or not authorized hereunder) as to which the REMIC Administrator has
advised it in writing that the REMIC Administrator has received or obtained an
Opinion of Counsel to the effect that an Adverse Grantor Trust Event could
result from such action or failure to act. In addition, prior to taking any
action with respect to the Grantor Trust, or causing the Trust Fund to take any
action, that is not expressly permitted under the terms of this Agreement, the
Master Servicer and the Special Servicer shall consult with the REMIC
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse Grantor Trust Event to occur. The REMIC Administrator 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 permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund, the REMIC
Administrator or the Trustee.
(f) If any tax is imposed on the Grantor Trust, such tax, together
with all incidental costs and expenses (including, without limitation, penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the REMIC
Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this Section 10.02; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.02; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.02; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Section 10.02; or (v) the portion of the Trust Fund constituting the
Grantor Trust in all other instances.
(g) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to the Grantor Trust on a calendar year
and on an accrual basis.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be inconsistent with any other
provision herein, (iii) to add any other provisions with respect to matters or
questions arising hereunder which shall not be inconsistent with the provisions
hereof, (iv) to relax or eliminate any requirement hereunder imposed by the
REMIC Provisions if the REMIC Provisions are amended or clarified such that any
such requirement may be relaxed or eliminated, (v) as evidenced by an Opinion of
Counsel delivered to the Master Servicer, the Special Servicer and the Trustee,
either (A) to comply with any requirements imposed by the Code or any successor
or amendatory statute or any temporary or final regulation, revenue ruling,
revenue procedure or other written official announcement or interpretation
relating to federal income tax laws or any such proposed action which, if made
effective, would apply retroactively to any of the REMICs created hereunder at
least from the effective date of such amendment, or (B) to avoid the occurrence
of a prohibited transaction or to reduce the incidence of any tax that would
arise from any actions taken with respect to the operation of any such REMIC; or
(vi) as provided in Section 5.02(d)(iv), to modify, add to or eliminate any of
the provisions of Section 5.02(d)(i), (ii) or (iii); provided that such
amendment (other than any amendment for any of the specific purposes described
in clauses (v) and (vi) above) shall not adversely affect in any material
respect the interests of any Certificateholder, as evidenced by either an
Opinion of Counsel to such effect or, in the case of a Class of Certificates to
which a rating has been assigned by one or more Rating Agencies, written
confirmation from each applicable Rating Agency to the effect that such
amendment shall not result in a qualification, downgrade or withdrawal of any
rating then assigned by it to such Class of Certificates.
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto with the consent of the Holders of Certificates
entitled to at least 662/3% of the Voting Rights allocated to each of the
affected Classes 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; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans which are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in (i)
without the consent of the Holders of all Certificates of such Class, (iii)
modify the provisions of this Section 11.01 without the consent of the Holders
of all Certificates then outstanding, (iv) modify the provisions of Section 3.20
or the Servicing Standard without the consent of the Holders of all Regular
Interest Certificates then outstanding or (v) modify the specified percentage of
Voting Rights which are required to be held
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by Certificateholders to consent or not to object to any particular action
pursuant to any provision of this Agreement without the consent of the Holders
of all Certificates then outstanding. In addition, this Agreement may be amended
from time to time by the agreement of the parties hereto 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, provided that (i) each Rating Agency has confirmed in
writing that such amendment will not result in a qualification, downgrade or
withdrawal of any of the ratings then assigned by such Rating Agency to the
Certificates, (ii) 100% of the holders of each Class of non-rated Certificates,
if any, that is materially and adversely affected by such amendment have
consented thereto and (iii) the Underwriter has consented to such amendment.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01(b),
Certificates registered in the name of any party hereto or any Affiliate thereof
shall be entitled to the same Voting Rights with respect to matters described
above as they would if any other Person held such Certificates, so long as the
subject amendment does not relate to increasing its rights or reducing or
limiting its obligations hereunder as a party to this Agreement.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the party seeking such amendment) to the effect that (i) such amendment or
the exercise of any power granted to the Trustee, the Master Servicer or the
Special Servicer in accordance with such amendment will not result in the
imposition of a tax on any of REMIC I, REMIC II or REMIC III pursuant to the
REMIC Provisions, cause any of REMIC I, REMIC II or REMIC III to fail to qualify
as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust
within the meaning of the Grantor Trust Provisions at any time that any
Certificates are outstanding and (ii) such amendment complies with the
provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the Trustee
shall send a copy thereof to each Certificateholder.
(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) Each of the Master Servicer, the Special Servicer and 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 Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel
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required in connection therewith pursuant to Section 11.01(a) or (c) shall be
payable out of the Custodial Account or the Collection Account pursuant to
Section 3.05(a).
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 Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Custodial Account pursuant to Section 3.05(a)) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders; provided, however, that the Trustee shall have no obligation
or responsibility to determine whether any such recordation of this Agreement is
required.
(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.
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 entitled to at least 25% of the Voting
Rights 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
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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. 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, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said state, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to: (i) in the case of the Depositor, Structured
Asset Securities Corporation, 200 Vesey Street, New York, New York 10285,
Attention: LB Commercial Mortgage Trust, Series 1998-C4, facsimile number:
212-526-3746; (ii) in the case of the Master Servicer, First Union National
Bank, First Union Capital Markets, Charlotte Plaza, 23rd Floor, 201 South
College Street, Charlotte, North Carolina, 28288-1075, Attention: LB Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 1998-C4,
facsimile number: (704) 383-9356; (iii) in the case of the Special Servicer,
Lennar Partners, Inc., 700 N.W. 107th Avenue, Suite 400, Miami, Florida 33172,
Attention: LBCMT Series 1998-C4, facsimile number: (305) 226-7691; (iv) in the
case of the Trustee, LaSalle National Bank, 135 South LaSalle Street, Suite
1625, Chicago, Illinois 60674-4107, Attention: Asset-Backed Securities Trust
Services Group-LBCMT Series 1998-C4, facsimile number: (312) 904-2084; (v) in
the case of the Underwriter, Lehman Brothers, Inc., Three World Financial
Center, New York, New York 10285, Attention: LB Commercial Mortgage Trust,
Series 1998-C4, facsimile number: 212-526-3746; (vi) in the case of the Rating
Agencies, (A) S&P, Standard & Poor's Ratings Services, a Division of the
McGraw-Hill Companies, Inc., 25 Broadway, New York, New York 10004, Attention:
Real Ratings Group, Surveillance Manager, facsimile number: (212) 412-0597, and
(B) Moody's Investors Service, Inc., 99 Church Street, New York, New York,
Attention: CMBS-Monitoring, facsimile number (212) 553-1350; and (vii) in the
case of the Fiscal Agent, to the Trustee on behalf of the Fiscal Agent; 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
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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.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) in order to secure performance of the Depositor's
obligations hereunder and payment of the Certificates, the Depositor shall be
deemed to have granted, and does hereby grant, 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 constituting 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 any Principal Prepayments
received on or prior to the Cut-off Date), all amounts held from time to time in
the Custodial Account, the Collection Account, the Interest Reserve Account and,
if established, the REO Account and all reinvestment earnings on such amounts,
and all of the Depositor's right, title and interest in and to the proceeds of
any title, hazard or other Insurance Policies related to such Mortgage Loans,
and (ii) this Agreement shall constitute a security agreement under applicable
law. The Depositor shall file or cause to be filed, as a precautionary filing, a
Form UCC-1 substantially in the form attached as Exhibit J hereto in all
appropriate locations in the State of New York promptly following the initial
issuance of the Certificates, and the Trustee shall prepare, execute and file at
each such office, with the reasonable cooperation of the Depositor, continuation
statements with respect thereto, in each case within six months prior to the
fifth anniversary of the immediately preceding filing. The Depositor shall
cooperate in a reasonable manner with the Trustee and the Master Servicer in
preparing and filing such continuation statements. This Section 11.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the New
York UCC.
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SECTION 11.08. Streit Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
SECTION 11.09. 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. The
Underwriter shall be a third party beneficiary to this Agreement solely with
respect to its rights to receive the reports, statements and other information
to which it is entitled hereunder, to preserve its rights under Sub-Servicing
Agreements as contemplated by Section 3.22(d) and to terminate the Trust Fund
pursuant to Section 9.01. Each of the Sub-Servicers that is a party to a
Sub-Servicing Agreement on the Closing Date shall be a third party beneficiary
to obligations of a successor Master Servicer under Section 3.22(d), provided
that the sole remedy for any claim by a Sub-Servicer as a third party
beneficiary pursuant to this Section 11.09 shall be against a successor Master
Servicer solely in its corporate capacity and no Sub-Servicer shall have any
rights or claims against the Trust Fund or any party hereto (other than a
successor Master Servicer in its corporate capacity as set forth in this Section
11.09) as a result of any rights conferred on such Sub-Servicer as a third party
beneficiary pursuant to this Section 11.09. This Agreement may not be amended in
any manner that would adversely affect the rights of any such third party
beneficiary without its consent. No other person, including, without limitation,
any Mortgagor, shall be entitled to any benefit or equitable right, remedy or
claim under this Agreement.
SECTION 11.10. 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.
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SECTION 11.11. Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Fiscal Agent, the Master
Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by the Depositor pursuant to
Section 2.03;
(v) any change in the location of the Collection Account or the
Interest Reserve Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO Property.
(b) The Master Servicer shall promptly 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; and
(ii) any change in the location of the Custodial Account.
(c) The Special Servicer shall furnish each Rating Agency with
respect to a Specially Serviced Mortgage Loan such information as the Rating
Agency shall reasonably request and which the Special Servicer can reasonably
provide in accordance with applicable law.
(d) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14; and
(iii) any Officers' Certificate delivered by it to the Trustee
pursuant to Section 3.03(e) or 4.03(c).
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<PAGE>
(e) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 8.14(b) and (ii) promptly
deliver to each Rating Agency a copy of any notices given pursuant to Section
7.03(a) or Section 7.03(b).
(f) The Trustee shall promptly deliver to each Rating Agency a copy
of each of the statements and reports described in Section 4.02(a) that is
prepared by it.
(g) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
SECTION 11.12. Global Opinions.
Notwithstanding anything herein to the contrary, where any party
hereto is required or permitted to rely upon an Opinion of Counsel with respect
to any particular matter, such Opinion of Counsel need not specifically
reference such particular matter, but rather such Opinion of Counsel may address
general matters of law in respect of nonspecific circumstances which clearly
encompass the facts of such particular matter (any such Opinion of Counsel, a
"Global Opinion"); provided that no Global Opinion may be relied upon if it is
more than 12 months old or if the subject party has reason to believe that such
Global Opinion no longer expresses a correct legal opinion.
SECTION 11.13. Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
STRUCTURED ASSET SECURITIES
CORPORATION
Depositor
By: ___________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
Master Servicer
By: ___________________________________
Name:
Title:
LENNAR PARTNERS, INC.
Special Servicer
By: ___________________________________
Name:
Title:
LASALLE NATIONAL BANK
Trustee
By: ______________________________________
Name:
Title:
<PAGE>
ABN AMRO BANK N.V.
Fiscal Agent
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____day of November, 1998, before me, a notary public in and
for said State, personally appeared ______________, known to me to be a
_______________ of STRUCTURED ASSET SECURITIES CORPORATION, one of the entities
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ___________________)
) ss.:
COUNTY OF __________________)
On the ______ day of November, 1998, before me, a notary public in
and for said State, personally appeared ________________ known to me to be a
___________ of FIRST UNION NATIONAL BANK, one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ___________________)
) ss.:
COUNTY OF __________________)
On the ______ day of November, 1998, before me, a notary public in
and for said State, personally appeared ___________________________, known to me
to be a ___________ of LENNAR PARTNERS, INC., one of the entities that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ___________________)
) ss.:
COUNTY OF __________________)
On the ______ day of November, 1998, before me, a notary public in
and for said State, personally appeared _____________________ and
_____________________, known to me to be a _________________ and
_____________________, respectively, of LASALLE NATIONAL BANK, one of the
entities that executed the within instrument, and also known to me to be the
persons who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ___________________)
) ss.:
COUNTY OF __________________)
On the ______ day of November, 1998, before me, a notary public in
and for said State, personally appeared _____________________ and
_____________________, known to me to be a _________________ and
_____________________, respectively, of ABN AMRO BANK N.V., one of the entities
that executed the within instrument, and also known to me to be the persons who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_____________________________
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1-a, CLASS A-1-b AND CLASS A-2 CERTIFICATES
CLASS [A-1-a] [A-1-b] [A-2] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 1998-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
Pass-Through Rate: ___% Initial Certificate Principal
Balance of this Certificate as of
the Closing Date:
Date of Pooling and Servicing $____________
Agreement: November 1, 1998
Cut-off Date: As defined in the Class Principal Balance of all the
Pooling and Servicing Agreement Class [A-1-a] [A-1-b] [A-2]
Certificates as of the Closing Date:
$____________
Closing Date: November 24, 1998
Aggregate unpaid principal balance
First Distribution Date: of the Mortgage Pool as of the
December 15, 1998 Cut-off Date, after deducting
payments of principal due on or
Master Servicer: before such date (the "Initial Pool
First Union National Bank Balance"):
$2,025,590,706
Special Servicer:
Lennar Partners, Inc.
Trustee:
LaSalle National Bank
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. [A-1-a] [A-1-b] [A-2]-___ CUSIP No. _____________
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC.,
LASALLE NATIONAL BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 24, 1998. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF
0% (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR RESPECTIVE
ANTICIPATED REPAYMENT DATES) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $________ OF OID PER $_________ OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ______% PER ANNUM AND
THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$_______ PER $________ OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER
A CONSTANT YIELD METHOD WITH DAILY COMPOUNDING. NO REPRESENTATION IS MADE AS TO
WHETHER OR HOW THE MORTGAGE LOANS WILL PREPAY.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
A-1-2
<PAGE>
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Structured Asset Securities Corporation as depositor (the "Depositor", which
term includes any successor entity under the Agreement), First Union National
Bank as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), LaSalle National Bank as trustee (the "Trustee", which term includes
any successor entity under the Agreement) and ABN AMRO Bank N.V. as fiscal agent
(the "Fiscal Agent", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (or, in the case
of the first such distribution, at the close of business on the Closing Date)
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
pursuant to the Agreement on the applicable Distribution Date in respect of the
Class of Certificates to which this Certificate belongs. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
A-1-3
<PAGE>
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, 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 all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
The Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier
A-1-4
<PAGE>
of (i) the final payment or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in the Trust, and
(ii) the purchase by the Depositor, the Underwriter, the Master Servicer, the
Special Servicer or the Dominant Controlling Class Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, the Underwriter, the Master Servicer, the Special Servicer or the
Dominant Controlling Class Certificateholder to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 662/3% of the Voting Rights allocated to each of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. In addition, the Agreement permits the amendment thereof, in
certain circumstances, with rating confirmation of the ratings on the rated
Classes of Certificates and the consent of the Holders of the unrated Classes of
Certificates. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I, REMIC II or REMIC III as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate 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, without applying any conflicts of laws principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-1-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE NATIONAL BANK
as Trustee
By:____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1-a] [A-1-b] [A-2] Certificates referred
to in the within-mentioned Agreement.
Dated:
LASALLE NATIONAL BANK,
as Certificate Registrar
By:____________________________________
Authorized Officer
A-1-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:_______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
__________________________________) and all applicable statements and notices
should be mailed to ___________________________________________________________.
This information is provided by __________________________________,
the assignee named above, or ___________________________________________________
________, as its agent.
A-1-7
<PAGE>
EXHIBIT A-2
FORM OF CLASS X CERTIFICATE
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
Pass-Through Rate: Variable Initial Certificate Notional Amount
of this Certificate as of the
Closing Date:
Date of Pooling and Servicing $____________
Agreement: November 1, 1998
Cut-off Date: As defined in the Class Notional Amount of all the
Pooling and Servicing Agreement Class X Certificates as of the
Closing Date:
Closing Date: November 24, 1998 $____________
Aggregate unpaid principal balance
First Distribution Date: of the Mortgage Pool as of the
December 15, 1998 Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial Pool
Master Servicer: Balance"):
First Union National Bank $2,025,590,706
Special Servicer:
Lennar Partners, Inc.
Trustee:
LaSalle National Bank
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. X-___ CUSIP No.___________________
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC.,
LASALLE NATIONAL BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 24, 1998. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF
0% (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR RESPECTIVE
ANTICIPATED REPAYMENT DATES) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $________ OF OID PER $_________ OF INITIAL
CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS ______% PER ANNUM AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$_______ PER $________ OF INITIAL CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER A
CONSTANT YIELD METHOD WITH DAILY COMPOUNDING. NO REPRESENTATION IS MADE AS TO
WHETHER OR HOW THE MORTGAGE LOANS WILL PREPAY.]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT
A-2-2
<PAGE>
OF THIS CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional principal amount of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Structured Asset Securities Corporation as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
First Union National Bank as master servicer (the "Master Servicer", which term
includes any successor entity under the Agreement), Lennar Partners, Inc. as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), LaSalle National Bank as trustee (the "Trustee",
which term includes any successor entity under the Agreement) and ABN AMRO Bank
N.V. as fiscal agent (the "Fiscal Agent", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (or, in the case
of the first such distribution, at the close of business on the Closing Date)
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
pursuant to the Agreement on the applicable Distribution Date in respect of the
Class of Certificates to which this Certificate belongs. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in
A-2-3
<PAGE>
certain cases, prior to, distributions to Certificateholders, such purposes
including the reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans and the payment of interest on such advances and
expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, 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 all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
The Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, the Underwriter, the Master
Servicer, the Special Servicer or the Dominant Controlling Class
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust. The Agreement
permits, but does not require, the Depositor, the Underwriter, the Master
Servicer, the Special Servicer or the Dominant Controlling Class
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right
A-2-4
<PAGE>
to purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 662/3% of the Voting Rights allocated to each of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. In addition, the Agreement permits the amendment thereof, in
certain circumstances, with rating confirmation of the ratings on the rated
Classes of Certificates and the consent of the Holders of the unrated Classes of
Certificates. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I, REMIC II or REMIC III as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate 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, without applying any conflicts of laws principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-2-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE NATIONAL BANK
as Trustee
By:____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated:
LASALLE NATIONAL BANK,
as Certificate Registrar
By:____________________________________
Authorized Officer
A-2-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:_______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
__________________________________) and all applicable statements and notices
should be mailed to ___________________________________________________________.
This information is provided by __________________________________,
the assignee named above, or ___________________________________________________
________, as its agent.
A-2-7
<PAGE>
EXHIBIT A-3
FORM OF CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES
CLASS [B][C][D][E] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1998-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
Pass-Through Rate: ____% Initial Certificate Principal
Balance of this Certificate as of
the Closing Date:
Date of Pooling and Servicing $_______________
Agreement: November 1, 1998
Cut-off Date: As defined in the Class Principal Balance of all the
Pooling and Servicing Agreement Class [B][C][D][E] Certificates as
of the Closing Date:
$____________
Closing Date: November 24, 1998
Aggregate unpaid principal balance
First Distribution Date: of the Mortgage Pool as of the
December 15, 1998 Cut-off Date, after deducting
payments of principal due on or
before such date (the "Initial Pool
Master Servicer: Balance"):
First Union National Bank $2,025,590,706
Special Servicer:
Lennar Partners, Inc.
Trustee:
LaSalle National Bank
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. [B][C][D][E]-___ CUSIP No. _____________
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF 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.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC.,
LASALLE NATIONAL BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 24, 1998. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF
0%
A-3-2
<PAGE>
(EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR RESPECTIVE
ANTICIPATED REPAYMENT DATES) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $________ OF OID PER $_________ OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ______% PER ANNUM AND
THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$_______ PER $________ OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER
A CONSTANT YIELD METHOD WITH DAILY COMPOUNDING. NO REPRESENTATION IS MADE AS TO
WHETHER OR HOW THE MORTGAGE LOANS WILL PREPAY.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Structured Asset Securities Corporation as depositor (the "Depositor", which
term includes any successor entity under the Agreement), First Union National
Bank as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), LaSalle National Bank as trustee (the "Trustee", which term includes
any successor entity under the Agreement) and ABN AMRO Bank N.V. as fiscal agent
(the "Fiscal Agent", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (or, in the case
of the first such distribution, at the close of business on the Closing Date)
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
pursuant to the Agreement on the applicable Distribution Date in respect of the
Class of Certificates to which this Certificate belongs. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to the Record Date
for such distribution (which wiring instructions may
A-3-3
<PAGE>
be in the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA
A-3-4
<PAGE>
or the Code (each, a "Plan"), or (B) any Person who is directly or indirectly
purchasing this Certificate or such interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in connection with the initial issuance of the
Certificates or any transfer of this Certificate by the Depositor, Lehman
Brothers Inc. (the "Underwriter") or any of their respective Affiliates or any
transfer of this Certificate to a successor Depository or to the applicable
Certificate Owner in accordance with Section 5.03 of the Agreement, the
Certificate Registrar shall refuse to register any transfer of this Certificate
unless it has received from the prospective Transferee either: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
to the effect that the purchase and holding of this Certificate by such
prospective Transferee is exempt from the prohibited transaction provisions of
Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code. If any Transferee of this
Certificate or any interest herein does not, in connection with the subject
transfer, deliver to the Certificate Registrar a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt form the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transaction Class Exemption 95-60.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, 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 all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
The Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier
A-3-5
<PAGE>
of (i) the final payment or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in the Trust, and
(ii) the purchase by the Depositor, the Underwriter, the Master Servicer, the
Special Servicer or the Dominant Controlling Class Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust. The Agreement permits, but does not require,
the Depositor, the Underwriter, the Master Servicer, the Special Servicer or the
Dominant Controlling Class Certificateholder to purchase from the Trust all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 662/3% of the Voting Rights allocated to each of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. In addition, the Agreement permits the amendment thereof, in
certain circumstances, with rating confirmation of the ratings on the rated
Classes of Certificates and the consent of the Holders of the unrated Classes of
Certificates. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I, REMIC II or REMIC III as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate 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, without applying any conflicts of laws principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-3-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE NATIONAL BANK,
as Trustee
By:____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B][C][D][E] Certificates referred to in
the within-mentioned Agreement.
Dated:
LASALLE NATIONAL BANK,
as Certificate Registrar
By:____________________________________
Authorized Officer
A-3-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:_______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
__________________________________) and all applicable statements and notices
should be mailed to ___________________________________________________________.
This information is provided by __________________________________,
the assignee named above, or ___________________________________________________
________, as its agent.
A-3-8
<PAGE>
EXHIBIT A-4
FORM OF CLASS F, CLASS G, CLASS H, CLASS J,
CLASS K, CLASS L, CLASS M AND CLASS N CERTIFICATES
CLASS [F] [G] [H] [J] [K] [L] [M] [N] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1998-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
Pass-Through Rate: ____% Initial Certificate Principal
Balance of this Certificate as of
the Closing Date:
Date of Pooling and Servicing $____________
Agreement: November 1, 1998
Cut-off Date: As defined in the Class Principal Balance of all the
Pooling and Servicing Agreement Class [F] [G] [H] [J] [K] [L] [M]
[N] Certificates as of the Closing
Date:
Closing Date: November 24, 1998 $____________
First Distribution Date: Aggregate unpaid principal balance
December 15, 1998 of the Mortgage Pool as of the
Cut-off Date, after deducting
Master Servicer: payments of principal due on or
First Union National Bank before such date (the "Initial Pool
Balance"):
Special Servicer: $2,025,590,706
Lennar Partners, Inc.
Trustee:
LaSalle National Bank
Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. [F][G][H][J][K]
[L][M][N]-___ CUSIP No. ____________
<PAGE>
[FOR CLASS F AND CLASS G CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF 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 HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC.,
LASALLE NATIONAL BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A-4-2
<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS NOVEMBER 24, 1998. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF
0% (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON THEIR RESPECTIVE
ANTICIPATED REPAYMENT DATES) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS
BEEN ISSUED WITH NO MORE THAN $__________ OF OID PER $__________ OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ____% PER ANNUM AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____
PER $_______ OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER A CONSTANT
YIELD METHOD WITH DAILY COMPOUNDING. NO REPRESENTATION IS MADE AS TO WHETHER OR
HOW THE MORTGAGE LOANS WILL PREPAY.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that ___________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Structured Asset Securities Corporation as depositor (the "Depositor", which
term includes any successor entity under the Agreement), First Union National
Bank as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), LaSalle National Bank as trustee (the "Trustee", which term includes
any successor entity under the Agreement) and ABN AMRO Bank N.V. as fiscal agent
(the "Fiscal Agent", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
A-4-3
<PAGE>
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (or, in the case
of the first such distribution, at the close of business on the Closing Date)
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
pursuant to the Agreement on the applicable Distribution Date in respect of the
Class of Certificates to which this Certificate belongs. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate) will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice. Also notwithstanding the foregoing, any distribution that may be made
with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
A-4-4
<PAGE>
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor, Lehman Brothers
Inc. (the "Underwriter") or any of their respective Affiliates or, if this
Certificate constitutes a Book-Entry Certificate, a transfer of this Certificate
to a successor Depository or to the applicable Certificate Owner in accordance
with Section 5.03 of the Agreement), then the Certificate Registrar shall refuse
to register such transfer unless it receives (and, upon receipt, may
conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
F-1 to the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit F-2A to the
Agreement or as Exhibit F-2B to the Agreement; or (ii) an Opinion of Counsel
satisfactory to the Trustee to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Fiscal Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based. If any Transferee of this Certificate
does not, in connection with the subject transfer, deliver to the Certificate
Registrar one of the certifications described in clause (i) of the preceding
sentence or the Opinion of Counsel described in clause (ii) of the preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that all the certifications set forth in either Exhibit F-2A or Exhibit F-2B
attached to the Agreement are, with respect to the subject transfer, true and
correct. If this Certificate constitutes a Book-Entry Certificate and a transfer
of any interest herein is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of any interest herein by the Depositor, the Underwriter or any of
their respective Affiliates), then the Certificate Owner desiring to effect such
transfer shall be required to obtain either (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit F-2C to the Agreement or as Exhibit F-2D to the Agreement, or (ii) an
Opinion of Counsel to the effect that such transfer may be made without
registration under the Securities Act. If this Certificate constitutes a
Book-Entry Certificate and any Transferee of an interest herein does not, in
connection with the subject transfer, deliver to the Transferor the Opinion of
Counsel or one of the certifications described in the preceding sentence, then
such Transferee shall be deemed to have represented and warranted that all the
certifications set forth in either Exhibit F-2C or Exhibit F-2D attached to the
Agreement are, with respect to the subject transfer, true and correct. None of
the Depositor, the Trustee or the Certificate Registrar is obligated to register
or qualify the Class of Certificates to which this
A-4-5
<PAGE>
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
transfer of this Certificate or any interest herein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer sale, pledge or other disposition of this Certificate or any interest
herein shall, and does hereby agree to, indemnify the Depositor, the
Underwriter, the Trustee, the Fiscal Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar and their respective Affiliates against any
liability that may result if such transfer, sale, pledge or other disposition is
not exempt from the registration and/or qualification requirements of the
Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in connection with the initial issuance of the
Certificates or any transfer of this Certificate or any interest herein by the
Depositor, the Underwriter or any of their respective Affiliates or, if this
Certificate constitutes a Book-Entry Certificate, any transfer of this
Certificate to a successor Depository or to the applicable Certificate Owner in
accordance with Section 5.03 of the Agreement, the Certificate Registrar shall
refuse to register the transfer of this Certificate unless it has received from
the prospective Transferee, and, if this Certificate constitutes a Book-Entry
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, either: (i) a certification
to the effect that such prospective Transferee is not a Plan and is not directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate or
such interest herein by such prospective Transferee is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section 4975 of
the Code under Sections I and III of Prohibited Transaction Class Exemption
95-60; or (iii) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee or such
Certificate Owner, as the case may be, that such transfer will not result in a
violation of Section 406 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code. If any Transferee of
this Certificate or any interest herein does not, in connection with the subject
transfer, deliver to the Certificate Registrar (if this Certificate constitutes
a Definitive Certificate) or the Transferor (if this Certificate constitutes a
Book-Entry Certificate) a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee shall be deemed to have represented
and warranted that either: (i) such Transferee is not a Plan and is not directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60.
A-4-6
<PAGE>
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[For Class F and Class G Certificates only: Notwithstanding the
foregoing, for so long as this Certificate is registered in the name of Cede &
Co. or in such other name as is requested by an authorized representative of
DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.]
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, 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 all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
The Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, the Underwriter, the Master
Servicer, the Special Servicer or the Dominant Controlling Class
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust. The Agreement
permits, but does not require, the Depositor, the Underwriter, the Master
Servicer, the Special Servicer or the Dominant Controlling Class
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 662/3% of the Voting Rights allocated to each of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. In addition, the Agreement permits the amendment thereof, in
certain circumstances, with rating confirmation of the ratings on the rated
Classes of Certificates and the consent of the Holders of the unrated Classes of
Certificates. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I, REMIC II or REMIC III as a REMIC, without the consent of the Holders of any
of the Certificates.
A-4-7
<PAGE>
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate 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, without applying any conflicts of laws principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-4-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE NATIONAL BANK,
as Trustee
By:____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [F] [G] [H] [J] [K] [L] [M] [N]
Certificates referred to in the within-mentioned Agreement.
Dated:
LASALLE NATIONAL BANK,
as Certificate Registrar
By:____________________________________
Authorized Officer
A-4-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:_______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
__________________________________) and all applicable statements and notices
should be mailed to ___________________________________________________________.
This information is provided by __________________________________,
the assignee named above, or ___________________________________________________
________, as its agent.
A-4-10
<PAGE>
EXHIBIT A-5
FORM OF CLASS R-I, CLASS R-II AND CLASS R-III CERTIFICATES
CLASS [R-I][R-II][R-III] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1998-C4
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: November 1, 1998 Certificate in the related Class: ___%
Cut-off Date: As defined in the
Pooling and Servicing Agreement
Aggregate unpaid principal balance
Closing Date: November 24, 1998 of the Mortgage Pool as of the
Cut-off Date, after deducting
First Distribution Date: payments of principal due on or
December 15, 1998 before such date (the "Initial Pool
Balance"): $2,025,590,706
Master Servicer:
First Union National Bank
Special Servicer:
Lennar Partners, Inc.
Fiscal Agent:
ABN AMRO Bank N.V.
Trustee:
LaSalle National Bank
Certificate No. [R-I][R-II][R-III]- __ CUSIP No. ___________
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC.,
LASALLE NATIONAL BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
A-5-2
<PAGE>
This certifies that ____________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (as specified above) in
that certain beneficial ownership interest in the Trust evidenced by all the
Certificates of the same Class as this Certificate. The Trust was created and
the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among Structured Asset Securities
Corporation as depositor (the "Depositor", which term includes any successor
entity under the Agreement), First Union National Bank as master servicer (the
"Master Servicer", which term includes any successor entity under the
Agreement), Lennar Partners, Inc. as special servicer (the "Special Servicer",
which term includes any successor entity under the Agreement), LaSalle National
Bank as trustee (the "Trustee", which term includes any successor entity under
the Agreement) and ABN AMRO Bank N.V. as fiscal agent (the "Fiscal Agent", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing
upon the first Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (or, in the
case of the first such distribution, at the close of business on the Closing
Date) (the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
pursuant to the Agreement on the applicable Distribution Date in respect of the
Class of Certificates to which this Certificate belongs. All distributions made
under the Agreement in respect of this Certificate will be made by the Trustee
by wire transfer in immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with written
wiring instructions no less than five (5) Business Days prior to the Record Date
for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Account, the Collection Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
A-5-3
<PAGE>
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of this Certificate by the Depositor, Lehman Brothers
Inc. (the "Underwriter") or any of their respective Affiliates), then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A to the Agreement or as Exhibit F-2B to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Trustee to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject transfer, true and correct. None of the Depositor, the
Trustee or the Certificate Registrar is obligated to register or qualify the
Class of Certificates to which this Certificate belongs, under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of this Certificate or any interest
herein without registration or qualification. Any Certificateholder desiring to
effect a transfer sale, pledge or other disposition of this Certificate or any
interest herein shall, and does hereby agree to, indemnify the Depositor, the
Underwriter, the Trustee, the Fiscal Agent, the Master Servicer, the Special
Servicer, the Certificate Registrar and their respective Affiliates against any
liability that may result if such transfer, sale, pledge or other disposition is
not exempt from the registration and/or
A-5-4
<PAGE>
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 of ERISA or Section 4975
of the Code or would result in the imposition of an excise tax under Section
4975 of the Code. Except in connection with the initial issuance of the
Certificates or any transfer of this Certificate or any interest herein by the
Depositor, the Underwriter or any of their respective Affiliates, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (iii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code. If any Transferee of this Certificate or any interest
herein does not, in connection with the subject transfer, deliver to the
Certificate Registrar a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee shall be deemed to have represented
and warranted that either: (i) such Transferee is not a Plan and is not directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt form the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Trustee
and the REMIC Administrator of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form
A-5-5
<PAGE>
attached as Exhibit H-1 to the Agreement (a "Transfer Affidavit and Agreement")
from the proposed Transferee, representing and warranting, among other things,
that such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the REMIC
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Trustee and the REMIC Administrator the following: (a) written notification from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to withdraw,
qualify or downgrade its then-current rating of any Class of Certificates; and
(b) an opinion of counsel, in form and substance satisfactory to the Trustee and
the REMIC Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not (i) cause REMIC I, REMIC II or REMIC III
to (A) cease to qualify as a REMIC or (B) be subject to an entity-level tax
caused by the Transfer of a Residual Interest Certificate to a Person which is
not a Permitted Transferee, or (ii) cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the Transfer of a
Residual Interest Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (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, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by such governmental unit), (ii) a foreign government,
an international organization, or any agency or instrumentality of either 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
A-5-6
<PAGE>
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 of the Code and (v) any other Person so
designated by the REMIC Administrator based upon an opinion of counsel that the
holding of an Ownership Interest in a Residual Interest Certificate by such
Person may cause the Trust 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 Interest 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.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income from sources without the United States is includable in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise supervision over
the administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, 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 all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
The Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust, and (ii) the purchase by the Depositor, the Underwriter, the Master
Servicer, the Special Servicer or the Dominant Controlling Class
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust. The Agreement
permits, but does not require, the Depositor, the Underwriter, the Master
Servicer, the Special Servicer or the Dominant Controlling Class
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
A-5-7
<PAGE>
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to each of the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. In addition, the Agreement permits the amendment thereof, in
certain circumstances, with rating confirmation of the ratings on the rated
Classes of Certificates and the consent of the Holders of the unrated Classes of
Certificates. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I, REMIC II or REMIC III as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate 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, without applying any conflicts of laws principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-5-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE NATIONAL BANK,
as Trustee
By:____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] [R-III] Certificates referred
to in the within-mentioned Agreement.
Dated:
LASALLE NATIONAL BANK,
as Certificate Registrar
By:____________________________________
Authorized Officer
A-5-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:_______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
__________________________________) and all applicable statements and notices
should be mailed to ___________________________________________________________.
This information is provided by __________________________________,
the assignee named above, or ___________________________________________________
________, as its agent.
A-5-10
<PAGE>
SCHEDULE B
MORTGAGE LOAN SCHEDULE
<PAGE>
Lehman Brothers Commercial Mortgage Trust 98 - C4 Annex A-2
<TABLE>
<CAPTION>
Original Remaining
Interest-Only Interest-Only
Control Period Period Amortization Cut-off Date Monthly
No. Property Name (months) (months) Type Balance ($) P&I ($)
=============================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
1 TRT Holdings ARD $249,347,368 $1,649,167
2 Mills ARD 145,000,000 940,467
3 Arden II 57 53 ARD 111,200,000 621,034
4 Fresno 35 32 ARD 69,000,000 437,035
5 Bayside Balloon 62,936,317 374,483
6 Inland 120 119 ARD 54,600,000 293,399
7 Montgomery Mall ARD 47,643,694 Step*
8 Mansards Apartment Community Balloon 45,871,866 303,264
9 Best Western President Hotel Balloon 30,818,758 236,868
10 Hundred Oaks Shopping Center Balloon 27,481,479 178,364
11 Sterling Apartments Balloon 22,984,600 149,483
12 Warwick Hotel Balloon 18,480,470 129,929
13 Avion at Sunrise Mountain Apartments Balloon 18,073,694 120,298
14 Park at Memorial Apartments Balloon 17,732,659 115,191
15 Lee Farm Corporate Park Balloon 17,689,266 118,950
16 Rodin Place ARD 17,510,145 120,391
17 MacArthur Properties2 Balloon 17,225,889 116,508
18 University Place Balloon 15,150,000 107,491
19 Milburn NYC Balloon 15,000,000 108,421
21 Savannah Square Balloon 14,138,000 95,739
22 Winston Salem Industrial Balloon 13,963,957 95,030
23 Covington Portfolio Balloon 13,891,086 92,704
24 Glen Hollow Apartments Balloon 13,679,553 90,045
25 Holiday Office Park Balloon 12,342,671 83,580
26 Gateway Business Center Balloon 11,968,591 80,968
27 Motorola Balloon 11,492,142 74,207
28 Ellis Building Balloon 11,074,203 77,746
29 Super K-Mart Balloon 10,566,533 76,823
30 Hospital Professional Bldg II Balloon 10,384,441 68,286
31 Garden Ridge - Stockbridge Balloon 10,377,575 89,731
32 Jefferson Square Balloon 10,178,868 67,998
33 Wellington Farms Apartments Balloon 9,794,148 66,190
34 Arbor Ridge Apartments Balloon 9,749,066 64,280
35 L'Atriums on the Creek Balloon 9,286,153 61,188
36 Country Oaks Apartments Balloon 9,240,421 65,495
37 Garden Ridge Balloon 8,587,890 57,911
38 Riverwalk Plaza Balloon 8,531,461 56,557
39 Pinnacle Center Balloon 8,471,798 60,133
40 Yaohan Plaza Balloon 8,224,477 57,911
41 Fullerton University Shopping Center Balloon 8,193,399 49,745
42 Presidential Estates Apartments Balloon 8,038,072 53,071
43 5 La-Z-Boy Retail Locations Balloon 7,991,787 56,849
44 Promenade Apartments Balloon 7,738,378 50,834
45 Miramonte Apartments Balloon 7,644,893 49,770
46 Ashton Meadows Apartments Balloon 7,538,678 49,522
47 Sullivan Street Balloon 7,481,918 47,011
48 Market at Cedar Hill Shopping Center Balloon 7,366,676 55,097
49 Grant Village Apartments Balloon 7,345,035 47,623
50 11 East Adams Balloon 7,163,405 50,427
51 Southgate Towers Apartments Balloon 6,995,368 45,681
52 Chesterfield Meadows Shopping Center Balloon 6,890,520 46,930
53 Northgate Shopping Center Balloon 6,842,598 47,631
54 45 Executive Drive Balloon 6,721,157 46,059
55 Cipriano Square Balloon 6,715,501 43,675
56 Cineplex Multiplex Fully Amortizing 6,585,686 50,199
57 Black & Decker Balloon 6,553,178 46,365
58 Staten Island Hotel Balloon 6,485,303 46,148
59 Cloverleaf Shopping Center Balloon 6,283,510 42,508
60 Deer Park Apartments Balloon 6,100,295 43,960
61 Kmart Town Center Balloon 6,000,000 38,876
62 Kash and Karry - Tampa Balloon 5,997,685 Step*
63 River Place Balloon 5,979,956 42,368
64 Security Public Storage Balloon 5,886,611 41,813
65 Newcastle Motel Balloon 5,769,717 42,978
<CAPTION>
Original
Balloon/ Amortization
Control ARD Mortgage Term
No. Property Name Balance ($) ARD Maturity Rate (%) (months)
==========================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
1 TRT Holdings $195,225,103 9/1/08 9/1/23 6.250 300
2 Mills 125,623,449 12/1/08 12/1/28 6.750 360
3 Arden II 101,284,797 4/16/08 4/16/28 6.610 300
4 Fresno 62,890,459 8/10/08 8/10/31 6.520 360
5 Bayside 53,186,796 11/1/08 5.920 360
6 Inland 54,600,000 10/1/08 10/1/33 6.360 0
7 Montgomery Mall 43,790,880 8/1/05 8/1/28 6.790 360
8 Mansards Apartment Community 42,277,571 7/1/05 6.910 360
9 Best Western President Hotel 25,430,657 5/1/08 7.875 294
10 Hundred Oaks Shopping Center 23,825,825 10/1/08 6.750 360
11 Sterling Apartments 19,937,901 10/1/08 6.770 360
12 Warwick Hotel 14,768,276 10/1/08 6.930 300
13 Avion at Sunrise Mountain Apartments 15,781,492 9/1/08 6.990 360
14 Park at Memorial Apartments 15,385,526 9/1/08 6.750 360
15 Lee Farm Corporate Park 16,785,415 10/1/03 7.100 360
16 Rodin Place 15,465,930 1/1/08 1/1/28 7.250 352
17 MacArthur Properties2 15,103,797 9/1/08 7.150 360
18 University Place 13,434,112 11/1/08 7.650 360
19 Milburn NYC 12,091,418 11/1/08 7.250 300
21 Savannah Square 12,415,097 7/1/08 7.150 360
22 Winston Salem Industrial 12,277,831 7/1/08 7.200 360
23 Covington Portfolio 12,145,114 8/1/08 7.010 360
24 Glen Hollow Apartments 11,910,103 9/1/08 6.880 360
25 Holiday Office Park 10,820,361 10/1/08 7.170 360
26 Gateway Business Center 10,507,386 7/1/08 7.140 360
27 Motorola 10,529,258 10/1/05 6.700 360
28 Ellis Building 8,851,490 9/1/08 6.900 300
29 Super K-Mart 6,805,935 8/1/13 7.280 300
30 Hospital Professional Bldg II 9,550,159 9/1/05 6.870 360
31 Garden Ridge - Stockbridge 3,883,837 9/1/16 8.940 267
32 Jefferson Square 9,664,093 8/1/03 7.020 360
33 Wellington Farms Apartments 9,043,225 10/1/05 7.150 360
34 Arbor Ridge Apartments 8,497,022 8/1/08 6.890 360
35 L'Atriums on the Creek 8,543,028 9/1/05 6.890 360
36 Country Oaks Apartments 7,404,943 10/1/08 7.020 300
37 Garden Ridge 7,524,112 9/1/08 7.120 360
38 Riverwalk Plaza 7,441,645 9/1/08 6.950 360
39 Pinnacle Center 5,430,991 5/1/18 7.613 357
40 Yaohan Plaza 7,297,346 6/1/08 7.540 360
41 Fullerton University Shopping Center 7,681,880 10/1/03 6.110 360
42 Presidential Estates Apartments 7,003,899 9/1/08 6.910 360
43 5 La-Z-Boy Retail Locations 6,412,247 10/1/08 7.060 300
44 Promenade Apartments 6,733,848 9/1/08 6.860 360
45 Miramonte Apartments 6,633,322 10/1/08 6.780 360
46 Ashton Meadows Apartments 6,560,071 9/1/08 6.860 360
47 Sullivan Street 6,438,960 8/1/08 6.420 360
48 Market at Cedar Hill Shopping Center 6,627,203 8/1/07 8.100 349
49 Grant Village Apartments 6,366,259 10/1/08 6.740 360
50 11 East Adams 5,730,951 9/1/08 6.930 300
51 Southgate Towers Apartments 6,074,644 10/1/08 6.810 360
52 Chesterfield Meadows Shopping Center 4,291,614 9/1/18 7.220 360
53 Northgate Shopping Center 5,449,334 10/1/08 6.820 300
54 45 Executive Drive 5,910,393 10/1/08 7.290 360
55 Cipriano Square 5,825,334 10/1/08 6.770 360
56 Cineplex Multiplex NAP 9/1/23 7.830 300
57 Black & Decker 5,248,231 10/1/08 7.000 300
58 Staten Island Hotel 5,207,642 9/1/08 7.050 300
59 Cloverleaf Shopping Center 5,516,377 7/1/08 7.140 360
60 Deer Park Apartments 3,908,694 8/1/13 7.180 300
61 Kmart Town Center 5,196,248 11/1/08 6.740 360
62 Kash and Karry - Tampa 1,997,999 9/1/18 6.610 278
63 River Place 5,251,755 8/1/05 6.990 300
64 Security Public Storage 4,724,000 9/1/08 7.030 300
65 Newcastle Motel 4,702,647 10/1/08 7.580 300
<CAPTION>
Remaining Scheduled
term Maturity
to ARD Remaining Cut-off Cut-off or ARD
Control Seasoning or Maturity Lockout Date Date Date Loan
No. Property Name (months) (months) Months DSCR (x) LTV (%) LTV (%) Group
====================================================================================================================================
<C> <S> <C> <C> <C> <C> <C> <C> <C>
1 TRT Holdings 2 118 25 2.34 49.9 39.1 1
2 Mills 0 120 23 1.73 58.0 50.2 1
3 Arden II 4 114 25 2.35 47.3 43.1 1
4 Fresno 3 117 24 1.74 60.7 55.3 1
5 Bayside 1 120 24 1.80 61.7 52.2 1
6 Inland 1 119 24 2.74 51.5 51.5 1
7 Montgomery Mall 3 81 25 1.48 67.1 61.7 1
8 Mansards Apartment Community 4 80 44 1.35 78.5 72.3 2
9 Best Western President Hotel 0 114 24 1.47 66.3 54.7 1
10 Hundred Oaks Shopping Center 1 119 47 1.92 57.3 49.6 1
11 Sterling Apartments 1 119 47 1.57 55.8 48.4 1
12 Warwick Hotel 1 119 47 1.57 55.2 44.1 1
13 Avion at Sunrise Mountain Apartments 2 118 58 1.27 78.2 68.3 2
14 Park at Memorial Apartments 2 118 46 1.33 79.9 69.3 2
15 Lee Farm Corporate Park 1 59 25 1.34 70.8 67.1 1
16 Rodin Place 2 110 37 1.34 76.8 67.8 1
17 MacArthur Properties2 2 118 46 1.30 67.0 58.8 1
18 University Place 0 120 48 1.38 73.9 65.5 1
19 Milburn NYC 0 120 48 1.46 68.2 55.0 1
21 Savannah Square 4 116 44 1.37 74.8 65.7 1
22 Winston Salem Industrial 4 116 32 1.37 77.8 68.4 1
23 Covington Portfolio 3 117 45 1.32 79.2 69.2 1
24 Glen Hollow Apartments 2 118 46 1.40 79.5 69.2 2
25 Holiday Office Park 1 119 47 1.31 75.7 66.4 1
26 Gateway Business Center 4 116 44 1.34 73.7 64.7 1
27 Motorola 1 83 47 1.27 74.1 67.9 1
28 Ellis Building 2 118 46 1.30 75.3 60.2 1
29 Super K-Mart 3 177 45 1.26 72.9 46.9 1
30 Hospital Professional Bldg II 2 82 46 1.38 71.6 65.9 1
31 Garden Ridge - Stockbridge 0 214 48 NAP NAP NAP 1
32 Jefferson Square 3 57 25 1.46 74.8 71.1 1
33 Wellington Farms Apartments 1 83 47 1.20 79.0 72.9 2
34 Arbor Ridge Apartments 3 117 45 1.28 79.3 69.1 2
35 L'Atriums on the Creek 2 82 34 1.40 79.0 72.7 2
36 Country Oaks Apartments 1 119 47 1.26 79.7 63.8 2
37 Garden Ridge 2 118 46 1.34 77.4 67.8 1
38 Riverwalk Plaza 2 118 46 1.32 79.9 69.7 1
39 Pinnacle Center 3 234 120 1.52 73.7 47.2 1
40 Yaohan Plaza 5 115 43 1.35 74.8 66.3 1
41 Fullerton University Shopping Center 1 59 35 1.40 74.5 69.8 1
42 Presidential Estates Apartments 2 118 46 1.31 79.6 69.3 2
43 5 La-Z-Boy Retail Locations 1 119 47 1.25 75.8 60.8 1
44 Promenade Apartments 2 118 34 1.33 79.8 69.4 2
45 Miramonte Apartments 1 119 47 1.26 79.2 68.7 1
46 Ashton Meadows Apartments 2 118 34 1.26 78.9 68.7 2
47 Sullivan Street 3 117 45 2.08 52.0 44.7 1
48 Market at Cedar Hill Shopping Center 3 105 33 1.27 72.6 65.3 1
49 Grant Village Apartments 1 119 47 1.60 67.5 58.5 2
50 11 East Adams 2 118 46 1.45 65.7 52.6 1
51 Southgate Towers Apartments 1 119 47 1.65 70.7 61.4 2
52 Chesterfield Meadows Shopping Center 2 238 46 1.35 79.2 49.3 1
53 Northgate Shopping Center 1 119 47 1.34 76.9 61.2 1
54 45 Executive Drive 1 119 47 1.34 73.1 64.2 1
55 Cipriano Square 1 119 47 1.46 79.9 69.3 1
56 Cineplex Multiplex 2 298 142 1.41 62.1 NAP 1
57 Black & Decker 1 119 47 1.31 74.9 60.0 1
58 Staten Island Hotel 2 118 46 1.73 64.9 52.1 1
59 Cloverleaf Shopping Center 4 116 44 1.37 74.8 65.7 1
60 Deer Park Apartments 3 177 81 1.27 79.7 51.1 2
61 Kmart Town Center 0 120 48 1.45 76.9 66.6 1
62 Kash and Karry - Tampa 1 238 47 NAP NAP NAP 1
63 River Place 3 81 45 1.49 63.6 55.9 1
64 Security Public Storage 2 118 46 1.50 69.3 55.6 1
65 Newcastle Motel 1 119 47 1.45 74.9 61.1 1
</TABLE>
Annex A-2 - 1
<PAGE>
<TABLE>
<CAPTION>
Original Remaining
Interest-Only Interest-Only
Control Period Period Amortization Cut-off Date Monthly
No. Property Name (months) (months) Type Balance ($) P&I ($)
=============================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
66 Aventura Medical Plaza Balloon 5,711,693 38,986
67 Southgate Village Shopping Center Balloon 5,693,841 39,634
68 Brewery District Office Balloon 5,692,246 38,923
69 Kent Business Center Balloon 5,636,555 37,065
70 Villa Maria Balloon 5,600,000 37,257
71 Kash and Karry - Hudson Balloon 5,597,347 Step*
72 Forest Hill Shopping Center Balloon 5,591,979 37,445
73 Wyntree Apartments Balloon 5,587,721 36,508
74 Keebler Krossing Shopping Center Balloon 5,542,204 37,410
75 Havasu North Shopping Center Balloon 5,516,228 35,619
76 Valencia Entertainment Center Balloon 5,492,256 37,036
77 444 Saw Mill River Road Balloon 5,488,665 36,740
78 Twin Lakes Apartments Balloon 5,388,696 35,854
79 Little Prairie Shopping Center ARD 5,361,172 35,420
80 JJ Court Apartments Balloon 5,355,867 33,072
81 Citadel Balloon 5,191,745 33,279
82 Roanoke West Apartments Balloon 5,159,541 36,212
83 Foothills Center Balloon 5,147,214 35,869
84 Ardsley Plaza Balloon 5,128,991 35,025
85 Wyngrove Apartments Balloon 4,989,037 32,596
86 450 Village Company Balloon 4,987,945 31,341
87 Lone Mountain Plaza Shopping Center Balloon 4,986,441 33,299
88 Kmart Store No. 4219 - Ashwaubenon, WI Fully Amortizing 4,985,461 Step*
89 Holiday Inn Express - Minnetonka Balloon 4,939,533 36,291
90 335-355 Franklin Street Balloon 4,939,353 32,518
91 Fountain Park Apartments Balloon 4,797,026 32,031
92 Brittany Court Apartments Balloon 4,792,802 31,484
93 Sully Square Shopping Center Balloon 4,596,530 28,623
94 Capitol View Office Building Balloon 4,590,912 31,224
95 The Oaks Apartments Balloon 4,581,215 30,944
96 Hampshire Place Balloon 4,489,561 31,547
97 Shops at Butler Creek ARD 4,469,945 31,681
98 Mosside Village Balloon 4,391,003 29,480
99 River North Concourse Balloon 4,388,859 30,046
100 Quality Suites Balloon 4,373,095 31,234
101 Huntington Pointe Apartments ARD 4,369,259 29,244
102 St. Lawrence Plaza Balloon 4,214,860 30,787
103 Days Inn - San Diego Balloon 4,200,000 31,202
104 Beechwood South Apartments Balloon 4,138,655 27,554
105 Bell Atlantic of Virginia Balloon 4,132,482 34,832
106 Sunnyslope Shopping Centre Balloon 4,086,243 28,378
107 Uptown Shopping Center Balloon 4,084,927 31,689
108 Woodman Lassen Apartments Balloon 4,034,209 25,943
109 Comfort Inn - Blacksburg Balloon 3,995,822 28,220
110 Castle Rockland Balloon 3,994,450 27,097
111 K-Mart Plaza Balloon 3,992,223 27,314
112 Lock It Up - San Jose Balloon 3,991,121 28,655
113 Holiday Inn - Ashland Balloon 3,966,388 28,808
114 Grandland Shopping Center Balloon 3,900,000 25,947
115 North County Plaza Balloon 3,894,562 26,367
116 Christiansburg Hills Plaza Shopping Center Balloon 3,894,508 26,262
117 Forest Village Apartments Balloon 3,894,332 25,921
118 Bronxville West Balloon 3,792,432 25,717
119 Days Inn - Laurel Balloon 3,791,881 27,724
120 Stratford Executive Park Balloon 3,737,878 26,888
121 Chenault Creek Balloon 3,729,721 24,782
122 Greenbriar Market Place Balloon 3,697,405 23,655
123 Alston Arms Apartments Balloon 3,673,898 26,240
124 Citi Centre ARD 3,662,054 25,384
125 Kmart - La Crosse 60 60 Fully Amortizing 3,650,000 21,596
126 Walgreen - Camp Bowie Fully Amortizing 3,637,119 27,663
127 Sun Ridge Apartments Balloon 3,612,501 23,231
128 410-420 Tarrytown Road Balloon 3,597,722 23,854
129 New York Plaza Balloon 3,492,692 23,262
130 Lake Arbor Shopping Center Balloon 3,490,560 23,356
131 Eckerd Drug Store Balloon 3,407,706 Step*
132 Sleep Inn Fully Amortizing 3,400,000 30,849
<CAPTION>
Original
Balloon/ Amortization
Control ARD Mortgage Term
No. Property Name Balance ($) ARD Maturity Rate (%) (months)
==========================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
66 Aventura Medical Plaza 5,017,559 10/1/08 7.250 360
67 Southgate Village Shopping Center 4,534,482 10/1/08 6.820 300
68 Brewery District Office 5,005,073 9/1/08 7.260 360
69 Kent Business Center 5,338,671 9/1/03 6.870 360
70 Villa Maria 4,883,814 11/1/08 7.000 360
71 Kash and Karry - Hudson 1,584,999 9/1/18 6.610 271
72 Forest Hill Shopping Center 4,293,591 9/1/13 7.050 360
73 Wyntree Apartments 4,858,542 8/1/08 6.800 360
74 Keebler Krossing Shopping Center 4,856,946 9/1/08 7.130 360
75 Havasu North Shopping Center 4,775,968 10/1/08 6.700 360
76 Valencia Entertainment Center 4,811,931 9/1/08 7.120 360
77 444 Saw Mill River Road 5,065,877 8/1/05 7.040 360
78 Twin Lakes Apartments 4,707,716 8/1/08 6.980 360
79 Little Prairie Shopping Center 4,689,805 2/1/08 2/1/28 6.860 360
80 JJ Court Apartments 4,582,012 10/1/08 6.270 360
81 Citadel 4,753,938 9/1/05 6.620 360
82 Roanoke West Apartments 4,588,747 9/1/07 7.430 349
83 Foothills Center 4,545,837 10/1/08 7.460 360
84 Ardsley Plaza 4,512,537 4/1/08 7.200 353
85 Wyngrove Apartments 4,337,983 8/1/08 6.800 360
86 450 Village Company 4,292,640 8/1/08 6.420 360
87 Lone Mountain Plaza Shopping Center 4,363,097 7/1/08 7.010 360
88 Kmart Store No. 4219 - Ashwaubenon, WI NAP 11/1/18 7.100 240
89 Holiday Inn Express - Minnetonka 4,009,752 9/1/08 7.410 300
90 335-355 Franklin Street 4,681,914 8/1/03 6.875 360
91 Fountain Park Apartments 4,190,058 10/1/08 7.030 360
92 Brittany Court Apartments 4,170,641 9/1/08 6.860 360
93 Sully Square Shopping Center 3,941,308 10/1/08 6.350 360
94 Capitol View Office Building 4,033,534 8/1/08 7.200 360
95 The Oaks Apartments 4,024,784 5/1/08 7.110 360
96 Hampshire Place 3,589,569 9/1/08 6.910 300
97 Shops at Butler Creek 3,981,096 1/1/08 1/1/28 7.570 360
98 Mosside Village 3,845,065 8/1/08 7.070 360
99 River North Concourse 3,864,757 7/1/08 7.260 360
100 Quality Suites 3,519,029 8/1/08 7.080 300
101 Huntington Pointe Apartments 4,048,202 2/1/05 2/1/28 6.990 360
102 St. Lawrence Plaza 3,783,443 8/1/07 7.840 347
103 Days Inn - San Diego 3,417,410 11/1/08 7.560 300
104 Beechwood South Apartments 3,618,482 7/1/08 6.980 360
105 Bell Atlantic of Virginia 483,964 9/1/13 6.590 195
106 Sunnyslope Shopping Centre 3,458,973 7/1/08 7.130 330
107 Uptown Shopping Center 2,786,574 9/1/08 6.960 240
108 Woodman Lassen Apartments 3,489,027 10/1/08 6.660 360
109 Comfort Inn - Blacksburg 3,198,144 10/1/08 6.980 300
110 Castle Rockland 3,505,067 9/1/08 7.180 360
111 K-Mart Plaza 3,364,291 8/1/10 7.260 360
112 Lock It Up - San Jose 2,549,595 9/1/13 7.150 300
113 Holiday Inn - Ashland 3,499,258 9/1/05 7.280 300
114 Grandland Shopping Center 3,401,227 11/1/08 7.000 360
115 North County Plaza 3,415,661 9/1/08 7.160 360
116 Christiansburg Hills Plaza Shopping Cente 2,408,534 9/1/18 7.120 360
117 Forest Village Apartments 3,400,432 9/1/08 6.990 360
118 Bronxville West 3,329,451 8/1/08 7.170 360
119 Days Inn - Laurel 3,350,155 9/1/05 7.355 300
120 Stratford Executive Park 3,015,165 8/1/08 7.160 300
121 Chenault Creek 3,259,256 7/1/08 6.960 360
122 Greenbriar Market Place 2,203,665 10/1/18 6.610 360
123 Alston Arms Apartments 2,956,386 8/1/08 7.080 300
124 Citi Centre 3,237,690 3/1/08 3/1/28 7.350 353
125 Kmart - La Crosse NAP 11/1/18 7.100 180
126 Walgreen - Camp Bowie NAP 7/1/18 6.650 237
127 Sun Ridge Apartments 3,124,309 10/1/08 6.660 360
128 410-420 Tarrytown Road 3,136,710 10/1/08 6.960 360
129 New York Plaza 3,052,108 8/1/08 6.990 360
130 Lake Arbor Shopping Center 2,682,695 7/1/13 7.030 360
131 Eckerd Drug Store 654,451 9/1/18 6.730 267
132 Sleep Inn NAP 11/1/13 7.050 180
<CAPTION>
Remaining Scheduled
term Maturity
to ARD Remaining Cut-off Cut-off or ARD
Control Seasoning or Maturity Lockout Date Date Date Loan
No. Property Name (months) (months) Months DSCR (x) LTV (%) LTV (%) Group
====================================================================================================================================
<C> <S> <C> <C> <C> <C> <C> <C> <C>
66 Aventura Medical Plaza 1 119 35 1.30 69.7 61.2 1
67 Southgate Village Shopping Center 1 119 47 1.34 76.4 60.9 1
68 Brewery District Office 2 118 46 1.39 75.4 66.3 1
69 Kent Business Center 2 58 25 1.42 73.9 70.0 1
70 Villa Maria 0 120 48 1.30 72.7 63.4 1
71 Kash and Karry - Hudson 1 238 47 NAP NAP NAP 1
72 Forest Hill Shopping Center 2 178 82 1.33 79.9 61.3 1
73 Wyntree Apartments 3 117 45 1.32 79.8 69.4 2
74 Keebler Krossing Shopping Center 2 118 46 1.31 78.9 69.1 1
75 Havasu North Shopping Center 1 119 47 1.46 79.9 69.2 1
76 Valencia Entertainment Center 2 118 46 1.41 74.5 65.2 1
77 444 Saw Mill River Road 3 81 45 1.44 68.6 63.3 1
78 Twin Lakes Apartments 3 117 45 1.37 74.0 64.7 2
79 Little Prairie Shopping Center 9 111 39 1.32 76.0 66.5 1
80 JJ Court Apartments 1 119 47 1.43 79.2 67.8 2
81 Citadel 2 82 46 1.44 74.2 67.9 1
82 Roanoke West Apartments 3 106 22 1.33 79.4 70.6 2
83 Foothills Center 1 119 24 1.39 71.1 62.8 1
84 Ardsley Plaza 0 113 41 1.33 75.4 66.4 1
85 Wyngrove Apartments 3 117 45 1.48 77.1 67.0 2
86 450 Village Company 3 117 45 2.39 42.6 36.7 1
87 Lone Mountain Plaza Shopping Center 4 116 44 1.50 64.3 56.3 1
88 Kmart Store No. 4219 - Ashwaubenon, WI 0 240 48 NAP NAP NAP 1
89 Holiday Inn Express - Minnetonka 2 118 46 1.68 74.8 60.8 1
90 335-355 Franklin Street 3 57 25 1.37 70.6 66.9 1
91 Fountain Park Apartments 1 119 47 1.33 80.0 69.8 2
92 Brittany Court Apartments 2 118 34 1.37 79.2 68.9 2
93 Sully Square Shopping Center 1 119 47 1.48 61.3 52.6 1
94 Capitol View Office Building 3 117 45 1.25 76.5 67.2 1
95 The Oaks Apartments 6 114 42 1.31 73.3 64.4 2
96 Hampshire Place 2 118 46 1.33 74.8 59.8 1
97 Shops at Butler Creek 10 110 26 1.47 65.7 58.5 1
98 Mosside Village 3 117 45 1.44 73.2 64.1 1
99 River North Concourse 4 116 44 1.30 74.4 65.5 1
100 Quality Suites 3 117 81 1.43 74.8 60.2 1
101 Huntington Pointe Apartments 9 75 39 1.24 77.7 72.0 2
102 St. Lawrence Plaza 2 105 46 1.23 77.3 69.4 1
103 Days Inn - San Diego 0 120 36 1.44 64.6 52.6 1
104 Beechwood South Apartments 4 116 44 1.25 79.1 69.1 2
105 Bell Atlantic of Virginia 2 178 46 NAP NAP NAP 1
106 Sunnyslope Shopping Centre 4 116 32 1.32 74.3 62.9 1
107 Uptown Shopping Center 2 118 46 1.24 71.7 48.9 1
108 Woodman Lassen Apartments 1 119 47 1.32 79.1 68.4 2
109 Comfort Inn - Blacksburg 1 119 47 1.51 69.5 55.6 1
110 Castle Rockland 2 118 46 1.35 75.4 66.1 1
111 K-Mart Plaza 3 141 57 1.39 72.3 60.9 1
112 Lock It Up - San Jose 2 178 82 1.48 74.2 47.4 1
113 Holiday Inn - Ashland 2 82 34 1.49 74.8 66.0 1
114 Grandland Shopping Center 0 120 48 1.33 78.3 68.3 1
115 North County Plaza 2 118 46 1.49 67.7 59.4 1
116 Christiansburg Hills Plaza Shopping Cente 2 238 46 1.28 74.9 46.3 1
117 Forest Village Apartments 2 118 46 1.35 79.5 69.4 2
118 Bronxville West 3 117 45 1.37 70.2 61.7 1
119 Days Inn - Laurel 2 82 34 1.50 74.4 65.7 1
120 Stratford Executive Park 3 117 45 1.41 68.6 55.3 1
121 Chenault Creek 4 116 56 1.37 78.5 68.6 2
122 Greenbriar Market Place 1 239 47 1.59 74.7 44.5 1
123 Alston Arms Apartments 3 117 45 1.51 72.0 58.0 2
124 Citi Centre 1 112 39 1.26 79.6 70.4 1
125 Kmart - La Crosse 0 240 48 NAP NAP NAP 1
126 Walgreen - Camp Bowie 1 236 47 NAP NAP NAP 1
127 Sun Ridge Apartments 1 119 47 1.32 78.5 67.9 2
128 410-420 Tarrytown Road 1 119 47 1.47 76.5 66.7 1
129 New York Plaza 3 117 45 1.28 77.6 67.8 1
130 Lake Arbor Shopping Center 4 176 80 1.33 76.7 59.0 1
131 Eckerd Drug Store 1 238 47 NAP NAP NAP 1
132 Sleep Inn 0 180 60 2.15 40.0 NAP 1
</TABLE>
Annex A-2 - 2
<PAGE>
<TABLE>
<CAPTION>
Original Remaining
Interest-Only Interest-Only
Control Period Period Amortization Cut-off Date Monthly
No. Property Name (months) (months) Type Balance ($) P&I ($)
=============================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
133 Hall of Fame Marina Balloon 3,398,051 23,263
134 Contemporary Village Apartments Balloon 3,395,070 22,620
135 Commerce Exchange Business Park Balloon 3,391,027 22,872
136 428 Tolland Turnpike Fully Amortizing 3,380,752 26,749
137 Tropicana Center and Flamingo Jones Balloon 3,347,172 23,107
138 Cameron Ridge Apartments Balloon 3,295,063 21,668
139 Loudon Plaza Balloon 3,268,667 22,408
140 Smartpark Balloon 3,236,444 23,512
141 One North Penn Office Building Balloon 3,220,369 21,543
142 Kmart 60 60 Fully Amortizing 3,199,473 18,930
143 125 Canal Street Balloon 3,198,195 22,004
144 Alton Circle Balloon 3,198,029 21,397
145 Country Club Apartments Balloon 3,197,926 21,032
146 Trailing Vine Place Apartment Balloon 3,193,249 21,182
147 Bayway Shopping Center Balloon 3,184,932 21,895
148 Park Row East Apartments Balloon 3,147,766 20,055
149 Thunderbird Square Balloon 3,100,000 21,676
150 Walgreens Fully Amortizing 3,097,451 23,706
151 Sherwood Gardens Apts. Balloon 3,091,525 20,583
152 Star Plaza Balloon 3,077,564 20,567
153 Stratford Place Apartments Balloon 3,048,023 20,047
154 Morrell Plaza Shopping Center Balloon 3,045,524 20,189
155 Fountain Hills Plaza Shopping Center Balloon 2,998,101 19,879
156 La Quinta Apartments Balloon 2,995,501 19,678
157 Franklin Properties Balloon 2,994,746 23,079
158 Foot Hills Shopping Center Balloon 2,991,909 20,020
159 Walgreen - Portage Balloon 2,970,449 22,759
160 Riverchase Apartments Balloon 2,921,453 20,900
161 Quality Inn Balloon 2,915,397 20,823
162 350-360 Tarrytown Road Balloon 2,848,196 18,885
163 Kings Bay Plaza Balloon 2,830,000 20,470
164 Hidden Valley Apartments Balloon 2,822,945 17,819
165 Warlick Plaza Balloon 2,800,000 18,254
166 Upland Plaza Balloon 2,800,000 20,060
167 Sharon Lakes Plaza Balloon 2,794,585 19,158
168 Randolph Plaza Balloon 2,790,861 19,987
169 Orangewood Business Plaza Balloon 2,773,275 18,499
170 Guilford Village Balloon 2,700,000 17,351
171 North County Office Balloon 2,696,235 18,254
172 1 Ethel Blvd Fully Amortizing 2,683,453 24,740
173 The Embassy Cinema Balloon 2,646,597 18,511
174 Staples - Galesburg Balloon 2,640,770 21,004
175 Pinebrook Village Balloon 2,625,000 18,988
176 Studio Inn Balloon 2,593,980 18,244
177 Plaza 114 Balloon 2,593,845 17,537
178 201 Federal Road Fully Amortizing 2,585,281 20,455
179 Eckerd Fully Amortizing 2,520,704 Step*
180 Glen Ellen Mobile Home Park Balloon 2,514,914 16,969
181 Plaza West Strip Center Balloon 2,500,000 19,942
182 Atrium at Delk Center Balloon 2,500,000 16,802
183 3650 Industrial Avenue Balloon 2,498,475 16,767
184 Jacksonville Apartments Balloon 2,496,497 16,868
185 West Bay Office Park Balloon 2,495,230 17,190
186 Sav-On Drug Store Balloon 2,494,928 16,801
187 Holiday Inn Express - Fargo Balloon 2,494,604 18,151
188 Smokey Hill Plaza Shopping Center Balloon 2,494,441 17,893
189 Rue Granville Apartments Balloon 2,478,165 15,545
190 Revco - Savannah Balloon 2,440,922 Step*
191 Turnberry Crossing Shopping Center Balloon 2,395,067 16,048
192 Rite Aid - Walkill Fully Amortizing 2,379,613 Step*
193 Lucky Industrial Park Balloon 2,378,613 15,976
194 Target Center Balloon 2,368,784 16,025
195 Golfsmith Balloon 2,348,513 15,572
196 70 Garden Court Balloon 2,346,691 15,824
197 Bonita Harbor Apartments Balloon 2,342,225 16,669
198 Caputo Balloon 2,298,639 15,581
199 Heather Ridge Village Balloon 2,296,801 15,565
<CAPTION>
Original
Balloon/ Amortization
Control ARD Mortgage Term
No. Property Name Balance ($) ARD Maturity Rate (%) (months)
==========================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
133 Hall of Fame Marina 2,987,385 10/1/08 7.280 360
134 Contemporary Village Apartments 3,129,215 9/1/05 7.000 360
135 Commerce Exchange Business Park 2,974,750 7/1/08 7.110 360
136 428 Tolland Turnpike NAP 8/1/18 7.190 240
137 Tropicana Center and Flamingo Jones 3,003,354 10/1/05 7.030 324
138 Cameron Ridge Apartments 3,120,923 9/1/03 6.870 360
139 Loudon Plaza 2,877,651 8/1/08 7.280 360
140 Smartpark 2,621,640 7/1/08 7.260 300
141 One North Penn Office Building 2,815,618 9/1/08 7.040 360
142 Kmart NAP 11/1/18 7.100 180
143 125 Canal Street 2,815,269 10/1/08 7.330 360
144 Alton Circle 2,794,849 10/1/08 7.050 360
145 Country Club Apartments 2,782,227 10/1/08 6.880 360
146 Trailing Vine Place Apartment 3,029,383 8/1/03 6.950 360
147 Bayway Shopping Center 2,811,927 4/1/08 7.280 360
148 Park Row East Apartments 2,877,358 10/1/05 6.570 360
149 Thunderbird Square 2,738,638 11/1/08 7.500 360
150 Walgreens NAP 4/1/18 6.650 234
151 Sherwood Gardens Apts. 2,702,962 7/1/08 6.980 360
152 Star Plaza 2,690,059 9/1/08 7.030 360
153 Stratford Place Apartments 2,651,810 10/1/08 6.880 360
154 Morrell Plaza Shopping Center 2,656,486 9/1/08 6.950 360
155 Fountain Hills Plaza Shopping Center 2,613,925 10/1/08 6.960 360
156 La Quinta Apartments 2,606,650 9/1/08 6.860 360
157 Franklin Properties 2,034,821 10/1/08 6.900 240
158 Foot Hills Shopping Center 2,299,452 7/1/13 7.030 360
159 Walgreen - Portage 883,036 9/1/18 7.680 284
160 Riverchase Apartments 2,350,205 9/1/08 7.110 300
161 Quality Inn 2,346,018 8/1/08 7.080 300
162 350-360 Tarrytown Road 2,483,230 10/1/08 6.960 360
163 Kings Bay Plaza 2,521,782 11/1/08 7.850 360
164 Hidden Valley Apartments 2,429,372 10/1/08 6.480 360
165 Warlick Plaza 2,428,867 11/1/08 6.800 360
166 Upland Plaza 2,488,986 11/1/08 7.750 360
167 Sharon Lakes Plaza 2,589,472 8/1/05 7.280 360
168 Randolph Plaza 2,247,850 8/1/08 7.110 300
169 Orangewood Business Plaza 2,421,737 10/1/08 7.020 360
170 Guilford Village 2,333,201 11/1/08 6.660 360
171 North County Office 2,364,689 9/1/08 7.160 360
172 1 Ethel Blvd NAP 9/1/13 7.210 180
173 The Embassy Cinema 2,340,589 9/1/08 7.490 360
174 Staples - Galesburg 830,409 5/1/13 6.650 217
175 Pinebrook Village 2,339,109 11/1/08 7.850 360
176 Studio Inn 2,074,624 9/1/08 6.920 300
177 Plaza 114 2,275,409 7/1/08 7.130 357
178 201 Federal Road NAP 8/1/18 7.190 240
179 Eckerd NAP 6/1/18 6.710 237
180 Glen Ellen Mobile Home Park 2,205,068 8/1/08 7.120 360
181 Plaza West Strip Center 1,724,406 11/1/08 7.370 240
182 Atrium at Delk Center 1,965,033 11/1/08 6.450 300
183 3650 Industrial Avenue 2,185,201 10/1/08 7.080 360
184 Jacksonville Apartments 2,188,385 9/1/08 7.140 360
185 West Bay Office Park 2,199,504 8/1/08 7.330 360
186 Sav-On Drug Store 2,186,420 8/1/08 7.100 360
187 Holiday Inn Express - Fargo 2,018,389 9/1/08 7.300 300
188 Smokey Hill Plaza Shopping Center 2,008,523 9/1/08 7.140 300
189 Rue Granville Apartments 2,129,093 10/1/08 6.420 360
190 Revco - Savannah 613,071 10/1/18 6.950 275
191 Turnberry Crossing Shopping Center 2,096,203 8/1/08 7.050 360
192 Rite Aid - Walkill NAP 7/1/18 7.010 237
193 Lucky Industrial Park 2,081,820 9/1/08 7.080 360
194 Target Center 2,079,586 7/1/08 7.140 360
195 Golfsmith 2,047,575 10/1/08 6.960 360
196 70 Garden Court 2,056,006 9/1/08 7.120 360
197 Bonita Harbor Apartments 1,882,496 8/1/08 7.040 300
198 Caputo 2,015,653 10/1/08 7.180 360
199 Heather Ridge Village 2,014,889 9/1/08 7.170 360
<CAPTION>
Remaining Scheduled
term Maturity
to ARD Remaining Cut-off Cut-off or ARD
Control Seasoning or Maturity Lockout Date Date Date Loan
No. Property Name (months) (months) Months DSCR (x) LTV (%) LTV (%) Group
====================================================================================================================================
<C> <S> <C> <C> <C> <C> <C> <C> <C>
133 Hall of Fame Marina 1 119 47 1.45 61.8 54.3 1
134 Contemporary Village Apartments 2 82 46 1.52 75.4 69.5 2
135 Commerce Exchange Business Park 4 116 44 1.31 74.5 65.4 1
136 428 Tolland Turnpike 3 237 234 1.53 71.9 NAP 1
137 Tropicana Center and Flamingo Jones 1 83 47 1.32 73.6 66.0 1
138 Cameron Ridge Apartments 2 58 28 1.34 70.9 67.1 2
139 Loudon Plaza 3 117 45 1.34 73.0 64.3 1
140 Smartpark 4 116 44 1.49 51.4 41.6 1
141 One North Penn Office Building 2 118 46 1.36 71.6 62.6 1
142 Kmart 0 240 48 NAP NAP NAP 1
143 125 Canal Street 1 119 47 1.30 80.0 70.4 1
144 Alton Circle 1 119 59 1.33 78.0 68.2 1
145 Country Club Apartments 1 119 35 1.28 78.6 68.4 2
146 Trailing Vine Place Apartment 3 57 25 1.33 79.8 75.7 2
147 Bayway Shopping Center 7 113 41 1.40 74.1 65.4 1
148 Park Row East Apartments 1 83 35 1.41 70.0 63.9 2
149 Thunderbird Square 0 120 48 1.32 74.7 66.0 1
150 Walgreens 1 233 47 NAP NAP NAP 1
151 Sherwood Gardens Apts. 4 116 44 1.55 77.3 67.6 1
152 Star Plaza 2 118 46 1.36 76.9 67.3 1
153 Stratford Place Apartments 1 119 35 1.29 78.5 68.3 2
154 Morrell Plaza Shopping Center 2 118 46 1.29 66.2 57.7 1
155 Fountain Hills Plaza Shopping Center 1 119 35 1.36 75.0 65.3 1
156 La Quinta Apartments 2 118 34 1.37 77.8 67.7 2
157 Franklin Properties 1 119 47 1.32 78.8 53.5 2
158 Foot Hills Shopping Center 4 176 80 1.37 74.8 57.5 1
159 Walgreen - Portage 1 238 47 NAP NAP NAP 1
160 Riverchase Apartments 2 118 46 1.25 77.9 62.7 2
161 Quality Inn 3 117 81 1.42 74.8 60.2 1
162 350-360 Tarrytown Road 1 119 47 1.49 69.5 60.6 1
163 Kings Bay Plaza 0 120 25 1.26 74.5 66.4 1
164 Hidden Valley Apartments 1 119 47 1.38 77.3 66.6 2
165 Warlick Plaza 0 120 48 1.43 77.8 67.5 1
166 Upland Plaza 0 120 36 1.33 73.7 65.5 1
167 Sharon Lakes Plaza 3 81 33 1.35 79.8 74.0 1
168 Randolph Plaza 3 117 45 1.32 70.7 57.0 1
169 Orangewood Business Plaza 1 119 47 1.40 71.1 62.1 1
170 Guilford Village 0 120 36 1.49 71.8 62.1 1
171 North County Office 2 118 46 1.40 77.9 68.3 1
172 1 Ethel Blvd 2 178 46 1.45 48.8 NAP 1
173 The Embassy Cinema 2 118 46 1.40 69.6 61.6 1
174 Staples - Galesburg 1 174 47 NAP NAP NAP 1
175 Pinebrook Village 0 120 25 1.40 75.0 66.8 1
176 Studio Inn 2 118 46 1.51 59.8 47.8 1
177 Plaza 114 1 116 44 1.50 74.1 65.0 1
178 201 Federal Road 3 237 234 1.39 71.8 NAP 1
179 Eckerd 2 235 118 NAP NAP NAP 1
180 Glen Ellen Mobile Home Park 3 117 45 1.26 79.0 69.2 1
181 Plaza West Strip Center 0 120 60 1.29 74.6 51.5 1
182 Atrium at Delk Center 0 120 48 1.60 64.1 50.4 1
183 3650 Industrial Avenue 1 119 47 1.31 79.3 69.4 1
184 Jacksonville Apartments 2 118 58 1.34 75.7 66.3 2
185 West Bay Office Park 3 117 45 1.41 73.4 64.7 1
186 Sav-On Drug Store 3 117 45 1.26 77.0 67.5 1
187 Holiday Inn Express - Fargo 2 118 46 1.58 74.5 60.3 1
188 Smokey Hill Plaza Shopping Center 2 118 46 1.37 73.4 59.1 1
189 Rue Granville Apartments 1 119 47 1.38 79.9 68.7 2
190 Revco - Savannah 0 239 48 NAP NAP NAP 1
191 Turnberry Crossing Shopping Center 3 117 45 1.60 71.5 62.6 1
192 Rite Aid - Walkill 1 236 47 NAP NAP NAP 1
193 Lucky Industrial Park 2 118 46 1.29 79.3 69.4 1
194 Target Center 4 116 44 1.33 59.0 51.8 1
195 Golfsmith 1 119 47 1.40 73.4 64.0 1
196 70 Garden Court 2 118 34 1.40 72.2 63.3 1
197 Bonita Harbor Apartments 3 117 45 1.36 73.2 58.8 2
198 Caputo 1 119 47 1.34 79.3 69.5 2
199 Heather Ridge Village 2 118 58 1.47 70.7 62.0 1
</TABLE>
Annex A-2 - 3
<PAGE>
<TABLE>
<CAPTION>
Original Remaining
Interest-Only Interest-Only
Control Period Period Amortization Cut-off Date Monthly
No. Property Name (months) (months) Type Balance ($) P&I ($)
=============================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
200 Leviner Office Building Balloon 2,296,706 15,379
201 Shoppes of Avon Balloon 2,296,706 15,379
202 Buckner Village Apartments Balloon 2,296,681 15,333
203 San Marco Village Balloon 2,244,078 15,151
204 Staples Balloon 2,223,692 15,103
205 Transcor Balloon 2,200,000 15,492
206 Vista Park Apartments Balloon 2,198,582 14,489
207 Windsor Estates Balloon 2,196,917 14,844
208 Roland Park Shopping Center Balloon 2,194,383 14,978
209 Pathmark Shopping Center Balloon 2,186,160 19,444
210 Old Lake Place Shopping Center Balloon 2,181,456 13,913
211 West Flagler Shops Balloon 2,173,409 13,690
212 3128 North Ashland Avenue Balloon 2,170,714 14,778
213 Westgate Plaza Balloon 2,148,841 14,989
214 Hillsboro Shoppes Balloon 2,136,065 13,878
215 Kmart - Tacoma Balloon 2,098,838 14,526
216 Post Office Annex Building Balloon 2,048,757 13,777
217 Eckerd - Greensboro Fully Amortizing 2,045,996 Step*
218 Regal Pointe Apartments Balloon 2,021,018 13,773
219 Clarksville Crossing Balloon 1,998,922 13,943
220 Merchants Plaza Balloon 1,998,813 13,535
221 Statewide Self Storage Balloon 1,998,030 14,456
222 25227 Grogans Mill Office Building Balloon 1,970,624 14,161
223 Florida Space Center Balloon 1,970,624 14,161
224 Fairway Gardens Balloon 1,943,385 13,670
225 Rite Aid - West Haven Balloon 1,902,371 14,035
226 Staples Balloon 1,898,883 12,897
227 Commerce Point Balloon 1,847,793 12,307
228 93 Broadway Balloon 1,847,439 12,545
229 Arvada Square Shopping Center Balloon 1,823,873 12,191
230 Battlefield Center Balloon 1,798,749 11,543
231 CVS - Asheboro Fully Amortizing 1,776,000 Step*
232 NFC Office Plaza Balloon 1,771,992 12,620
233 Oakwood Terrace Apartments Balloon 1,750,000 10,866
234 CVS - Ballentine Fully Amortizing 1,750,000 12,507
235 Jackson's Landing Apartments Balloon 1,717,554 11,536
236 Centergate Balloon 1,696,686 11,597
237 King Kullen Shopping Center Balloon 1,689,305 15,025
238 Anaheim Springs Office Balloon 1,676,250 12,003
239 AUS Building Balloon 1,674,281 11,864
240 Queens West Industustrial Balloon 1,648,927 10,834
241 Forest Hill Park Apartment Complex Balloon 1,636,312 11,675
242 West Brandon Square Balloon 1,622,644 10,811
243 CVS - Stanley Fully Amortizing 1,597,097 13,117
244 Deer Park Balloon 1,595,926 10,904
245 Fairmont Building Balloon 1,595,057 11,710
246 Papago Place Balloon 1,572,782 10,606
247 Humble Office Building Balloon 1,547,780 10,364
248 Golden Oak Village Apartments Balloon 1,547,769 10,343
249 CVS - Denver Balloon 1,547,289 11,934
250 Free State Self Storage Balloon 1,546,635 11,223
251 Brookmeade Plaza Balloon 1,498,545 10,910
252 80 Garden Court Balloon 1,497,888 10,101
253 CVS - Sunset Beach Fully Amortizing 1,497,089 11,549
254 Centenial Mall Balloon 1,495,189 10,794
255 CVS - King's Mountian Fully Amortizing 1,491,080 11,594
256 Southland (7-11) Fully Amortizing 1,462,648 Step*
257 North Grove Plaza Balloon 1,450,000 10,488
258 Thomas Center Balloon 1,448,553 10,425
259 4708 North Milwaukee Balloon 1,447,143 9,852
260 9255 South Western Avenue Balloon 1,447,143 9,852
261 Greenwich/Laguardia Balloon 1,422,863 9,347
262 Kmart - Rock Springs Plaza Balloon 1,399,225 9,684
263 Rockwood Plaza Shopping Center Balloon 1,398,043 9,456
264 Sierra Carmichael Apartments Balloon 1,397,167 9,418
265 1501 Estes Avenue Balloon 1,397,122 9,361
266 581 Wolcott Street Fully Amortizing 1,392,074 11,014
<CAPTION>
Original
Balloon/ Amortization
Control ARD Mortgage Term
No. Property Name Balance ($) ARD Maturity Rate (%) (months)
==========================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
200 Leviner Office Building 2,008,567 9/1/08 7.050 360
201 Shoppes of Avon 2,008,567 9/1/08 7.050 360
202 Buckner Village Apartments 2,006,977 9/1/08 7.020 360
203 San Marco Village 1,969,103 7/1/08 7.120 360
204 Staples 1,950,939 10/1/08 7.200 360
205 Transcor 1,980,322 11/1/05 7.250 324
206 Vista Park Apartments 1,913,808 10/1/08 6.900 360
207 Windsor Estates 1,925,779 9/1/08 7.140 360
208 Roland Park Shopping Center 1,701,587 7/1/13 7.230 360
209 Pathmark Shopping Center 1,012,475 9/1/08 6.730 180
210 Old Lake Place Shopping Center 1,882,523 10/1/08 6.580 360
211 West Flagler Shops 1,869,353 10/1/08 6.460 360
212 3128 North Ashland Avenue 1,907,656 8/1/08 7.210 360
213 Westgate Plaza 1,361,777 10/1/18 7.470 360
214 Hillsboro Shoppes 1,852,420 10/1/08 6.760 360
215 Kmart - Tacoma 1,322,637 10/1/18 7.390 360
216 Post Office Annex Building 1,792,807 10/1/08 7.100 360
217 Eckerd - Greensboro NAP 7/1/18 7.050 237
218 Regal Pointe Apartments 1,870,866 8/1/05 7.220 360
219 Clarksville Crossing 1,266,769 10/1/18 7.470 360
220 Merchants Plaza 1,752,285 10/1/08 7.170 360
221 Statewide Self Storage 1,612,476 10/1/08 7.250 300
222 25227 Grogans Mill Office Building 1,815,879 9/1/03 7.160 300
223 Florida Space Center 1,587,710 9/1/08 7.160 300
224 Fairway Gardens 1,555,734 8/1/08 6.910 300
225 Rite Aid - West Haven 541,521 6/1/18 7.180 282
226 Staples 1,665,970 10/1/08 7.200 360
227 Commerce Point 1,449,107 10/1/08 6.340 300
228 93 Broadway 1,621,515 9/1/08 7.190 360
229 Arvada Square Shopping Center 1,593,516 10/1/08 7.040 360
230 Battlefield Center 1,554,815 10/1/08 6.640 360
231 CVS - Asheboro NAP 8/1/18 7.010 237
232 NFC Office Plaza 1,423,329 9/1/08 7.060 300
233 Oakwood Terrace Apartments 1,498,379 11/1/08 6.330 360
234 CVS - Ballentine NAP 11/1/18 5.970 240
235 Jackson's Landing Apartments 1,503,246 9/1/08 7.080 360
236 Centergate 1,492,586 8/1/08 7.250 360
237 King Kullen Shopping Center 782,366 9/1/08 6.730 180
238 Anaheim Springs Office 1,348,894 9/1/08 7.120 300
239 AUS Building 1,411,176 7/1/08 7.280 324
240 Queens West Industustrial 1,434,201 10/1/08 6.870 360
241 Forest Hill Park Apartment Complex 1,315,151 9/1/08 7.080 300
242 West Brandon Square 1,417,222 9/1/08 7.000 360
243 CVS - Stanley NAP 7/1/18 7.660 237
244 Deer Park 1,404,639 7/1/08 7.240 360
245 Fairmont Building 1,295,537 8/1/08 7.390 300
246 Papago Place 1,493,897 9/1/03 7.120 360
247 Humble Office Building 1,353,599 9/1/08 7.050 360
248 Golden Oak Village Apartments 1,187,326 9/1/13 7.030 360
249 CVS - Denver 48,956 10/1/18 6.910 240
250 Free State Self Storage 1,250,257 9/1/08 7.270 300
251 Brookmeade Plaza 1,211,943 10/1/08 7.320 300
252 80 Garden Court 1,312,344 9/1/08 7.120 360
253 CVS - Sunset Beach NAP 10/1/18 6.910 240
254 Centenial Mall 1,207,551 8/1/08 7.200 300
255 CVS - King's Mountian NAP 6/1/18 6.910 238
256 Southland (7-11) NAP 7/1/13 6.900 177
257 North Grove Plaza 1,292,079 11/1/08 7.850 360
258 Thomas Center 1,166,897 10/1/08 7.190 300
259 4708 North Milwaukee 1,271,770 8/1/08 7.210 360
260 9255 South Western Avenue 1,271,770 8/1/08 7.210 360
261 Greenwich/Laguardia 1,238,159 9/1/08 6.860 360
262 Kmart - Rock Springs Plaza 881,756 10/1/18 7.390 360
263 Rockwood Plaza Shopping Center 1,225,816 9/1/08 7.150 360
264 Sierra Carmichael Apartments 1,224,717 8/1/08 7.110 360
265 1501 Estes Avenue 1,222,785 8/1/08 7.050 360
266 581 Wolcott Street NAP 8/1/18 7.190 240
<CAPTION>
Remaining Scheduled
term Maturity
to ARD Remaining Cut-off Cut-off or ARD
Control Seasoning or Maturity Lockout Date Date Date Loan
No. Property Name (months) (months) Months DSCR (x) LTV (%) LTV (%) Group
====================================================================================================================================
<C> <S> <C> <C> <C> <C> <C> <C> <C>
200 Leviner Office Building 2 118 46 1.34 70.7 61.8 1
201 Shoppes of Avon 2 118 46 1.48 74.6 65.2 1
202 Buckner Village Apartments 2 118 46 1.50 76.6 66.9 2
203 San Marco Village 4 116 44 1.51 70.1 61.5 2
204 Staples 1 119 47 1.32 79.7 69.9 1
205 Transcor 0 84 48 1.28 80.0 72.0 1
206 Vista Park Apartments 1 119 47 1.31 79.9 69.6 2
207 Windsor Estates 2 118 46 1.50 77.1 67.6 2
208 Roland Park Shopping Center 4 176 44 1.32 74.6 57.9 1
209 Pathmark Shopping Center 2 118 46 1.86 25.1 11.6 1
210 Old Lake Place Shopping Center 1 119 47 1.63 71.5 61.7 1
211 West Flagler Shops 1 119 47 1.58 74.9 64.5 1
212 3128 North Ashland Avenue 3 117 45 1.53 72.4 63.6 1
213 Westgate Plaza 1 239 47 1.40 74.9 47.4 1
214 Hillsboro Shoppes 1 119 47 1.56 74.9 65.0 1
215 Kmart - Tacoma 1 239 47 1.41 75.0 47.2 1
216 Post Office Annex Building 1 119 59 1.31 73.2 64.0 1
217 Eckerd - Greensboro 1 236 47 NAP NAP NAP 1
218 Regal Pointe Apartments 3 81 33 1.31 74.9 69.3 2
219 Clarksville Crossing 1 239 47 1.39 74.9 47.4 1
220 Merchants Plaza 1 119 47 1.40 71.4 62.6 1
221 Statewide Self Storage 1 119 47 1.88 58.3 47.0 1
222 25227 Grogans Mill Office Building 2 58 34 1.39 73.0 67.3 1
223 Florida Space Center 2 118 46 1.34 66.8 53.8 1
224 Fairway Gardens 3 117 45 1.25 74.7 59.8 2
225 Rite Aid - West Haven 3 235 45 NAP NAP NAP 1
226 Staples 1 119 47 1.39 74.5 65.3 1
227 Commerce Point 1 119 47 1.45 73.3 57.5 1
228 93 Broadway 2 118 46 1.40 73.2 64.2 1
229 Arvada Square Shopping Center 1 119 47 1.37 67.6 59.0 1
230 Battlefield Center 1 119 47 1.53 72.8 62.9 1
231 CVS - Asheboro 0 237 120 NAP NAP NAP 1
232 NFC Office Plaza 2 118 46 1.35 76.4 61.4 1
233 Oakwood Terrace Apartments 0 120 48 1.37 74.5 63.8 2
234 CVS - Ballentine 0 240 120 NAP NAP NAP 1
235 Jackson's Landing Apartments 2 118 46 1.39 79.9 69.9 1
236 Centergate 3 117 45 1.56 73.3 64.5 1
237 King Kullen Shopping Center 2 118 46 3.59 18.0 8.3 1
238 Anaheim Springs Office 2 118 46 1.35 71.3 57.4 1
239 AUS Building 4 116 44 1.36 74.4 62.7 1
240 Queens West Industustrial 1 119 47 1.35 56.9 49.5 1
241 Forest Hill Park Apartment Complex 2 118 46 1.53 77.9 62.6 2
242 West Brandon Square 2 118 46 1.43 74.6 65.2 1
243 CVS - Stanley 1 236 119 NAP NAP NAP 1
244 Deer Park 4 116 44 1.34 76.0 66.9 2
245 Fairmont Building 3 117 45 1.30 74.5 60.5 1
246 Papago Place 2 58 24 1.41 74.9 71.1 1
247 Humble Office Building 2 118 46 1.36 72.0 63.0 1
248 Golden Oak Village Apartments 2 178 46 1.21 82.3 63.2 2
249 CVS - Denver 1 239 119 NAP NAP NAP 1
250 Free State Self Storage 2 118 46 1.32 73.6 59.5 1
251 Brookmeade Plaza 1 119 47 1.39 73.1 59.1 1
252 80 Garden Court 2 118 34 1.31 52.6 46.0 1
253 CVS - Sunset Beach 1 239 119 NAP NAP NAP 1
254 Centenial Mall 3 117 33 1.35 66.5 53.7 1
255 CVS - King's Mountian 3 235 117 NAP NAP NAP 1
256 Southland (7-11) 1 176 47 NAP NAP NAP 1
257 North Grove Plaza 0 120 25 1.29 68.2 60.8 1
258 Thomas Center 1 119 47 1.47 60.4 48.6 1
259 4708 North Milwaukee 3 117 45 1.48 72.4 63.6 1
260 9255 South Western Avenue 3 117 45 1.41 72.4 63.6 1
261 Greenwich/Laguardia 2 118 46 1.37 69.4 60.4 1
262 Kmart - Rock Springs Plaza 1 239 47 1.34 66.6 42.0 1
263 Rockwood Plaza Shopping Center 2 118 46 1.42 63.5 55.7 1
264 Sierra Carmichael Apartments 3 117 45 1.31 66.5 58.3 2
265 1501 Estes Avenue 3 117 45 1.30 69.9 61.1 1
266 581 Wolcott Street 3 237 234 1.33 69.6 NAP 1
</TABLE>
Annex A-2 - 4
<PAGE>
<TABLE>
<CAPTION>
Original Remaining
Interest-Only Interest-Only
Control Period Period Amortization Cut-off Date Monthly
No. Property Name (months) (months) Type Balance ($) P&I ($)
=============================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
267 Dixie Commerce Center Balloon 1,376,388 9,311
268 IHOP Fully Amortizing 1,375,000 Step*
269 Ridge at White Oak Apartments Balloon 1,366,055 9,175
270 388 Tarrytown Road Balloon 1,299,209 8,728
271 Governors Park Office Park Balloon 1,298,133 8,684
272 Remax Building Balloon 1,297,438 8,833
273 Ferndale Mobile Village Balloon 1,296,626 8,416
274 Lions Lair Travel Park Balloon 1,296,024 9,556
275 Rite Aid - Richmond Balloon 1,278,688 Step*
276 Hartstown Village Apartment Complex Balloon 1,197,302 8,543
277 6300 Richmond Balloon 1,196,106 8,589
278 Pindle East Apartments Balloon 1,160,178 8,286
279 Lake of 610 Balloon 1,097,536 7,845
280 Ames - Palmer Plaza Balloon 1,049,419 7,263
281 Grogan's Forest Shopping Center Balloon 898,388 6,843
282 Bearden Place Shopping Center Balloon 747,765 5,577
283 56th Street Warehouse Fully Amortizing 745,925 6,719
284 Frys In-Line Space Balloon 709,597 4,872
285 2120 South Oak Park Ave Balloon 698,621 4,756
286 Shops on Cumberland Balloon 598,212 4,461
$2,025,590,706
==============
<CAPTION>
Original
Balloon/ Amortization
Control ARD Mortgage Term
No. Property Name Balance ($) ARD Maturity Rate (%) (months)
==========================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
267 Dixie Commerce Center 1,208,350 7/1/08 7.140 360
268 IHOP NAP 8/1/18 7.100 237
269 Ridge at White Oak Apartments 1,195,603 9/1/08 7.080 360
270 388 Tarrytown Road 1,136,604 10/1/08 7.090 360
271 Governors Park Office Park 1,134,978 9/1/08 7.040 360
272 Remax Building 1,140,208 8/1/08 7.210 360
273 Ferndale Mobile Village 1,124,146 10/1/08 6.750 360
274 Lions Lair Travel Park 1,054,215 8/1/08 7.440 300
275 Rite Aid - Richmond 375,480 11/1/16 7.050 257
276 Hartstown Village Apartment Complex 962,305 9/1/08 7.080 300
277 6300 Richmond 964,256 8/1/08 7.140 300
278 Pindle East Apartments 933,595 8/1/08 7.080 300
279 Lake of 610 964,876 9/1/05 7.100 300
280 Ames - Palmer Plaza 661,316 10/1/18 7.390 360
281 Grogan's Forest Shopping Center 607,081 10/1/08 6.750 240
282 Bearden Place Shopping Center 610,576 8/1/08 7.570 300
283 56th Street Warehouse NAP 9/1/14 7.500 192
284 Frys In-Line Space 624,318 10/1/08 7.310 360
285 2120 South Oak Park Ave 613,958 8/1/08 7.210 360
286 Shops on Cumberland 488,462 8/1/08 7.570 300
<CAPTION>
Remaining Scheduled
term Maturity
to ARD Remaining Cut-off Cut-off or ARD
Control Seasoning or Maturity Lockout Date Date Date Loan
No. Property Name (months) (months) Months DSCR (x) LTV (%) LTV (%) Group
====================================================================================================================================
<C> <S> <C> <C> <C> <C> <C> <C> <C>
267 Dixie Commerce Center 4 116 44 1.41 74.6 65.5 1
268 IHOP 0 237 48 NAP NAP NAP 1
269 Ridge at White Oak Apartments 2 118 46 1.33 79.9 69.9 1
270 388 Tarrytown Road 1 119 47 1.41 72.2 63.1 1
271 Governors Park Office Park 2 118 46 1.33 74.2 64.9 1
272 Remax Building 3 117 45 1.59 73.3 64.4 1
273 Ferndale Mobile Village 1 119 47 1.29 76.3 66.1 1
274 Lions Lair Travel Park 3 117 45 1.48 70.4 57.3 1
275 Rite Aid - Richmond 2 216 118 NAP NAP NAP 1
276 Hartstown Village Apartment Complex 2 118 46 1.46 74.8 60.1 2
277 6300 Richmond 3 117 45 1.45 70.4 56.7 1
278 Pindle East Apartments 3 117 45 1.40 72.5 58.3 2
279 Lake of 610 2 82 46 1.37 73.2 64.3 1
280 Ames - Palmer Plaza 1 239 47 1.29 70.0 44.1 1
281 Grogan's Forest Shopping Center 1 119 47 1.40 71.9 48.6 1
282 Bearden Place Shopping Center 3 117 45 1.30 72.6 59.3 1
283 56th Street Warehouse 2 190 46 1.26 67.8 NAP 1
284 Frys In-Line Space 1 119 47 1.37 75.1 66.1 1
285 2120 South Oak Park Ave 3 117 45 1.48 69.9 61.4 1
286 Shops on Cumberland 3 117 45 1.50 74.3 60.7 1
</TABLE>
* Refer to the sheet "Step" in the file named LB98C4.XLS contained in the back
cover of the Prospectus Supplement for detailed information on Monthly
Payments for the Mortgage Loan
<PAGE>
SCHEDULE C
FORM OF SCHEDULE OF EXCEPTIONS
TO MORTGAGE FILE DELIVERY
<PAGE>
Attn: Initial Certification
All Loans
LEHMAN BROTHERS (1011) Account: 500285
Pool: 285 Account Name: LB 1998-C4
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
MARKET AT CEDAR
HILL
RA54 $6,675,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SEVEN J INVESTMENTS,
LLC
RB27 $5,170,073.68
OK NOTE INSTRUMENT RECEIVED -REVIEWED 3510 - Copy only in file -
COPY OF NOTE ONLY 12/02/97
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
ST. LAWRENCE
ASSOCIATES LP
RB42 $4,220,389.52 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: CONSOLIDATION OF NOTES AGREEMENT
- ------------------------------------------------------------------------------------------------------------------------------------
NORVELL SUNSET, LLC
RJ58 $1,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/15/98
Doc Memo: WACHOVIA-LEHNAN & LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED 3510 - Copy only in file 10/08/98
- ------------------------------------------------------------------------------------------------------------------------------------
NORVELL DENVER LLC
RJ59 $1,550,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/11/98
Doc Memo: WACHOVIA-LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED 3510 - Copy only in file 10/08/98
- ------------------------------------------------------------------------------------------------------------------------------------
LITTLE PRAIRIE
CENTER, LLC
RJ69 $5,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: WARD COOK-LEHMAN & LEHMAN-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-1-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
NORVELL KINGS
MOUNTAIN LLC
RKO7 $1,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: WACHOVIA-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
NORVELL
STANLEY, LLC
RKO8 $1,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing -
LEHMAN-BLANK 10/15/98
Doc Memo: WACHOVIA-LEHMAN & LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CENTER II
ASSOCIATES
RL29 $3,680,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ARDSLEY
ASSOCIATES, L.L.C.
RM51 $5,125,912.43 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Dcc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MIDWEST PORTGAGE LP
RM58 $2,974,173.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
BERETANIA PROPERTY
INVESTMENTS, LLC
RM80 $3,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NEWPORT-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-2-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
PRESIDENT HOTEL
ASSOCIATES L.P.
RN61 $32,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo: THIS LOAN HAS AN AGGREGATE LOAN AMOUNT OF $32MM
THE "GAP" NOTE IS FOR $8,178,087.55. W/ADD'L GAP DOCS.
- ------------------------------------------------------------------------------------------------------------------------------------
OLD-VINE PINNACLE
ASSOCIATES LLC
RN66 $8,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FCRD OAKS, INC.
RP30 $5,000,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
YAHI LLC
RP85 $8,250,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
AMERICAN DEVELOPMENT
CORPORATION
RR31 $2,600,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
DIV PLAZA 114, LLC
RR38 $2,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
GATEWAY BUSINESS
CENTER LLC
RR57 $12,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-3-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
BOCAL CORPORATION
RR70 $2,250,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMRESI-LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
LAKE ARBOR
ASSOCIATES LLC
RR71 $3,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo: PROMISSORY NOTE IS ALONE IN THE FILE; ALL OTHER CUSTODIAL DOCUMENTS ARE MISSING AND ARE EXCEPTIONS.
- ------------------------------------------------------------------------------------------------------------------------------------
FOOTHILLS
ASSOCIATES LLC
RR72 $3,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/19/98
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CHENAULT CREEK
DEVELOPMENT ASSOC LP
RR79 $3,740,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND FINANCIAL TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MANSARDS APARTMENTS
L.P.
RR86 $46,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SAVANNAH SQUARE INC
RR88 $14,175,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NEWPORT-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-4-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SULLIVAN PROPERTIES, LP
RR94 $7,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo: THERE IS A GAP NOTE & MTG IN FILE.
- ------------------------------------------------------------------------------------------------------------------------------------
450 VILLAGE COMPANY
RR95 $5,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
DIXIE COMMERCE
CENTER, LTD.
RR96 $1,380,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
750 LLC
RS15 $4,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
S.O. PARTNERS, LLC
RS18 $2,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SIERRA CARMICHAEL
APARTMENTS, LLC
RS20 $1,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-5-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SLJ COMMERCE/
EXCHANGE, LTD
RS21 $3,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ARDEN REALTY
FINANCE IV, LLC
RS33 $111,200,000.00 ON HAND
DM ALLONGE NOT RECEIVED-NOT REVIEWED
Doc Memo: LEHMAN BROTHERS REALTY CORPORATION-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
LONE MOUNTAIN
CENTER LLC
RS36 $5,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BANC ONE-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
PALMA TERMINAL INC
RS42 $3,250,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
JERBIL, INC
RS46 $2,700,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
BEECHWOOD SOUTH, LTD.
RS47 $4,150,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
RIVERWALK PLAZA
JOINT VENTURE
RS48 $8,544,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-6-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo: THERE ARE SEVERAL NOTES IN THIS FILE
CONSOLIDATED, & FUTURE ADVANCE ALONG WITH ALL ORIGINAL NOTES (SEE TAB#33)
- ------------------------------------------------------------------------------------------------------------------------------------
WINSTON-SALEM
INVESTORS LLC
RS50 $14,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MILELLI REALTY
PARTNERS
RS51 $3,100,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMRESI-LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
LIBERTY SQUARE
ASSOCIATES LP
RS61 $4,100,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
WORTH INVESTMENTS LLC
RS62 $2,200,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
155 GAITHER DRIVE LLC
RS64 $1,680,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CLOVERLEAF SHOPPING
CTR. ASSOCIATES
RS65 $6,300,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NEWPORT-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-7-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
DEER PARK APARTMENTS
LLC
RS83 $1,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
HACIENDA APARTMENTS,
L.L.C.
RS84 $5,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SOUTH HILLS
ASSOCIATES, L.L.C.
RS85 $5,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ABOUT FACE
PROPERTIES LP
RS88 $750,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: MELLON-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ABOUT FACE
PROPERTIES LP
RS89 $600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: MELLON-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
201 FEDERAL ROAD
ASSOCIATES LLC
RS90 $2,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-8-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
TWIN LAKES
APARTMENTS LTD
RS95 $5,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMRESI-LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: RENEWAY AND CONSOLIDATION PROMISSORY NOTE
Memo: ORIGINAL FUTURE-ADVANCE PROMISSORY NOTE IN THE SUM OF $2,181,281.59 ALSO IN FILE.
- ------------------------------------------------------------------------------------------------------------------------------------
SOUTHGATE ASSOCIATES
RS96 $13,920,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo: THERE ARE 3 PROPERTIES TO THIS DEAL
SOUTHGATE SHOPPING PLAZA
WESTGATE PLAZA
ROCKY MOUNTAIN PLAZA
- ------------------------------------------------------------------------------------------------------------------------------------
FAIRWAY HOUSING
ASSOCIATES LLC
RT05 $1,950,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
579 WOLCOTT STREET
ASSOCIATES LLC
RT07 $1,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
428 TOLLAND TURNPIKE
ASSOCIATES LLC
RT08 $3,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-9-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
COLUMBIA HAVEN GROUP,
LLC C/O JRN
RT09 $1,909,482.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 3312 - Endorsement(s)
are missing or incorrect. 10/12/98
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
WARWICK INVESTORS I
RT13 $2,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
NEWPORT HISTORIC LLC
RT17 $2,925,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
NEWPORT COLONIAL, LLC
RTl8 $4,387,500.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
NBJ, INC.
RT19 $1,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MONROEVILLE
ASSOCIATES, LP
RT21 $4,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 3312 - Endorsement(s)
are missing or incorrect. 10/12/98
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
TRIPLE FOUR SAW
MILL LLC
RT30 $5,500,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: CONSOLIDATED, EXTENDED, AND RESTATEMENT OF NOTES AGREEMENT
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-10-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
JACKSONVILLE
APARTMENTS, LLC
RT37 $2,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
HEATHER RIDGE VILLAGE
SHOPPING CENTER
RT38 $2,300,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
RANCHO SAN MARCOS
PROPERTIES, LLC
RT39 $4,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CHMB LLC
RT40 $1,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMRESI-LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
GOLDEN OAK VILLAGE LP
RT41 $1,550,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: MELLON-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CLAREMONT AVION LLC
RT42 $18,100,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NEWPORT MORTGAGE TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-11-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
LKG PORT JEFFERSON,
LLC
RT44 $2,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMDW-LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: CONSOLIDATION OF NOTES AGREEMENT
Memo: THERE ARE 2 NOTES IN FILE.
1. PROMISSORY NOTE $2.2MM
2. MORTGAGE NOTE $1,202,002.96
- ------------------------------------------------------------------------------------------------------------------------------------
LG LINDENHURST
ASSOCIATES, LLC
RT45 $1,700,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMDW-LMMCC & LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo: THERE ARE 2 NOTES IN FILE
1. PROMISSORY NOTE $1.7mm
2. MORTGAGE NOTE $481.375.41
- ------------------------------------------------------------------------------------------------------------------------------------
CARO GROUP LLC
RT46 $1,776,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
D.P.L., LLC
RT48 $6,120,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: COLUMBUS BANK-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SKY FOUR REALTY LLC
RT51 $3,275,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMDW-LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-12-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
TRAILING VINE PLACE
LP
RT52 $3,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
RPI NEW YORK PLAZA
LTD
RT53 $3,500,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SOJ LLC
RT54 $2,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMRESI-LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
BONITA BAY
APARTMENTS LTD
RT55 $2,350,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SHARON LAKES, INC
RT56 $2,800,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMRESI-LMMCC & LMMCC-LEHMAN & LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MONTGOMERY MALL
ASSOCIATES LP
RT58 $47,750,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
OAK TREE INVESTMENT
LLC
RT60 $10,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-13-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CAPITOL VIEW URBAN
RENEWAL ASSOC LL
RT67 $4,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
RANDOLPH INVESTMENTS,
LLC
RT71 $2,800,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
1608 DEVELOPMENT
LIMITED PARTNERSHP
RT72 $3,750,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
VALSHOP, LLC.
RT75 $5,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
BPL-BAVA, LLC C/O
VELSOR PROPERTIES
RT76 $4,156,559.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
STERLING 18TH STREET,
LLC
RT77 $6,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-14-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
STERLING MILWAUKEE,
LLC
RT78 $1,450,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
STERLING WESTERN, LLC
RT79 $1,450,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -NOT REVIE
- ------------------------------------------------------------------------------------------------------------------------------------
STERLING ASHLAND, LLC
RT80 $2,175,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
STERLING OAK PARK, LLC
RT82 $700,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
11 EAST ADAMS LLC
RT83 $7,180,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
VERNON C. AND
EILEEN M. KOMPPA
RT84 $1,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK SIGNATURE MISSING
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-15-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
KWC LLC
RT86 $10,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
DAVENPORT APARTMENT
HOLDINGS, LLC
RU08 $4,950,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY TO BLANK (LEHMAN)
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
PPSF, LLC
RU11 $1,300,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing -
LAUREATE TO BLANK 10/05/98
Doc Memo: LAUREATE-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
PALMER PARKWAY, LLC
RU12 $3,800,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo: THERE ARE 2 NOTES/MTGS IN FILE
1. CONS. EXT. RESTMNT OF NOTES AGMNT $3.8MM
2. MTG NOTE (GAP) $1,424,000.00
- ------------------------------------------------------------------------------------------------------------------------------------
100 OAKS, LP
RU13 $27,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
GLEN ELLEN MOBILE
HOME PARK
RU14 $2,520,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BELGRAVIA-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-16-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
PINDLE EAST
ASSOCIATES, L.P.
RU32 $1,164,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CENTER GATE
PARTNERSHIP
RU34 $1,700,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: W. LYMAN CASE & COMPANY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CENTENNIAL MALL TIC,
LLC
RU37 $1,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
LION'S LAIR AT
GRASSEY KEY, LTD.
RU40 $1,300,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEGG MASON-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FALLON GARDEN CORP.
RU42 $8,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
REGAL POINTE, LTD.
RU43 $2,025,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-17-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
ARBOR RIDGE, LP
RU50 $9,770,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BELGRAVIA-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CHESTERFIELD MEADOWS
SHOPPING ASSOC
RU51 $6,900,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LAUREATE-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: LAUREATE-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
LUCKY INDUSTRIAL
PARK, LLC
RU52 $2,382,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY TO BLANK(LEHMAN)
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ZENITH, INC.
RU53 $1,975,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
OCEANSIDE-NIERMAN
OFFICE
RU59 $2,700,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
OCEANSIDE-NIERMAN LP
RU6O $3,900,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: INCLUDES ALLONGE TO BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-18-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
RED CIRCLE
HOSPITALITY CORP
RU61 $4,950,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
HUNTINGTON THEATER
ASSOCIATES, LLC
RU79 $6,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MILLBANK HOTEL
PARTNERS-LAUREL, LP
RU80 $3,800,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MILLBANK HOTEL
PARTNERS-ASHLAND
LTD
RU81 $3,975,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FOREST HILL-WD, LTD.
RU82 $5,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND FINANCIAL TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SMOKY HILL
CENTER, LTD
RU83 $2,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing
- NORTHLAND-BLANK 10/19/98
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-19-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
DCG INVESTORS 1993,
LP
RU84 $4,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 3313 - Endorsement(s) is
incomplete - WARD COOK TO 10/26/98
LEHMAN
Doc Memo: WARD COOK-LEHMAN & LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
555 SOUTH FRONT
STREET, LTD
RU85 $5,700,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CROYDON ASSOCIATES,
III LP
RU95 $13,700,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MORRELL PARK
ASSOCIATES
RU96 $3,050,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
BRIDGE-CAMERON
RIDGE, LLC
RU97 $3,300,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
KVBC INVESTMENTS,
L.L.C.
RU98 $5,645,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY FENOGLIO TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-20-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
POKRAS FAMILY LP
RU99 $3,350,000.00 ON HAND
CO ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/14/98
Doc Memo: HOLIDAY-BLANK
CO ALLONGE 3510 - Copy only in file -
COPY ONLY 10/14/98
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: ALLONGE IN FILE ENDORSED TO BLANK.
- ------------------------------------------------------------------------------------------------------------------------------------
RINCON DEL SAN JON
PROPERTIES
RV00 $1,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo:NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
TOWN ASSOCIATES, LP
RV02 $4,100,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
1996-COUNTRY CLUB,
LTD
RV03 $3,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
1996-STRATFORD
PLACE LTD
RV04 $3,050,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing
- HOLIDAY FENOGLIO TO 10/13/98
LEHMAN/LEHMAN TO BLANK
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
LANSING MARC, LLC
RV05 $12,350,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/16/98
Doc Memo: LEHMAN TO BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-21-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SHIP TO SHORE LLC
RV06 $2,650,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ANAHEIM SPRINGS L.L.C.
RV07 $1,680,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
NYLIND-COLUMBIA
DEVELOPMENT CO. LLC
RV08 $2,383,816.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/14/98
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
1441-47 WEST 70TH
AVENUE ASSOC.
RV12 $2,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing
- MISSING LMMCC-BLANK 10/16/98
(HAVE LMRESI-LMMCC)
Doc Memo: LMRESI-LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo:THERE ARE MULTIPLE BORROWERS
- ------------------------------------------------------------------------------------------------------------------------------------
SAINT THOMAS
PROPERTIES, L.L.C.
RV15 $7,750,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BELGRAVIA-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SPEEDWAY/KOLB
PROPERTIES, L.L.C.
RV16 S7,550,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BELGRAVIA-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-22-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FSF PRESIDENTIAL
ESTATES ASSOC., LLC
RV17 $8,050,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 3312 - Endorsement(s) are
missing or incorrect. 10/21/98
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
BUCKNER VILLAGE
APARTMENTS, LTD
RV18 $2,300,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY FENOGLIO TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
LA QUINTA PROPERTIES,
L.L.C.
RV19 $3,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BELGRAVIA TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
BRITTANY COURT
PROPERTIES, L.L.C.
RV20 $4,800,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BELGRAVIA TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
610 TECH CENTER
RV24 $1,100,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
KEEBLER CROSSING, LLC
RV27 $5,550,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-23-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
TROUTMAN PROPERTIES,
INC.
RV29 $1,368,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: COLUMBUS BANK TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
TROUTMAN PROPERTIES,
INC.
RV30 $1,720,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: COLUMBUS BANK TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ALSTON-ARMS
ASSOCIATES, L.P.
RV33 $3,686,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 3312 - Endorsement(s) are
missing or incorrect. 10/21/98
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ROCKWOOD PROPERTIES,
L.L.C.
RV34 $1,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MACARTHUR PROPERTIES,
LLC
RV35 $17,250,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: NOTE MODIFICATION, EXTENSION AND RESTATEMENT AGREEMENT
- ------------------------------------------------------------------------------------------------------------------------------------
CENTRES SAVANNAH LP
RV36 $2,440,922.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-24-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
GARGA REALTY, LLC
RV40 $10,377,575.00 ON HAND
DM ALLONGE NOT RECEIVED-NOT REVIEWED
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
LAUREL REALTY OF
ARIZONA, LLC
RV42 $1,575,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo:NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo:THIS FILE CONTAINS THE NOTE AND THE ALLONGE ONLY. ALL OTHER DOCUMENTS ARE MISSING.
- ------------------------------------------------------------------------------------------------------------------------------------
HUMBLE CENTRAL, LP
RV43 $1,550,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo:NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
DEERBROOK POINT, LP
RV44 $2,300,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SHOPPES OF AVON, LLC
RV46 $2,300,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FOREST VILLAGE LLC
RV47 $3,900,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo:THERE ARE 2 NOTES IN FILE.
1. GAP NOTE $2,669,670.10
2. CONSD.EXT.RESTMNT AGMNT $3.9MM
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-25-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
L'ATRIUM ON THE
CREEK I, LP
RV48 $9,300,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing
- NORTHLAND FINANCIAL 10/28/98
TO BLANK
Doc Memo: NORTHLAND FINANCIAL TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
TRICONY SARASOTA LTD.
RV49 $11,100,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMRESI-LMMCC & LMMCC TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo:ASSIGNMENT OF MANAGEMENT AGREEMENT ANTENNA SITE IS OK; MANAGEMENT AGREEMENT FOR ANTENNA SITE COPY
- ------------------------------------------------------------------------------------------------------------------------------------
RDP OF MICHIGAN,
L.L.C.
RV50 $1,281,016.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CONTEMP. VILL., LLC
RV51 $3,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MIDWEST HOSPITALITY
CORP
RV53 $2,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
DANIEL G KAMIN
CHRISTIANSBURG, LLC
RV55 $3,900,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 3313 - Endorsement(s) is
incomplete - HOLIDAY 10/14/98
FENOGLIO TO LEHMAN
Doc Memo: HOLIDAY-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-26-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SECURITY PUBLIC
STORAGE-SAN MATEO, L
RV57 $5,900,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BELGRAVIA TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CP/RP ROCKLAND
ASSOCIATES LP
RV58 $4,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY FENOGLIO TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: CONSOLIDATION OF NOTES AGREEMENT
- ------------------------------------------------------------------------------------------------------------------------------------
56TH STREET L.L.C.
RV59 $750,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY FENOGLIO TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
STAR PLAZA, L.L.C.
RV72 $3,082,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ONE NORTH PENN, LLC
RV73 $3,225,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/14/98
Doc Memo: LAUREATE-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CENTRES T. OAKS, LTD.
RV75 $3,412,721.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-27-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
WINDSTAR RETAIL
LIMITED PTNRSHP
RV76 $2,350,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
MIRAMONTE APARTMENTS,
LLC
RV77 $7,650,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CLAREMONT WELLINGTON,
LLC
RV78 $9,800,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing
- Newport-Blank 11/09/98
Doc Memo: NEWPORT-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FREE STATE STORAGE, LP
RV79 $1,550,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BELGRAVIA-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
PACIFICA ROSECRANS LP
RV80 $4,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BELGRAVIA TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
THE STATEN ISLAND
HOTEL LTD
RV85 $6,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-28-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
BVD DREAM JOINT
VENTURE
RV95 $1,625,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: MELLON MORTGAGE TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
HOSPITAL PROFESSIONAL
BUILDING II
RV96 $10,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
PINNACLE CITADEL, LLC
RV97 $5,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND FINANCIAL TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FLORIDA SPACE CENTER
RV98 $1,975,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BELGRAVIA-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
HOUSTON LAGUARDIA
PARTNERS
RV99 $1,425,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FOUNTAIN HILLS-OLD
VINE LP
RW00 $3,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND FINANCIAL TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-29-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
93 BROADWAY, LLC
RW01 $1,850,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing
- LEGG MASON TO BLANK 10/14/98
Doc Memo: LMDW-LMMCC & LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
THOMAS CENTER, LLC
RW02 $1,450,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/14/98
Doc Memo: LAUREATE-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
LANDVEGAS LP
RW04 $3,103,956.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
LANDBOWIE LP
RW05 $3,644,585.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CAROLEX, LLC
RW06 $2,530,034.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0700 - Signatures missing -
LAUREATE REALTY TO 11/09/98
BLANK
Doe Memo: LAUREATE REALTY TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
HAMPSHIRE PLACE
L.L.C.
RW07 $4,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing
- LMRESI-LMMCC IS 11/10/98
PHOTOCOPY (HAVE LMMCC-
BLANK=OK)
Doc Memo: LMRESI-LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -NOT REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-30-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
SOUTHGATE TOWERS LLC
RW11 $7,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
PARK AT MEMORIAL LP
RW12 $17,760, 000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 11/03/98
Doc Memo: NEWPORT-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
STUDIO INN, BAY ST.
LOUIS MS.LLC
RW19 $2,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NEWPORT MORTGAGE TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
RIVERCHASE LP
RW20 $2,928,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FOREST HILL PARK
APTS. LTD.
RW26 $1,640,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: MELLON MORTGAGE TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
HARTSTOWN VILLAGE
APTS. LTD.
RW27 $1,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: MELLON MORTGAGE TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-31-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
TAMPA GANDY, LLC
RW31 $6,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/14/98
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
GARDENDALE
DEVELOPMENT, LLP
RW33 $6,850,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LAUREATE-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
VALLEYDALE (5)
DEVELOPMENT, LLP
RW34 $5,700,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LAUREATE-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ALFRED N. MARULLI,
JR.
RW36 $2,137,500.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
GREENBRIER REAL
ESTATE INVESTMENT
RW37 $8,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
RIVERLAND DEVELOPMENT
COMPANY
RW38 $5,520,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND FINANCIAL TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-32-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
CANYON BENEVEST
UPLAND, LLC
RW39 $2,800,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0700 - Signatures missing -
NORTHLAND-BLANK 10/16/98
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
POA INVESTORS LLC
RW40 $2,050,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
STATEWIDE STORAGE
ANTIOCH
RW41 $2,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BELGRAVIA TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SUDSON STATE ROAD, LLC
RW45 $5,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
HIDDEN VALLEY
PARTNERS, LP
RW52 $2,825,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
GATOR RUE PARTNERS,
LTD
RW55 $2,480,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMRESI-LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-33-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
DC PARTNERS LLC
RW56 $2,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: HOLIDAY TO BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
PARK ROW EAST
APARTMENTS LTD
RW57 $3,150,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ORSETT/FOOTHILLS,
LLC
RW59 $5,150,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND FINANCIAL TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FSF KIRIWOOD
ASSOCIATES, LP
RW60 $4,800,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
TENNESSEE HOTEL
GROUP I, LP
RW6l $3,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing
- LAUREATE REALTY-BLANK 10/19/98
Doc Memo: LAUREATE-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
RIC GALESBURG TRUST
RW64 $2,646,619.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-34-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
BROOKMEADE PLAZA LLC
RW65 $1,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing
- LEGG MASON TO BLANK 10/16/98
Doc Memo: LMDW-LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
RIC MARION TRUST
RW67 $1,900,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
RIC WARSAW TRUST
RW68 $2,225,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
T.A.T. PROPERTY
RW70 $6,725,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: TWO: LEGG MASON DORMAN & WILSON TO LEGG MASON MORTGAGE CAPITAL
AND LEGG MASON MORTGAGE CAPITAL TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
GOVERNOR'S PARK, LLC
RW73 $1,300,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NEWPORT-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
NEWCASTLE MOTEL, INC.
RW74 $5,775,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LAUREATE-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-35-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
WRC ROLLING
MEADOWS, LP
RW75 $11,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
DANIEL G. KAMIN
WESTGATE, LLC
RW78 $2,150,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
DANIEL G. KAMIN
CLARKSVILLE CROSSIN
RW79 $2,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
OMNI BERKSHIRE CORP
& HCD DALLAS
RW85 $250,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: SECORE-RACER-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
PARK LAKE APARTMENTS,
INC.
RW86 $2,300,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ARVADA SQUARE
ASSOCIATES, LP
RW89 $1,825,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/14/98
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-36-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
GROGAN'S FOREST, LTD
RW93 $900,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY FENOGLIO FOWLER-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FSF SUNRIDGE
ASSOCIATES, LLC
RW94 $3,615,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ORANGEWOOD BUSINESS
PLAZA, LLC
RW95 $2,775,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
DANIEL G. KAMIN ROCK
SPRINGS, LLC
RW96 $1,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
DANIEL G KAMIN
PALMER, LLC
RX00 $1,050,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY FENOGLIO TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MANHATTAN BROOK ASSOCIATES
RX01 $3,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/11/98
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-37-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
ROGER BRADLEY REALTY
ASSOCIATES
RX02 $2,850,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/11/98
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo: 2 NOTES
1. CONS, EXT & RESTATMENT $2,850,000.00
2. PROMISSORY $2,850,000.00
- ------------------------------------------------------------------------------------------------------------------------------------
DANIEL G KAMIN
TACOMA, LLC
RX03 $2,100,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SUNRISE AVENUE, LP
RX06 $2,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0700 - Signatures missing 10/11/98
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
48TH AVENUE, LLC
RX07 $1,650,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/14/98
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
TILE PROPERTIES-
BATTLEFIELD, LLC
RX08 $1,800,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LAUREATE-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
VISTA PARK PARTNERS
RX13 $2,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-38-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
COUNTRY OAKS
APARTMENTS, LTD
RX14 $9,250,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
TRS @ PALM BAY INC.
RX15 $1,466,286.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
125 CANAL STREET CORP.
RX20 $3,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
PLAZA WEST STRIP LLC
RX21 $2,500,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
L & G TRI VALLEY, LLC
RX22 $710,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND FINANCIAL TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ALTON CIRCLE, LLC
RX23 $3,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-39-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
J.J. COURT
RX24 $5,360,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: TWO: WARD COOK TO LEHMAN & LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MERCHANT'S PLAZA AT
PONTE VERDA LTD
RX25 $2,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMRESI-LMMCC-LEHMAN
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo: 3 NOTES
1. CONSD RENEWAL FIXED $2MM
2. RENEWAL $1,855,970.44
3. FUTURE ADVANCE PROMISSORY $144,029.56
- ------------------------------------------------------------------------------------------------------------------------------------
GRANITE PROPERTIES
RX26 $1,300,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/11/98
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo: 2 NOTES
1. CONSD. EXT & RESTMNT $1.3MM
2. PROMISSORY $1.3
- ------------------------------------------------------------------------------------------------------------------------------------
ENSIGN 1998 INVESTMENTS
LIMITED PAR
RX27 $1,776,000.00 ON HAND
DM ALLONGE NOT RECEIVED-NOT REVIEWED 0702 - Document is missing
Doc Memo: WACHOVIA-BLANK OR LEHMAN
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
195 LLC
RX29 $6,560,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY FENOGLIO FOWLER TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-40-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
HALL OF FAME
MARINA INC
RX36 $3,400,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
OLD LAKE PLACE, LLC
RX40 $2,183,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY FENOGLIO FOWLER TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
THE FRANKLIN GROUP,
LLC
RX41 $3,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: BANKBOSTON TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
CASCADE LODGING, LLC
RX42 $4,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NEWPORT-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FULLERTON UNIVERSITY
SHOPPING CENTR
RX43 $8,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
PALACE GROUP, LLC
RX44 $1,375,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
KENNEDY BOULEVARD
ASSOCIATES 1, LP
RX46 $23,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-41-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
MZLTV, LTD
RX54 $1,850,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 3510 - Copy only in file 11/06/98
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED 3312 - Endorsement(s) are
missing or incorrect. - 10/08/98
HOLIDAY FENOGLIO TO LEHMAN/
LEHMAN TO BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
ELM & STATE
VENTURES, LLC
RX56 $2,050,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0700 - Signatures missing 11/06/98
Doc Memo: LAUREATE-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FERNDALE MOBIL HOME
VILLAGE, LLC
RX63 $1,297,500.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/15/98
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
FSF WOODMAN LASSEN
ASSOCIATES, LLC
RX64 $4,037,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
OAKWOOD TERRACE, LTD.
RX70 $1,750,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: NORTHLAND FINANCIAL TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
AVENTURA MEDICAL
PLAZA ASSOCIATES
RX71 $5,715,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY FENOGLIO FOWLER TO BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-42-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
G & I DANBURY, LLC
RX72 $17,700,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SECOND SULLY LP
RX74 $4,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0700 - Signatures missing -
LEHMAN TO BLANK 11/13/98
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
DANIEL G. KAMIN
GREENBRIAR, LLC
RX75 $3,700,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
WARWICK CORP.
RX76 $18,500,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED 3312 - Endorsement(s) are
missing or incorrect. - 11/12/98
LEHMAN TO BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
CIPRIANO SQUARE PLAZA
CORPORATION
RX88 $6,720,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: CONSOLIDATED, AMENDED AND RESTATED NOTE AGREEMENT IN FILE
- ------------------------------------------------------------------------------------------------------------------------------------
INLAND REAL ESTATE
LB I LLC
RX89 $54,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing
- LEHMAN-BLANK 10/21/98
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-43-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
BAYSIDE CENTER L.P.
RX91 $63,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing 10/21/98
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
BICKLEY ROAD
ASSOCIATES, LLC
RX95 $1,750,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
RD GRANDLAND LLC
RX96 $3,900,000.00 ON HAND
DM ALLONGE NOT RECEIVED-NOT REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
BURKE PLAZA
CORPORATION
RX97 $6,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
UNIVERSITY PLACE
PROPERTIES, LLC
RX99 $15,150,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: ALLONGE FROM HOLIDAY TO BLANK IN FILE
- ------------------------------------------------------------------------------------------------------------------------------------
NEWTON ASSOCIATES
RY02 $2,800,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing
- LAUREATE-BLANK 11/09/98
Doc Memo: LAUREATE-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
BCAP THUNDERBIRD
HOLDINGS, LLC
RY10 $3,100,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-44-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
RD MANATI, LP
RY11 $5,600,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
165TH STREET, INC.
RY15 $2,200,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
THE MILBURN HOTEL,
LLC
RY16 $15,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
GUILFORD VILLAGE WEST,
LLC
RYl7 $2,700,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
J & W GREENBAY, LLC
RYl9 $4,985,461.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
J & W LACROSSE, LLC
RY2l $3,650,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
LA SALA PINEBROOK
ASSSOCIATES, LP
RY22 $2,625,000.00 ON HAND
CO ALLONGE RECEIVED -REVIEWED 0700 - Signatures missing 11/13/98
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-45-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SOUTHEAST PARTNERS
RY23 $2,830,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 3510 - Copy only in file 11/12/98
Doc Memo: LEHMAN TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
SOUTHEAST PARTNERS
RY24 $1,450,000.00 ON HAND
DM ALLONGE NOT RECEIVED-NOT REVIEWED
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
JWH JOLIET, LLC
RY29 $3,199,473.10 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LEHMAN-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
WEST FLAGLER
PARTNERS, LTD
RY33 $2,175,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: LMRESI-LMMCC-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
ONTARIO MILLS LP
RY92 $145,000,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED 0702 - Document is missing
- LEHMAN-BLANK 11/13/98
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
GRANT VILLAGE
APARTMENTS, LLC
RV21- $2,621,537.34 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Memo: ALL MORTGAGE DOCUMENTS FOR THIS LOAN ARE CONSOLIDATED WITH LOAN NO. RV21A. THE MORTGAGE SECURING
THIS NOTE IS THE 7.350 MILLION CONSOLIDATION, MODIFICATION, SPREADER AND EXTENSION AGREEMENT TO
BE FOUND IN RV21A
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-46-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
IKE'S CAT, LLC
RV21A $4,728,462.66 ON HAND
DM ALLONGE NOT RECEIVED-NOT REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: CONSOLIDATION, EXTENSION AND RESTATEMENT OF NOTES AGREEMENT
- ------------------------------------------------------------------------------------------------------------------------------------
FRESNO LIMITED
PARTNERSHIP
FRESNO $69,000,000.00 ON HAND
OK NOTE INSTRUMENT RECEIVED -REVIEWED 3312 - Endorsement(s) are
missing or incorrect. - 10/06/98
Missing endorsement from
Secore to the Trust.
OK NOTE INSTRUMENT 3510 - Copy only in file 10/06/98
- ------------------------------------------------------------------------------------------------------------------------------------
ACWORTH DUE WEST
ASSOCIATES LLC
970319003 $5,100,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY FENOGLIO TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: file contains Allonge from Holliday Fenoglio to blank
- ------------------------------------------------------------------------------------------------------------------------------------
RODIN MARKET PARTNERS
970820022 $17,625,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY FENOGLIO TO BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
- ------------------------------------------------------------------------------------------------------------------------------------
HUNTINGTON POINTE LLC
HUNTINGTON $4,850,000.00 ON HAND
OK ALLONGE RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
OK NOTE INSTRUMENT RECEIVED -REVIEWED
Doc Memo: HOLIDAY-BLANK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-47-
<PAGE>
<TABLE>
<CAPTION>
Borrower Name/ Loan Status/
Loan Number Loan Amount Doc Cond Code Document Document Status Exception Item Cleared
----------- ----------- ------------- -------- --------------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
285 $2,028,397,553.73
</TABLE>
LASALLE NATIONAL BANK Account Name: LB 1998-C4
Report: POOL CERTIFICATION STATUS REPORT Run By: LIPPS 11/24/98
Set/Report/Ver: MAIN / CL01/ X 12:17 pm
-48-
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
________, 19__
LaSalle National Bank, as Trustee
135 South LaSalle Street
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities Trust Services
Group-LB Commercial Mortgage Trust, Series 1998-C4
Re: LB Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1998-C4
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of November 1, 1998 (the "Pooling and Servicing Agreement"),
by and among Structured Asset Securities Corporation as depositor, the
undersigned as master servicer (the "Master Servicer"), Lennar Partners, Inc. as
special servicer, ABN AMRO Bank N.V. as fiscal agent, and you as trustee (the
"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 undersigned hereby
certifies that all amounts received in connection with
the Mortgage Loan that are required to be credited to
the Custodial Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe)
<PAGE>
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 File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
FIRST UNION NATIONAL BANK
By:____________________________________
Name:__________________________________
Title:_________________________________
D-1-2
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
___________, 19__
LaSalle National Bank, as Trustee
135 South LaSalle Street
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities Trust Services
Group-LB Commercial Mortgage Trust, Series 1998-C4
Re: LB Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 1998-C4
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of November 1, 1998 (the "Pooling and Servicing Agreement"),
by and among Structured Asset Securities Corporation as depositor, First Union
National Bank as master servicer (the "Master Servicer"), the undersigned as
special servicer (the "Special Servicer"), ABN AMRO Bank N.V. as fiscal agent,
and you as trustee (the "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. The Mortgage Loan paid in full. The undersigned hereby
certifies that all amounts received in connection with
the Mortgage Loan that are required to be credited to
the Custodial Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe)
<PAGE>
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 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.
LENNAR PARTNERS, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
D-2-2
<PAGE>
EXHIBIT E
CALCULATION OF NOI/DEBT SERVICE COVERAGE RATIOS
1. With respect to any Mortgaged Property, "Net Operating Income" or "NOI"
shall mean for each fiscal year or portion thereof, the related Revenue
allocable to such period, less (i) the related Expenses allocable to such
period, and (ii) any related Reserves for such period.
With respect to any Mortgaged Property, "Revenue" shall mean, for
each fiscal year or portion thereof, all revenue derived by the related
Mortgagor arising from the Mortgaged Property, including, without limitation,
rental revenues (whether denominated as basic rent, additional rent, percentage
rent, escalation payments, electrical payments or otherwise) and other fees and
charges payable pursuant to leases or otherwise in connection with the Mortgaged
Property, and rent insurance proceeds; provided that Revenue shall not include
(a) insurance proceeds (other than proceeds of business interruption or other
similar insurance allocable to the applicable period) and condemnation awards
(other than awards arising from a temporary taking or the use and occupancy of
all or part of the applicable Mortgaged Property allocable to the applicable
period), or interest accrued on such proceeds or awards, (b) proceeds of any
financing, (c) proceeds of any sale, exchange or transfer of the Mortgaged
Property or any part thereof or interest therein, (d) capital contributions or
loans to the Mortgagor or an Affiliate of the Mortgagor, (e) any item of income
otherwise includible in Revenue but paid directly by any tenant to a Person
other than the Mortgagor except for real estate taxes paid directly to any
taxing authority by any tenant, (f) any other extraordinary, non-recurring
revenues, (g) rent paid by or on behalf of any lessee under a space lease which
is the subject of any proceeding or action relating to its bankruptcy,
reorganization or other arrangement pursuant to federal bankruptcy law or any
similar federal or state law or which has been adjudicated a bankrupt or
insolvent, unless such space lease has been affirmed by the trustee in such
proceeding or action, or (h) rent paid by or on behalf of any lessee under a
space lease the demised premises of which are not occupied either by such lessee
or by a sublessee thereof; and provided, further, that Revenue shall be adjusted
to account for vacancies and credit losses as and to the extent contemplated in
the Prospectus Supplement dated November 17, 1998 relating to LB Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 1998-C4.
With respect to any Mortgaged Property, "Expenses" shall mean, for
each fiscal year or portion thereof, all expenses directly attributable to the
operation, repair and/or maintenance of the Mortgaged Property, including,
without limitation, tenant improvement costs, leasing commissions, impositions,
insurance premiums, real estate taxes, management fees, advertising, payments to
third party suppliers, and costs attributable to the operation, repair and
maintenance of the systems for heating, ventilating and air conditioning, and
(except in the case of real estate taxes) actually paid for by the Mortgagor;
provided that (a) Expenses shall not include any of the foregoing items for
which Reserves had been escrowed, which Reserves had been taken into account in
calculating the NOI for such period or any prior period; (b) Expenses shall not
include interest, principal and premium, if any, due under the Mortgage Note or
otherwise in connection with any other secured indebtedness, income taxes,
extraordinary capital improvements costs, or any non-cash
<PAGE>
charge or expense such as depreciation and (c) notwithstanding the preceding
clause (b), in the case of the Mortgaged Property that secures the Mortgage Loan
identified on the Mortgage Loan Schedule as "Bayside", Expenses shall be
increased by the amount of debt service payments (interest, principal and
premium, if any) and escrow, reserve or other similar payments or deposits due
or otherwise required to be made under or with respect to the indebtedness owed
by the related Mortgagor in favor of the City of Miami, Florida, and secured by
a lien on the parking garage portion of such Mortgaged Property.
Revenues and Expenses shall be calculated based on financial
statements, Mortgagor tax returns and/or rent rolls, in each case to the extent
appropriate and consistent with the Servicing Standard.
With respect to any Mortgaged Property, "Reserves" shall mean, for
each fiscal year or portion thereof, all replacement reserves and/or reserves
for tenant improvements and leasing commissions escrowed during such period.
2. With respect to any Mortgaged Property "Debt Service Coverage Ratio"
shall mean, for each fiscal year or portion (not less than three months)
thereof, without regard to any cross-collateralization feature of the related
Mortgage Loan, the ratio of (x) the Net Operating Income (before payment of any
debt service on the related Mortgage Loan) generated by such Mortgaged Property
(such Net Operating Income to be annualized if the relevant period is less than
twelve months) to (y) the product of the amount of the Monthly Payment in effect
for such Mortgage Loan as of any date of determination, multiplied by 12.
E-1-2
<PAGE>
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_____________, 19__
LaSalle National Bank, as Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities Trust Services Group-
LB Commercial Mortgage Trust, Series 1998-C4
Re: LB Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1998-C4, Class __,
[having an initial aggregate Certificate Principal
Balance as of November 24, 1998 (the "Closing Date")
of $__________] [representing a ___% Percentage
Interest in the related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
___________________ (the "Transferor") to _____________________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of November 1, 1998, among
Structured Asset Securities Corporation, as Depositor, First Union National
Bank, as Master Servicer, Lennar Partners, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security
<PAGE>
with any person in any manner, (d) made any general solicitation with
respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security by means of general advertising
or in any other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"Securities Act"), would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state
securities laws.
Very truly yours,
_______________________________________
(Transeror)
By:____________________________________
Name:_______________________________
Title:______________________________
F-1-2
<PAGE>
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_____________, 19__
LaSalle National Bank, as Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities Trust Services Group-
LB Commercial Mortgage Trust, Series 1998-C4
Re: LB Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1998-C4, Class__,
[having an initial aggregate Certificate Principal
Balance as of November 24, 1998 (the "Closing Date")
of $__________] [representing a ___% Percentage
Interest in the related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
___________________ (the "Transferor") to _____________________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of November 1, 1998, among
Structured Asset Securities Corporation, as Depositor, First Union National
Bank, as Master Servicer, Lennar Partners, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
is being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the Securities Act.
<PAGE>
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificates, and (f) all related matters, that it has
requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
F-2A-2
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
_______________________________________
(Nominee)
By:____________________________________
Name:_______________________________
Title:______________________________
F-2A-3
<PAGE>
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) [the Transferee] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________(1) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16
- ----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-2A-4
<PAGE>
months preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding such
date of sale in the case of a foreign bank or equivalent
institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision over
any such institutions, or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
F-2A-5
<PAGE>
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such person is a dealer, (iii) bank deposit notes and certificates
of deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
F-2A-6
<PAGE>
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
F-2A-7
<PAGE>
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
F-2A-8
<PAGE>
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ _____
Yes No Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
F-2A-9
<PAGE>
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
_______________________________________
Print Name of Transferee or Adviser
By:____________________________________
Name:_______________________________
Title:______________________________
IF AN ADVISER:
_______________________________________
Print Name of Transferee
Date:__________________________________
F-2A-10
<PAGE>
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_____________, 19__
LaSalle National Bank, as Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities Trust Services Group-
LB Commercial Mortgage Trust, Series 1998-C4
Re: LB Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1998-C4, Class __,
[having an initial aggregate Certificate Principal
Balance as of November 24, 1998 (the "Closing Date")
of $__________] [representing a ___% Percentage
Interest in the related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
___________________ (the "Transferor") to _____________________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of November 1, 1998, among
Structured Asset Securities Corporation, as Depositor, First Union National
Bank, as Master Servicer, Lennar Partners, Inc., as Special Servicer, LaSalle
National Bank, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Trustee is obligated so to register or qualify the Transferred
Certificates and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred
<PAGE>
in a transaction which is exempt from such registration and qualification and
the Certificate Registrar has received (A) a certificate from the prospective
transferor substantially in the form attached as Exhibit F-1 to the Pooling and
Servicing Agreement and a certificate from the prospective transferee
substantially in the form attached either as Exhibit F-2A or Exhibit F-2B to the
Pooling and Servicing Agreement, or (B) an Opinion of Counsel satisfactory to
the Certificate Registrar that the transfer may be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding the transfer from the prospective transferor and/or
prospective transferee upon which such Opinion of Counsel is based.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN
A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION
AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A)
ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a
F-2B-2
<PAGE>
distribution of the Transferred Certificates under the Securities Act, would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities law or would require registration
or qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized nor will it authorize any person
to act, in any manner set forth in the foregoing sentence with respect to the
Transferred Certificates, any interest in the Transferred Certificates or any
other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners 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 an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
F-2B-3
<PAGE>
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
_______________________________________
(Nominee)
By:____________________________________
Name:__________________________________
Title:_________________________________
F-2B-4
<PAGE>
EXHIBIT F-2C
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY NON-REGISTERED CERTIFICATES
____________, 19__
[TRANSFEROR]
Re: LB Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1998-C4, Class __,
[having an initial aggregate Certificate Principal
Balance as of November 24, 1998 (the "Closing Date")
of $__________] [representing a ___% Percentage
Interest in the related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to
__________________________________________ (the "Transferee") through our
respective Depository Participants of the Transferor's beneficial ownership
interest (currently maintained on the books and records of The Depository Trust
Corporation ("DTC") and the Depository Participants) in the captioned
Certificates (the "Transferred Certificates"), which were issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of November 1, 1998, among Structured Asset Securities Corporation, as
Depositor, First Union National Bank, as Master Servicer, Lennar Partners, Inc.
as Special Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V.,
as Fiscal Agent. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to and
agrees with you, and for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act") and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it of the Transferor's
interest in the Transferred Certificates is being made in reliance on Rule 144A.
The Transferee is acquiring such interest in the Transferred Certificates for
its own account or for the account of another Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates have
not been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee or the Certificate Registrar is obligated so to register or qualify
the Transferred Certificates and (c) no interest in the Transferred Certificates
may be resold or transferred unless (i) such Certificates are registered
pursuant to the Securities Act and
<PAGE>
registered or qualified pursuant any applicable state securities laws, or (ii)
such interest is sold or transferred in a transaction which is exempt from such
registration and qualification and the Certificate Owner desiring to effect such
transfer has received (A) a certificate from such Certificate Owner's
prospective transferee substantially in the form attached either as Exhibit F-2C
or as Exhibit F-2D to the Pooling and Servicing Agreement or (B) an opinion of
counsel to the effect that such transfer may be made without registration under
the Securities Act.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates or any interest therein except in compliance with
the provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A)
ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
F-2C-2
<PAGE>
4. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
the nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
F-2C-3
<PAGE>
ANNEX 1 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and for the benefit of Structured Asset Securities Corporation
with respect to the mortgage pass-through certificates being transferred in
book-entry form (the "Transferred Certificates") as described in the Transferee
certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) [the Transferee] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________(1) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
- ----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-2C-4
<PAGE>
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)______________________________________________________
____________________________________________________________________
____________________________________________________________________
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such person is a dealer, (iii) bank deposit notes and certificates
of deposit, (iv) loan
F-2C-5
<PAGE>
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
F-2C-6
<PAGE>
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
F-2C-7
<PAGE>
ANNEX 2 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Structured Asset Securities
Corporation with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A"), because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
F-2C-8
<PAGE>
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
_______________________________________
Print Name of Transferee or Adviser
By:____________________________________
Name:_______________________________
Title:______________________________
IF AN ADVISER:
_______________________________________
Print Name of Transferee
Date:__________________________________
F-2C-9
<PAGE>
EXHIBIT F-2D
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN BOOK-ENTRY PRIVATE CERTIFICATES
____________, 19__
[TRANSFEROR]
Re: LB Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 1998-C4, Class __, [having an initial
aggregate Certificate Principal Balance as of November 24,
1998 (the "Closing Date") of $__________] [representing a ___%
Percentage Interest in the related Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to
__________________________________________ (the "Transferee") through our
respective Depository Participants of the Transferor's beneficial ownership
interest (currently maintained on the books and records of The Depository Trust
Corporation ("DTC") and the Depository Participants) in the captioned
Certificates (the "Transferred Certificates"), which were issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of November 1, 1998, among Structured Asset Securities Corporation, as
Depositor, First Union National Bank, as Master Servicer, Lennar Partners, Inc.
as Special Servicer, LaSalle National Bank, as Trustee, and ABN AMRO Bank N.V.,
as Fiscal Agent. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to and
agrees with you, and for the benefit of the Depositor, that:
1. The Transferee is acquiring the Transferor's beneficial ownership
interest in the Transferred Certificates for its own account for investment and
not with a view to or for sale or transfer in connection with any distribution
thereof, in whole or in part, in any manner which would violate the Securities
Act of 1933, as amended (the "Securities Act"), or any applicable state
securities laws.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or registered
or qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to register
or qualify the Transferred Certificates, and (c) no interest in the Transferred
Certificates may be resold or transferred unless (i) such Certificates are
registered pursuant to the Securities Act and registered or qualified pursuant
any applicable state securities laws, or (ii) such interest is sold or
transferred in a transaction which is exempt from such registration and
qualification and the Certificate Owner desiring to effect such transfer has
received (A) a certificate from such Certificate
<PAGE>
Owner's prospective transferee substantially in the form attached either as
Exhibit F-2C or as Exhibit F-2D to the Pooling and Servicing Agreement or (B) an
opinion of counsel to the effect that such transfer may be made without
registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates or any interest therein except in compliance with
the provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A)
ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security by means of general advertising or in
any other manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the Securities Act, would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person
F-2D-2
<PAGE>
to act, in any manner set forth in the foregoing sentence with respect to the
Transferred Certificates, any interest in the Transferred Certificates or any
other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
the nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificates; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:_______________________________
Title:______________________________
F-2D-3
<PAGE>
EXHIBIT G-1
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE SUBORDINATED CERTIFICATES)
[Date]
LaSalle National Bank, as Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities Trust Services
Group-LB Commercial Mortgage Trust, Series 1998-C4
Re: LB Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1998-C4 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate Certificate Principal
Balance as of November 24, 1998 (the "Closing Date") of $__________] [evidencing
a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of November 1, 1998, among Structured Asset
Securities Corporation, as depositor, First Union National Bank as master
servicer, Lennar Partners, Inc. as special servicer, LaSalle National Bank as
trustee and ABN AMRO Bank N.V. as fiscal agent. All capitalized terms used but
not otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you as Certificate Registrar, as follows (check the applicable
paragraph):
___ The Transferee (A) is not an employee benefit plan or other retirement
arrangement, including an individual retirement account or annuity, a
Keogh plan or a collective investment fund or separate account in which
such plans, accounts or arrangements are invested, including, without
limitation, an insurance company general account, that is subject to ERISA
or the Code (each, a "Plan"), and (B) is not directly or indirectly
purchasing the Transferred Certificates on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or
<PAGE>
___ The Transferee is using funds from an insurance company general account to
acquire the Transferred Certificates, however, the purchase and holding of
such Certificates by such Person is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under
Sections I and III of Prohibited Transaction Class Exemption 95-60.
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:
Title:
G-1-2
<PAGE>
EXHIBIT G-2
FORM II OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(BOOK-ENTRY NON-REGISTERED CERTIFICATES)
[Date]
[TRANSFEROR]
Re: LB Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 1998-C4 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in
Class ___ Certificates [having an initial aggregate Certificate Principal
Balance as of November 24, 1998 (the "Closing Date") of $__________] [evidencing
a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of November 1,
1998 (the "Pooling and Servicing Agreement"), among Structured Asset Securities
Corporation, as depositor, First Union National Bank as master servicer, Lennar
Partners, Inc. as special servicer, LaSalle National Bank as trustee and ABN
AMRO Bank N.V. as fiscal agent. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you as follows (check the applicable paragraph):
___ The Transferee (A) is not an employee benefit plan or other retirement
arrangement, including an individual retirement account or annuity, a
Keogh plan or a collective investment fund or separate account in which
such plans, accounts or arrangements are invested, including, without
limitation, an insurance company general account, that is subject to ERISA
or the Code (each, a "Plan"), and (B) is not directly or indirectly
purchasing an interest in the Transferred Certificates on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan;
<PAGE>
___ The Transferee is using funds from an insurance company general account to
acquire an interest in the Transferred Certificates, however, the purchase
and holding of such interest by such Person is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the
Code under Sections I and III of Prohibited Transaction Class Exemption
95-60; or
Very truly yours,
_______________________________________
(Transferee)
By:____________________________________
Name:
Title:
G-2-2
<PAGE>
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of LB Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 1998-C4, Class [R-I]
[R-II] [R-III], evidencing a ____% Percentage Interest in such Class (the
"Residual Interest Certificates")), a ________________________ duly organized
and validly existing under the laws of ____________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement pursuant to which the Residual Interest Certificates were
issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Interest Certificates, and (ii) is acquiring
the Residual Interest Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Permitted Transferee" is any
Person other than a "disqualified organization" or a "non-United States person".
(For this purpose, a "disqualified organization" means (i) the United States or
a possession thereof, any State or any political subdivision thereof, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of its board of
directors is not selected by any such governmental unit), (ii) a foreign
government, international organization, or any agency or instrumentality of
either of the foregoing, (iii) any organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), or
(iv) rural electric and telephone cooperatives described in Section 1381 of the
Code. The terms "United States", "State" and "international organization" shall
have the meanings set forth in Section 7701 of the Code or successor
provisions.)
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Interest Certificates to "disqualified organizations"
under the Code that applies to all transfers of the Residual Interest
Certificates; (ii) that such tax would be on the transferor or, if such transfer
is through an agent (which Person includes a broker, nominee or middleman) for a
non-
<PAGE>
Permitted Transferee, on the agent; (iii) that the Person otherwise liable for
the tax shall be relieved of liability for the tax if the transferee furnishes
to such Person an affidavit that the transferee is a Permitted Transferee and,
at the time of transfer, such Person does not have actual knowledge that the
affidavit is false; and (iv) that the Residual Interest Certificates may be a
"noneconomic residual interest" within the meaning of Treasury regulation
Section 1.860E-1(c) and that the transferor of a "noneconomic residual interest"
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer is to enable the
transferor to impede the assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Interest Certificates if at any time during the
taxable year of the pass-through entity a non-Permitted Transferee is the record
holder of an interest in such entity. (For this purpose, a "pass-through entity"
includes a regulated investment company, a real estate investment trust or
common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Interest Certificates by the Transferee
unless the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Interest Certificate will
only be owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _____________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Interest Certificates (in particular, clause (ii)(A) of
Section 5.02(d) which authorizes the Trustee to deliver payments on the Residual
Interest Certificate to a Person other than the Transferee and clause (ii)(B) of
Section 5.02(d) which authorizes the Trustee to negotiate a mandatory
disposition of the Residual Interest Certificates, in either case, in the event
that the Transferee holds such Residual Interest Certificates in violation of
Section 5.02(d)); and the Transferee expressly agrees to be bound by and to
comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale
of the Residual Interest Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Interest Certificates as they become due, fully understanding that
it may incur tax liabilities in excess of any cash flows generated by the
Residual Interest Certificates.
H-1-2
<PAGE>
11. The Transferee will, in connection with any transfer that it
makes of the Residual Interest Certificates, deliver to the Certificate
Registrar a representation letter substantially in the form of Exhibit H-2 to
the Pooling and Servicing Agreement in which it will represent and warrant,
among other things, that it is not transferring the Residual Interest
Certificates to impede the assessment or collection of any tax and that it has
at the time of such transfer conducted a reasonable investigation of the
financial condition of the proposed transferee as contemplated by Treasury
regulation Section 1.860E-1(c)(4)(i) and has satisfied the requirements of such
provision.
12. The Transferee is a "United States person". A "United States
person" is a citizen or resident of the United States, a corporation, a
partnership or other entity created or organized in, or under the laws of, the
United States or any political subdivision thereof, or an estate whose income
from sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States, or a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code.
H-1-3
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this ____ day of _____, ____.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above-named ____________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the ____________________ 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 __________________,
_____.
_______________________________________
NOTARY PUBLIC
COUNTY OF _________
STATE OF __________
My Commission expires the _________
day of ___________, 19__.
H-1-4
<PAGE>
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING RESIDUAL INTEREST CERTIFICATES
[Date]
LaSalle National Bank, as Certificate Registrar
135 South LaSalle Street
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities Trust Services
Group-LB Commercial Mortgage Trust, Series 1998-C4
Re: Lehman Brothers Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 1998-C4 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Interest Certificates"). The
Certificates, including the Residual Interest Certificates, were issued pursuant
to the Pooling and Servicing Agreement, dated as of November 1, 1998 (the
"Pooling and Servicing Agreement"), among Structured Asset Securities
Corporation, as depositor, First Union National Bank as master servicer, Lennar
Partners, Inc. as special servicer, LaSalle National Bank as trustee and ABN
AMRO Bank N.V. as fiscal agent. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Interest Certificates by the Transferor to the Transferee is or will be
to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit H-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence
<PAGE>
to indicate that the Transferee will not continue to pay its debts as they
become due in the future. The Transferor understands that the transfer of the
Residual Interest Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
_______________________________________
(Transferor)
By:____________________________________
Name:__________________________________
Title:_________________________________
H-2-2
<PAGE>
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
Moody's Investors Service, Inc.
99 Church Street, 4th Floor
New York, New York 10007
Attention: Commercial Mortgage Surveillance
Standard & Poor's Ratings Services,
a Division of the McGraw-Hill Companies, Inc.
25 Broadway
New York, New York 10004
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling and
Servicing Agreement, dated as of November 1, 1998 and relating to LB Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 1998-C4
(the "Agreement"). Capitalized terms used but not otherwise defined herein shall
have respective meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
________________ to serve as the Special Servicer under the Agreement.
The designation of __________________ as Special Servicer will become
final if certain conditions are met and you deliver to _________________, the
trustee under the Agreement (the "Trustee"), written confirmation that if the
person designated to become the Special Servicer were to serve as such, such
event would not result in the qualification, downgrade or withdrawal of the
rating or ratings assigned by you to one or more Classes of the Certificates.
Accordingly, such confirmation is hereby requested as soon as possible.
<PAGE>
Please acknowledge receipt of this notice by signing the enclosed copy of
this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
LASALLE NATIONAL BANK,
as Trustee
By:____________________________________
Name:
Title:
Receipt acknowledged:
MOODY'S INVESTORS SERVICE, INC.
By: ________________________________
Name:
Title:
Date:
STANDARD & POOR'S RATINGS SERVICES,
A DIVISION OF THE MCGRAW-HILL COMPANIES, INC.
By: ________________________________
Name:
Title:
Date:
I-1-2
<PAGE>
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
[REMIC ADMINISTRATOR]
Re: LB Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1998-C4
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement, dated as
of November 1, 1998, relating to LB Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 1998-C4 (the "Agreement"), the
undersigned hereby agrees with all the other parties to the Agreement that the
undersigned shall serve as Special Servicer under, and as defined in, the
Agreement. The undersigned hereby acknowledges that, as of the date hereof, it
is and shall be a party to the Agreement and bound thereby to the full extent
indicated therein in the capacity of Special Servicer. The undersigned hereby
makes, as of the date hereof, the representations and warranties set forth in
Section 3.24 of the Agreement, with the following corrections with respect to
type of entity and jurisdiction of organization: ____________________.
_______________________________________
By:____________________________________
Name:
Title:
<PAGE>
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
<PAGE>
Schedule 1 to Exhibit J.
This Schedule 1 is attached to and incorporated in a financing
statement pertaining to Structured Asset Securities Corporation as depositor
(referred to as the "Debtor" for the purpose of this financing statement only),
and LaSalle National Bank as trustee for the holders of the Debtor's Mortgage
Pass-Through Certificates, Series 1998-C4 (referred to as the "Secured Party"
for purposes of this financing statement only), under that certain Pooling and
Servicing Agreement, dated as of November 1, 1998 (the "Pooling and Servicing
Agreement"), among the Debtor as depositor, the Secured Party as trustee, First
Union National Bank as master servicer (the "Master Servicer"), Lennar Partners,
Inc. as special servicer (the "Special Servicer"), and ABN AMRO Bank N.V., as
fiscal agent (the "Fiscal Agent"), relating to the issuance of the Debtor's
Commercial Mortgage Pass-Through Certificates, Series 1998-C4 (collectively, the
"Series 1998-C4 Certificates"). Capitalized terms used herein and not defined
shall have the respective meanings given to them in the Pooling and Servicing
Agreement.
The attached financing statement covers all of the Debtor's right
(including the power to convey title thereto), title and interest in and to the
Trust Fund created pursuant to the Pooling and Servicing Agreement, consisting
of the following:
(1) the mortgage loans (the "Mortgage Loans") listed on the Mortgage
Loan Schedule attached hereto as Exhibit A;
(2) the note or other evidence of indebtedness (the "Mortgage Note")
of the related borrower (the "Mortgagor") under each Mortgage Loan, the related
mortgage, deed of trust or other similar instrument securing such Mortgage Note
(the "Mortgage") and each other legal, credit and servicing document related to
such Mortgage Loan (collectively with the related Mortgage Note and Mortgage,
the "Mortgage Loan Documents");
(3) (a) the Custodial Account required to be maintained by the
Master Servicer pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Custodial Account, (c) the investments of
any such funds consisting of securities, instruments or other obligations, and
(d) the general intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from or under
any such investments;
(4) All REO Property acquired in respect of defaulted Mortgage
Loans;
(5) (a) the REO Account required to be maintained by the Special
Servicer pursuant to the Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the REO Account, (c) the investments of any such
funds consisting of securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and interest and the
right to enforce the related payment obligations, arising from or under any such
investments;
<PAGE>
(6) (a) the Servicing Account(s) and Reserve Account(s) required to
be maintained by the Master Servicer and/or the Special Servicer pursuant to the
Pooling and Servicing Agreement, and (b) all funds from time to time on deposit
in the Servicing Account(s) and Reserve Account(s);
(7) (a) the Collection Account required to be maintained by the
Secured Party pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Collection Account, (c) the investments of
any such funds consisting of securities, instruments or other obligations, and
(d) the general intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from or under
any such investments;
(8) All insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be maintained
pursuant to the Mortgage Loan Documents and the Pooling and Servicing Agreement,
transferred to the Trustee and to be serviced by the Master Servicer or Special
Servicer pursuant to the Pooling and Servicing Agreement;
(9) any and all general intangibles (as defined in the Uniform
Commercial Code) consisting of, arising from or relating to any of the
foregoing; and
(10) any and all income, payments, proceeds and products of any of
the foregoing.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF ALL THE DEBTOR'S RIGHT,
TITLE AND INTEREST IN, TO AND UNDER THE MORTGAGE LOANS, THE MORTGAGE NOTES, THE
RELATED MORTGAGES AND THE OTHER RELATED MORTGAGE LOAN DOCUMENTS EVIDENCED BY THE
SERIES 1998-C1 CERTIFICATES, AND THIS FILING SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT A SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN
INSTRUMENT WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN
ANY APPLICABLE JURISDICTION, OR THAT A FILING IS NECESSARY TO PERFECT THE
OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY WITH RESPECT TO THE MORTGAGE
LOANS OR IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER MORTGAGE LOAN DOCUMENT. IN
ADDITION, THE REFERENCES HEREIN TO SECURITIES, INSTRUMENTS AND OTHER OBLIGATIONS
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY SUCH SECURITY, INSTRUMENT OR
OTHER OBLIGATION IS NOT AN INSTRUMENT, A CERTIFICATED SECURITY OR AN
UNCERTIFICATED SECURITY WITHIN THE
2
<PAGE>
MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE
JURISDICTION, NOR SHOULD THIS FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION
THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE
SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT
LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO
ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH
SECURITY, INSTRUMENT OR OTHER OBLIGATION. WITH RESPECT TO THE FOREGOING, THIS
FILING IS MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
3
<PAGE>
Exhibit A to SCHEDULE 1 OF EXHIBIT J
MORTGAGE LOAN SCHEDULE
<PAGE>
Lehman Brothers Commercial Mortgage Trust 98 - C4
<TABLE>
<CAPTION>
Original Remaining
Interest-Only Interest-Only
Control Period Period Amortization Cut-off Date Monthly
No. Property Name (months) (months) Type Balance ($) P&I ($)
=============================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
1 TRT Holdings ARD $249,347,368 $1,649,167
2 Mills ARD 145,000,000 940,467
3 Arden II 57 53 ARD 111,200,000 621,034
4 Fresno 35 32 ARD 69,000,000 437,035
5 Bayside Balloon 62,936,317 374,483
6 Inland 120 119 ARD 54,600,000 293,399
7 Montgomery Mall ARD 47,643,694 Step*
8 Mansards Apartment Community Balloon 45,871,866 303,264
9 Best Western President Hotel Balloon 30,818,758 236,868
10 Hundred Oaks Shopping Center Balloon 27,481,479 178,364
11 Sterling Apartments Balloon 22,984,600 149,483
12 Warwick Hotel Balloon 18,480,470 129,929
13 Avion at Sunrise Mountain Apartments Balloon 18,073,694 120,298
14 Park at Memorial Apartments Balloon 17,732,659 115,191
15 Lee Farm Corporate Park Balloon 17,689,266 118,950
16 Rodin Place ARD 17,510,145 120,391
17 MacArthur Properties2 Balloon 17,225,889 116,508
18 University Place Balloon 15,150,000 107,491
19 Milburn NYC Balloon 15,000,000 108,421
21 Savannah Square Balloon 14,138,000 95,739
22 Winston Salem Industrial Balloon 13,963,957 95,030
23 Covington Portfolio Balloon 13,891,086 92,704
24 Glen Hollow Apartments Balloon 13,679,553 90,045
25 Holiday Office Park Balloon 12,342,671 83,580
26 Gateway Business Center Balloon 11,968,591 80,968
27 Motorola Balloon 11,492,142 74,207
28 Ellis Building Balloon 11,074,203 77,746
29 Super K-Mart Balloon 10,566,533 76,823
30 Hospital Professional Bldg II Balloon 10,384,441 68,286
31 Garden Ridge - Stockbridge Balloon 10,377,575 89,731
32 Jefferson Square Balloon 10,178,868 67,998
33 Wellington Farms Apartments Balloon 9,794,148 66,190
34 Arbor Ridge Apartments Balloon 9,749,066 64,280
35 L'Atriums on the Creek Balloon 9,286,153 61,188
36 Country Oaks Apartments Balloon 9,240,421 65,495
37 Garden Ridge Balloon 8,587,890 57,911
38 Riverwalk Plaza Balloon 8,531,461 56,557
39 Pinnacle Center Balloon 8,471,798 60,133
40 Yaohan Plaza Balloon 8,224,477 57,911
41 Fullerton University Shopping Center Balloon 8,193,399 49,745
42 Presidential Estates Apartments Balloon 8,038,072 53,071
43 5 La-Z-Boy Retail Locations Balloon 7,991,787 56,849
44 Promenade Apartments Balloon 7,738,378 50,834
45 Miramonte Apartments Balloon 7,644,893 49,770
46 Ashton Meadows Apartments Balloon 7,538,678 49,522
47 Sullivan Street Balloon 7,481,918 47,011
48 Market at Cedar Hill Shopping Center Balloon 7,366,676 55,097
49 Grant Village Apartments Balloon 7,345,035 47,623
50 11 East Adams Balloon 7,163,405 50,427
51 Southgate Towers Apartments Balloon 6,995,368 45,681
52 Chesterfield Meadows Shopping Center Balloon 6,890,520 46,930
53 Northgate Shopping Center Balloon 6,842,598 47,631
54 45 Executive Drive Balloon 6,721,157 46,059
55 Cipriano Square Balloon 6,715,501 43,675
56 Cineplex Multiplex Fully Amortizing 6,585,686 50,199
57 Black & Decker Balloon 6,553,178 46,365
58 Staten Island Hotel Balloon 6,485,303 46,148
59 Cloverleaf Shopping Center Balloon 6,283,510 42,508
60 Deer Park Apartments Balloon 6,100,295 43,960
61 Kmart Town Center Balloon 6,000,000 38,876
62 Kash and Karry - Tampa Balloon 5,997,685 Step*
63 River Place Balloon 5,979,956 42,368
64 Security Public Storage Balloon 5,886,611 41,813
65 Newcastle Motel Balloon 5,769,717 42,978
<CAPTION>
Original
Balloon/ Amortization
Control ARD Mortgage Term
No. Property Name Balance ($) ARD Maturity Rate (%) (months)
==========================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
1 TRT Holdings $195,225,103 9/1/08 9/1/23 6.250 300
2 Mills 125,623,449 12/1/08 12/1/28 6.750 360
3 Arden II 101,284,797 4/16/08 4/16/28 6.610 300
4 Fresno 62,890,459 8/10/08 8/10/31 6.520 360
5 Bayside 53,186,796 11/1/08 5.920 360
6 Inland 54,600,000 10/1/08 10/1/33 6.360 0
7 Montgomery Mall 43,790,880 8/1/05 8/1/28 6.790 360
8 Mansards Apartment Community 42,277,571 7/1/05 6.910 360
9 Best Western President Hotel 25,430,657 5/1/08 7.875 294
10 Hundred Oaks Shopping Center 23,825,825 10/1/08 6.750 360
11 Sterling Apartments 19,937,901 10/1/08 6.770 360
12 Warwick Hotel 14,768,276 10/1/08 6.930 300
13 Avion at Sunrise Mountain Apartments 15,781,492 9/1/08 6.990 360
14 Park at Memorial Apartments 15,385,526 9/1/08 6.750 360
15 Lee Farm Corporate Park 16,785,415 10/1/03 7.100 360
16 Rodin Place 15,465,930 1/1/08 1/1/28 7.250 352
17 MacArthur Properties2 15,103,797 9/1/08 7.150 360
18 University Place 13,434,112 11/1/08 7.650 360
19 Milburn NYC 12,091,418 11/1/08 7.250 300
21 Savannah Square 12,415,097 7/1/08 7.150 360
22 Winston Salem Industrial 12,277,831 7/1/08 7.200 360
23 Covington Portfolio 12,145,114 8/1/08 7.010 360
24 Glen Hollow Apartments 11,910,103 9/1/08 6.880 360
25 Holiday Office Park 10,820,361 10/1/08 7.170 360
26 Gateway Business Center 10,507,386 7/1/08 7.140 360
27 Motorola 10,529,258 10/1/05 6.700 360
28 Ellis Building 8,851,490 9/1/08 6.900 300
29 Super K-Mart 6,805,935 8/1/13 7.280 300
30 Hospital Professional Bldg II 9,550,159 9/1/05 6.870 360
31 Garden Ridge - Stockbridge 3,883,837 9/1/16 8.940 267
32 Jefferson Square 9,664,093 8/1/03 7.020 360
33 Wellington Farms Apartments 9,043,225 10/1/05 7.150 360
34 Arbor Ridge Apartments 8,497,022 8/1/08 6.890 360
35 L'Atriums on the Creek 8,543,028 9/1/05 6.890 360
36 Country Oaks Apartments 7,404,943 10/1/08 7.020 300
37 Garden Ridge 7,524,112 9/1/08 7.120 360
38 Riverwalk Plaza 7,441,645 9/1/08 6.950 360
39 Pinnacle Center 5,430,991 5/1/18 7.613 357
40 Yaohan Plaza 7,297,346 6/1/08 7.540 360
41 Fullerton University Shopping Center 7,681,880 10/1/03 6.110 360
42 Presidential Estates Apartments 7,003,899 9/1/08 6.910 360
43 5 La-Z-Boy Retail Locations 6,412,247 10/1/08 7.060 300
44 Promenade Apartments 6,733,848 9/1/08 6.860 360
45 Miramonte Apartments 6,633,322 10/1/08 6.780 360
46 Ashton Meadows Apartments 6,560,071 9/1/08 6.860 360
47 Sullivan Street 6,438,960 8/1/08 6.420 360
48 Market at Cedar Hill Shopping Center 6,627,203 8/1/07 8.100 349
49 Grant Village Apartments 6,366,259 10/1/08 6.740 360
50 11 East Adams 5,730,951 9/1/08 6.930 300
51 Southgate Towers Apartments 6,074,644 10/1/08 6.810 360
52 Chesterfield Meadows Shopping Center 4,291,614 9/1/18 7.220 360
53 Northgate Shopping Center 5,449,334 10/1/08 6.820 300
54 45 Executive Drive 5,910,393 10/1/08 7.290 360
55 Cipriano Square 5,825,334 10/1/08 6.770 360
56 Cineplex Multiplex NAP 9/1/23 7.830 300
57 Black & Decker 5,248,231 10/1/08 7.000 300
58 Staten Island Hotel 5,207,642 9/1/08 7.050 300
59 Cloverleaf Shopping Center 5,516,377 7/1/08 7.140 360
60 Deer Park Apartments 3,908,694 8/1/13 7.180 300
61 Kmart Town Center 5,196,248 11/1/08 6.740 360
62 Kash and Karry - Tampa 1,997,999 9/1/18 6.610 278
63 River Place 5,251,755 8/1/05 6.990 300
64 Security Public Storage 4,724,000 9/1/08 7.030 300
65 Newcastle Motel 4,702,647 10/1/08 7.580 300
<CAPTION>
Remaining Scheduled
term Maturity
to ARD Remaining Cut-off Cut-off or ARD
Control Seasoning or Maturity Lockout Date Date Date Loan
No. Property Name (months) (months) Months DSCR (x) LTV (%) LTV (%) Group
====================================================================================================================================
<C> <S> <C> <C> <C> <C> <C> <C> <C>
1 TRT Holdings 2 118 25 2.34 49.9 39.1 1
2 Mills 0 120 23 1.73 58.0 50.2 1
3 Arden II 4 114 25 2.35 47.3 43.1 1
4 Fresno 3 117 24 1.74 60.7 55.3 1
5 Bayside 1 120 24 1.80 61.7 52.2 1
6 Inland 1 119 24 2.74 51.5 51.5 1
7 Montgomery Mall 3 81 25 1.48 67.1 61.7 1
8 Mansards Apartment Community 4 80 44 1.35 78.5 72.3 2
9 Best Western President Hotel 0 114 24 1.47 66.3 54.7 1
10 Hundred Oaks Shopping Center 1 119 47 1.92 57.3 49.6 1
11 Sterling Apartments 1 119 47 1.57 55.8 48.4 1
12 Warwick Hotel 1 119 47 1.57 55.2 44.1 1
13 Avion at Sunrise Mountain Apartments 2 118 58 1.27 78.2 68.3 2
14 Park at Memorial Apartments 2 118 46 1.33 79.9 69.3 2
15 Lee Farm Corporate Park 1 59 25 1.34 70.8 67.1 1
16 Rodin Place 2 110 37 1.34 76.8 67.8 1
17 MacArthur Properties2 2 118 46 1.30 67.0 58.8 1
18 University Place 0 120 48 1.38 73.9 65.5 1
19 Milburn NYC 0 120 48 1.46 68.2 55.0 1
21 Savannah Square 4 116 44 1.37 74.8 65.7 1
22 Winston Salem Industrial 4 116 32 1.37 77.8 68.4 1
23 Covington Portfolio 3 117 45 1.32 79.2 69.2 1
24 Glen Hollow Apartments 2 118 46 1.40 79.5 69.2 2
25 Holiday Office Park 1 119 47 1.31 75.7 66.4 1
26 Gateway Business Center 4 116 44 1.34 73.7 64.7 1
27 Motorola 1 83 47 1.27 74.1 67.9 1
28 Ellis Building 2 118 46 1.30 75.3 60.2 1
29 Super K-Mart 3 177 45 1.26 72.9 46.9 1
30 Hospital Professional Bldg II 2 82 46 1.38 71.6 65.9 1
31 Garden Ridge - Stockbridge 0 214 48 NAP NAP NAP 1
32 Jefferson Square 3 57 25 1.46 74.8 71.1 1
33 Wellington Farms Apartments 1 83 47 1.20 79.0 72.9 2
34 Arbor Ridge Apartments 3 117 45 1.28 79.3 69.1 2
35 L'Atriums on the Creek 2 82 34 1.40 79.0 72.7 2
36 Country Oaks Apartments 1 119 47 1.26 79.7 63.8 2
37 Garden Ridge 2 118 46 1.34 77.4 67.8 1
38 Riverwalk Plaza 2 118 46 1.32 79.9 69.7 1
39 Pinnacle Center 3 234 120 1.52 73.7 47.2 1
40 Yaohan Plaza 5 115 43 1.35 74.8 66.3 1
41 Fullerton University Shopping Center 1 59 35 1.40 74.5 69.8 1
42 Presidential Estates Apartments 2 118 46 1.31 79.6 69.3 2
43 5 La-Z-Boy Retail Locations 1 119 47 1.25 75.8 60.8 1
44 Promenade Apartments 2 118 34 1.33 79.8 69.4 2
45 Miramonte Apartments 1 119 47 1.26 79.2 68.7 1
46 Ashton Meadows Apartments 2 118 34 1.26 78.9 68.7 2
47 Sullivan Street 3 117 45 2.08 52.0 44.7 1
48 Market at Cedar Hill Shopping Center 3 105 33 1.27 72.6 65.3 1
49 Grant Village Apartments 1 119 47 1.60 67.5 58.5 2
50 11 East Adams 2 118 46 1.45 65.7 52.6 1
51 Southgate Towers Apartments 1 119 47 1.65 70.7 61.4 2
52 Chesterfield Meadows Shopping Center 2 238 46 1.35 79.2 49.3 1
53 Northgate Shopping Center 1 119 47 1.34 76.9 61.2 1
54 45 Executive Drive 1 119 47 1.34 73.1 64.2 1
55 Cipriano Square 1 119 47 1.46 79.9 69.3 1
56 Cineplex Multiplex 2 298 142 1.41 62.1 NAP 1
57 Black & Decker 1 119 47 1.31 74.9 60.0 1
58 Staten Island Hotel 2 118 46 1.73 64.9 52.1 1
59 Cloverleaf Shopping Center 4 116 44 1.37 74.8 65.7 1
60 Deer Park Apartments 3 177 81 1.27 79.7 51.1 2
61 Kmart Town Center 0 120 48 1.45 76.9 66.6 1
62 Kash and Karry - Tampa 1 238 47 NAP NAP NAP 1
63 River Place 3 81 45 1.49 63.6 55.9 1
64 Security Public Storage 2 118 46 1.50 69.3 55.6 1
65 Newcastle Motel 1 119 47 1.45 74.9 61.1 1
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Original Remaining
Interest-Only Interest-Only
Control Period Period Amortization Cut-off Date Monthly
No. Property Name (months) (months) Type Balance ($) P&I ($)
=============================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
66 Aventura Medical Plaza Balloon 5,711,693 38,986
67 Southgate Village Shopping Center Balloon 5,693,841 39,634
68 Brewery District Office Balloon 5,692,246 38,923
69 Kent Business Center Balloon 5,636,555 37,065
70 Villa Maria Balloon 5,600,000 37,257
71 Kash and Karry - Hudson Balloon 5,597,347 Step*
72 Forest Hill Shopping Center Balloon 5,591,979 37,445
73 Wyntree Apartments Balloon 5,587,721 36,508
74 Keebler Krossing Shopping Center Balloon 5,542,204 37,410
75 Havasu North Shopping Center Balloon 5,516,228 35,619
76 Valencia Entertainment Center Balloon 5,492,256 37,036
77 444 Saw Mill River Road Balloon 5,488,665 36,740
78 Twin Lakes Apartments Balloon 5,388,696 35,854
79 Little Prairie Shopping Center ARD 5,361,172 35,420
80 JJ Court Apartments Balloon 5,355,867 33,072
81 Citadel Balloon 5,191,745 33,279
82 Roanoke West Apartments Balloon 5,159,541 36,212
83 Foothills Center Balloon 5,147,214 35,869
84 Ardsley Plaza Balloon 5,128,991 35,025
85 Wyngrove Apartments Balloon 4,989,037 32,596
86 450 Village Company Balloon 4,987,945 31,341
87 Lone Mountain Plaza Shopping Center Balloon 4,986,441 33,299
88 Kmart Store No. 4219 - Ashwaubenon, WI Fully Amortizing 4,985,461 Step*
89 Holiday Inn Express - Minnetonka Balloon 4,939,533 36,291
90 335-355 Franklin Street Balloon 4,939,353 32,518
91 Fountain Park Apartments Balloon 4,797,026 32,031
92 Brittany Court Apartments Balloon 4,792,802 31,484
93 Sully Square Shopping Center Balloon 4,596,530 28,623
94 Capitol View Office Building Balloon 4,590,912 31,224
95 The Oaks Apartments Balloon 4,581,215 30,944
96 Hampshire Place Balloon 4,489,561 31,547
97 Shops at Butler Creek ARD 4,469,945 31,681
98 Mosside Village Balloon 4,391,003 29,480
99 River North Concourse Balloon 4,388,859 30,046
100 Quality Suites Balloon 4,373,095 31,234
101 Huntington Pointe Apartments ARD 4,369,259 29,244
102 St. Lawrence Plaza Balloon 4,214,860 30,787
103 Days Inn - San Diego Balloon 4,200,000 31,202
104 Beechwood South Apartments Balloon 4,138,655 27,554
105 Bell Atlantic of Virginia Balloon 4,132,482 34,832
106 Sunnyslope Shopping Centre Balloon 4,086,243 28,378
107 Uptown Shopping Center Balloon 4,084,927 31,689
108 Woodman Lassen Apartments Balloon 4,034,209 25,943
109 Comfort Inn - Blacksburg Balloon 3,995,822 28,220
110 Castle Rockland Balloon 3,994,450 27,097
111 K-Mart Plaza Balloon 3,992,223 27,314
112 Lock It Up - San Jose Balloon 3,991,121 28,655
113 Holiday Inn - Ashland Balloon 3,966,388 28,808
114 Grandland Shopping Center Balloon 3,900,000 25,947
115 North County Plaza Balloon 3,894,562 26,367
116 Christiansburg Hills Plaza Shopping Center Balloon 3,894,508 26,262
117 Forest Village Apartments Balloon 3,894,332 25,921
118 Bronxville West Balloon 3,792,432 25,717
119 Days Inn - Laurel Balloon 3,791,881 27,724
120 Stratford Executive Park Balloon 3,737,878 26,888
121 Chenault Creek Balloon 3,729,721 24,782
122 Greenbriar Market Place Balloon 3,697,405 23,655
123 Alston Arms Apartments Balloon 3,673,898 26,240
124 Citi Centre ARD 3,662,054 25,384
125 Kmart - La Crosse 60 60 Fully Amortizing 3,650,000 21,596
126 Walgreen - Camp Bowie Fully Amortizing 3,637,119 27,663
127 Sun Ridge Apartments Balloon 3,612,501 23,231
128 410-420 Tarrytown Road Balloon 3,597,722 23,854
129 New York Plaza Balloon 3,492,692 23,262
130 Lake Arbor Shopping Center Balloon 3,490,560 23,356
131 Eckerd Drug Store Balloon 3,407,706 Step*
132 Sleep Inn Fully Amortizing 3,400,000 30,849
<CAPTION>
Original
Balloon/ Amortization
Control ARD Mortgage Term
No. Property Name Balance ($) ARD Maturity Rate (%) (months)
==========================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
66 Aventura Medical Plaza 5,017,559 10/1/08 7.250 360
67 Southgate Village Shopping Center 4,534,482 10/1/08 6.820 300
68 Brewery District Office 5,005,073 9/1/08 7.260 360
69 Kent Business Center 5,338,671 9/1/03 6.870 360
70 Villa Maria 4,883,814 11/1/08 7.000 360
71 Kash and Karry - Hudson 1,584,999 9/1/18 6.610 271
72 Forest Hill Shopping Center 4,293,591 9/1/13 7.050 360
73 Wyntree Apartments 4,858,542 8/1/08 6.800 360
74 Keebler Krossing Shopping Center 4,856,946 9/1/08 7.130 360
75 Havasu North Shopping Center 4,775,968 10/1/08 6.700 360
76 Valencia Entertainment Center 4,811,931 9/1/08 7.120 360
77 444 Saw Mill River Road 5,065,877 8/1/05 7.040 360
78 Twin Lakes Apartments 4,707,716 8/1/08 6.980 360
79 Little Prairie Shopping Center 4,689,805 2/1/08 2/1/28 6.860 360
80 JJ Court Apartments 4,582,012 10/1/08 6.270 360
81 Citadel 4,753,938 9/1/05 6.620 360
82 Roanoke West Apartments 4,588,747 9/1/07 7.430 349
83 Foothills Center 4,545,837 10/1/08 7.460 360
84 Ardsley Plaza 4,512,537 4/1/08 7.200 353
85 Wyngrove Apartments 4,337,983 8/1/08 6.800 360
86 450 Village Company 4,292,640 8/1/08 6.420 360
87 Lone Mountain Plaza Shopping Center 4,363,097 7/1/08 7.010 360
88 Kmart Store No. 4219 - Ashwaubenon, WI NAP 11/1/18 7.100 240
89 Holiday Inn Express - Minnetonka 4,009,752 9/1/08 7.410 300
90 335-355 Franklin Street 4,681,914 8/1/03 6.875 360
91 Fountain Park Apartments 4,190,058 10/1/08 7.030 360
92 Brittany Court Apartments 4,170,641 9/1/08 6.860 360
93 Sully Square Shopping Center 3,941,308 10/1/08 6.350 360
94 Capitol View Office Building 4,033,534 8/1/08 7.200 360
95 The Oaks Apartments 4,024,784 5/1/08 7.110 360
96 Hampshire Place 3,589,569 9/1/08 6.910 300
97 Shops at Butler Creek 3,981,096 1/1/08 1/1/28 7.570 360
98 Mosside Village 3,845,065 8/1/08 7.070 360
99 River North Concourse 3,864,757 7/1/08 7.260 360
100 Quality Suites 3,519,029 8/1/08 7.080 300
101 Huntington Pointe Apartments 4,048,202 2/1/05 2/1/28 6.990 360
102 St. Lawrence Plaza 3,783,443 8/1/07 7.840 347
103 Days Inn - San Diego 3,417,410 11/1/08 7.560 300
104 Beechwood South Apartments 3,618,482 7/1/08 6.980 360
105 Bell Atlantic of Virginia 483,964 9/1/13 6.590 195
106 Sunnyslope Shopping Centre 3,458,973 7/1/08 7.130 330
107 Uptown Shopping Center 2,786,574 9/1/08 6.960 240
108 Woodman Lassen Apartments 3,489,027 10/1/08 6.660 360
109 Comfort Inn - Blacksburg 3,198,144 10/1/08 6.980 300
110 Castle Rockland 3,505,067 9/1/08 7.180 360
111 K-Mart Plaza 3,364,291 8/1/10 7.260 360
112 Lock It Up - San Jose 2,549,595 9/1/13 7.150 300
113 Holiday Inn - Ashland 3,499,258 9/1/05 7.280 300
114 Grandland Shopping Center 3,401,227 11/1/08 7.000 360
115 North County Plaza 3,415,661 9/1/08 7.160 360
116 Christiansburg Hills Plaza Shopping Cente 2,408,534 9/1/18 7.120 360
117 Forest Village Apartments 3,400,432 9/1/08 6.990 360
118 Bronxville West 3,329,451 8/1/08 7.170 360
119 Days Inn - Laurel 3,350,155 9/1/05 7.355 300
120 Stratford Executive Park 3,015,165 8/1/08 7.160 300
121 Chenault Creek 3,259,256 7/1/08 6.960 360
122 Greenbriar Market Place 2,203,665 10/1/18 6.610 360
123 Alston Arms Apartments 2,956,386 8/1/08 7.080 300
124 Citi Centre 3,237,690 3/1/08 3/1/28 7.350 353
125 Kmart - La Crosse NAP 11/1/18 7.100 180
126 Walgreen - Camp Bowie NAP 7/1/18 6.650 237
127 Sun Ridge Apartments 3,124,309 10/1/08 6.660 360
128 410-420 Tarrytown Road 3,136,710 10/1/08 6.960 360
129 New York Plaza 3,052,108 8/1/08 6.990 360
130 Lake Arbor Shopping Center 2,682,695 7/1/13 7.030 360
131 Eckerd Drug Store 654,451 9/1/18 6.730 267
132 Sleep Inn NAP 11/1/13 7.050 180
<CAPTION>
Remaining Scheduled
term Maturity
to ARD Remaining Cut-off Cut-off or ARD
Control Seasoning or Maturity Lockout Date Date Date Loan
No. Property Name (months) (months) Months DSCR (x) LTV (%) LTV (%) Group
====================================================================================================================================
<C> <S> <C> <C> <C> <C> <C> <C> <C>
66 Aventura Medical Plaza 1 119 35 1.30 69.7 61.2 1
67 Southgate Village Shopping Center 1 119 47 1.34 76.4 60.9 1
68 Brewery District Office 2 118 46 1.39 75.4 66.3 1
69 Kent Business Center 2 58 25 1.42 73.9 70.0 1
70 Villa Maria 0 120 48 1.30 72.7 63.4 1
71 Kash and Karry - Hudson 1 238 47 NAP NAP NAP 1
72 Forest Hill Shopping Center 2 178 82 1.33 79.9 61.3 1
73 Wyntree Apartments 3 117 45 1.32 79.8 69.4 2
74 Keebler Krossing Shopping Center 2 118 46 1.31 78.9 69.1 1
75 Havasu North Shopping Center 1 119 47 1.46 79.9 69.2 1
76 Valencia Entertainment Center 2 118 46 1.41 74.5 65.2 1
77 444 Saw Mill River Road 3 81 45 1.44 68.6 63.3 1
78 Twin Lakes Apartments 3 117 45 1.37 74.0 64.7 2
79 Little Prairie Shopping Center 9 111 39 1.32 76.0 66.5 1
80 JJ Court Apartments 1 119 47 1.43 79.2 67.8 2
81 Citadel 2 82 46 1.44 74.2 67.9 1
82 Roanoke West Apartments 3 106 22 1.33 79.4 70.6 2
83 Foothills Center 1 119 24 1.39 71.1 62.8 1
84 Ardsley Plaza 0 113 41 1.33 75.4 66.4 1
85 Wyngrove Apartments 3 117 45 1.48 77.1 67.0 2
86 450 Village Company 3 117 45 2.39 42.6 36.7 1
87 Lone Mountain Plaza Shopping Center 4 116 44 1.50 64.3 56.3 1
88 Kmart Store No. 4219 - Ashwaubenon, WI 0 240 48 NAP NAP NAP 1
89 Holiday Inn Express - Minnetonka 2 118 46 1.68 74.8 60.8 1
90 335-355 Franklin Street 3 57 25 1.37 70.6 66.9 1
91 Fountain Park Apartments 1 119 47 1.33 80.0 69.8 2
92 Brittany Court Apartments 2 118 34 1.37 79.2 68.9 2
93 Sully Square Shopping Center 1 119 47 1.48 61.3 52.6 1
94 Capitol View Office Building 3 117 45 1.25 76.5 67.2 1
95 The Oaks Apartments 6 114 42 1.31 73.3 64.4 2
96 Hampshire Place 2 118 46 1.33 74.8 59.8 1
97 Shops at Butler Creek 10 110 26 1.47 65.7 58.5 1
98 Mosside Village 3 117 45 1.44 73.2 64.1 1
99 River North Concourse 4 116 44 1.30 74.4 65.5 1
100 Quality Suites 3 117 81 1.43 74.8 60.2 1
101 Huntington Pointe Apartments 9 75 39 1.24 77.7 72.0 2
102 St. Lawrence Plaza 2 105 46 1.23 77.3 69.4 1
103 Days Inn - San Diego 0 120 36 1.44 64.6 52.6 1
104 Beechwood South Apartments 4 116 44 1.25 79.1 69.1 2
105 Bell Atlantic of Virginia 2 178 46 NAP NAP NAP 1
106 Sunnyslope Shopping Centre 4 116 32 1.32 74.3 62.9 1
107 Uptown Shopping Center 2 118 46 1.24 71.7 48.9 1
108 Woodman Lassen Apartments 1 119 47 1.32 79.1 68.4 2
109 Comfort Inn - Blacksburg 1 119 47 1.51 69.5 55.6 1
110 Castle Rockland 2 118 46 1.35 75.4 66.1 1
111 K-Mart Plaza 3 141 57 1.39 72.3 60.9 1
112 Lock It Up - San Jose 2 178 82 1.48 74.2 47.4 1
113 Holiday Inn - Ashland 2 82 34 1.49 74.8 66.0 1
114 Grandland Shopping Center 0 120 48 1.33 78.3 68.3 1
115 North County Plaza 2 118 46 1.49 67.7 59.4 1
116 Christiansburg Hills Plaza Shopping Cente 2 238 46 1.28 74.9 46.3 1
117 Forest Village Apartments 2 118 46 1.35 79.5 69.4 2
118 Bronxville West 3 117 45 1.37 70.2 61.7 1
119 Days Inn - Laurel 2 82 34 1.50 74.4 65.7 1
120 Stratford Executive Park 3 117 45 1.41 68.6 55.3 1
121 Chenault Creek 4 116 56 1.37 78.5 68.6 2
122 Greenbriar Market Place 1 239 47 1.59 74.7 44.5 1
123 Alston Arms Apartments 3 117 45 1.51 72.0 58.0 2
124 Citi Centre 1 112 39 1.26 79.6 70.4 1
125 Kmart - La Crosse 0 240 48 NAP NAP NAP 1
126 Walgreen - Camp Bowie 1 236 47 NAP NAP NAP 1
127 Sun Ridge Apartments 1 119 47 1.32 78.5 67.9 2
128 410-420 Tarrytown Road 1 119 47 1.47 76.5 66.7 1
129 New York Plaza 3 117 45 1.28 77.6 67.8 1
130 Lake Arbor Shopping Center 4 176 80 1.33 76.7 59.0 1
131 Eckerd Drug Store 1 238 47 NAP NAP NAP 1
132 Sleep Inn 0 180 60 2.15 40.0 NAP 1
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Original Remaining
Interest-Only Interest-Only
Control Period Period Amortization Cut-off Date Monthly
No. Property Name (months) (months) Type Balance ($) P&I ($)
=============================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
133 Hall of Fame Marina Balloon 3,398,051 23,263
134 Contemporary Village Apartments Balloon 3,395,070 22,620
135 Commerce Exchange Business Park Balloon 3,391,027 22,872
136 428 Tolland Turnpike Fully Amortizing 3,380,752 26,749
137 Tropicana Center and Flamingo Jones Balloon 3,347,172 23,107
138 Cameron Ridge Apartments Balloon 3,295,063 21,668
139 Loudon Plaza Balloon 3,268,667 22,408
140 Smartpark Balloon 3,236,444 23,512
141 One North Penn Office Building Balloon 3,220,369 21,543
142 Kmart 60 60 Fully Amortizing 3,199,473 18,930
143 125 Canal Street Balloon 3,198,195 22,004
144 Alton Circle Balloon 3,198,029 21,397
145 Country Club Apartments Balloon 3,197,926 21,032
146 Trailing Vine Place Apartment Balloon 3,193,249 21,182
147 Bayway Shopping Center Balloon 3,184,932 21,895
148 Park Row East Apartments Balloon 3,147,766 20,055
149 Thunderbird Square Balloon 3,100,000 21,676
150 Walgreens Fully Amortizing 3,097,451 23,706
151 Sherwood Gardens Apts. Balloon 3,091,525 20,583
152 Star Plaza Balloon 3,077,564 20,567
153 Stratford Place Apartments Balloon 3,048,023 20,047
154 Morrell Plaza Shopping Center Balloon 3,045,524 20,189
155 Fountain Hills Plaza Shopping Center Balloon 2,998,101 19,879
156 La Quinta Apartments Balloon 2,995,501 19,678
157 Franklin Properties Balloon 2,994,746 23,079
158 Foot Hills Shopping Center Balloon 2,991,909 20,020
159 Walgreen - Portage Balloon 2,970,449 22,759
160 Riverchase Apartments Balloon 2,921,453 20,900
161 Quality Inn Balloon 2,915,397 20,823
162 350-360 Tarrytown Road Balloon 2,848,196 18,885
163 Kings Bay Plaza Balloon 2,830,000 20,470
164 Hidden Valley Apartments Balloon 2,822,945 17,819
165 Warlick Plaza Balloon 2,800,000 18,254
166 Upland Plaza Balloon 2,800,000 20,060
167 Sharon Lakes Plaza Balloon 2,794,585 19,158
168 Randolph Plaza Balloon 2,790,861 19,987
169 Orangewood Business Plaza Balloon 2,773,275 18,499
170 Guilford Village Balloon 2,700,000 17,351
171 North County Office Balloon 2,696,235 18,254
172 1 Ethel Blvd Fully Amortizing 2,683,453 24,740
173 The Embassy Cinema Balloon 2,646,597 18,511
174 Staples - Galesburg Balloon 2,640,770 21,004
175 Pinebrook Village Balloon 2,625,000 18,988
176 Studio Inn Balloon 2,593,980 18,244
177 Plaza 114 Balloon 2,593,845 17,537
178 201 Federal Road Fully Amortizing 2,585,281 20,455
179 Eckerd Fully Amortizing 2,520,704 Step*
180 Glen Ellen Mobile Home Park Balloon 2,514,914 16,969
181 Plaza West Strip Center Balloon 2,500,000 19,942
182 Atrium at Delk Center Balloon 2,500,000 16,802
183 3650 Industrial Avenue Balloon 2,498,475 16,767
184 Jacksonville Apartments Balloon 2,496,497 16,868
185 West Bay Office Park Balloon 2,495,230 17,190
186 Sav-On Drug Store Balloon 2,494,928 16,801
187 Holiday Inn Express - Fargo Balloon 2,494,604 18,151
188 Smokey Hill Plaza Shopping Center Balloon 2,494,441 17,893
189 Rue Granville Apartments Balloon 2,478,165 15,545
190 Revco - Savannah Balloon 2,440,922 Step*
191 Turnberry Crossing Shopping Center Balloon 2,395,067 16,048
192 Rite Aid - Walkill Fully Amortizing 2,379,613 Step*
193 Lucky Industrial Park Balloon 2,378,613 15,976
194 Target Center Balloon 2,368,784 16,025
195 Golfsmith Balloon 2,348,513 15,572
196 70 Garden Court Balloon 2,346,691 15,824
197 Bonita Harbor Apartments Balloon 2,342,225 16,669
198 Caputo Balloon 2,298,639 15,581
199 Heather Ridge Village Balloon 2,296,801 15,565
<CAPTION>
Original
Balloon/ Amortization
Control ARD Mortgage Term
No. Property Name Balance ($) ARD Maturity Rate (%) (months)
==========================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
133 Hall of Fame Marina 2,987,385 10/1/08 7.280 360
134 Contemporary Village Apartments 3,129,215 9/1/05 7.000 360
135 Commerce Exchange Business Park 2,974,750 7/1/08 7.110 360
136 428 Tolland Turnpike NAP 8/1/18 7.190 240
137 Tropicana Center and Flamingo Jones 3,003,354 10/1/05 7.030 324
138 Cameron Ridge Apartments 3,120,923 9/1/03 6.870 360
139 Loudon Plaza 2,877,651 8/1/08 7.280 360
140 Smartpark 2,621,640 7/1/08 7.260 300
141 One North Penn Office Building 2,815,618 9/1/08 7.040 360
142 Kmart NAP 11/1/18 7.100 180
143 125 Canal Street 2,815,269 10/1/08 7.330 360
144 Alton Circle 2,794,849 10/1/08 7.050 360
145 Country Club Apartments 2,782,227 10/1/08 6.880 360
146 Trailing Vine Place Apartment 3,029,383 8/1/03 6.950 360
147 Bayway Shopping Center 2,811,927 4/1/08 7.280 360
148 Park Row East Apartments 2,877,358 10/1/05 6.570 360
149 Thunderbird Square 2,738,638 11/1/08 7.500 360
150 Walgreens NAP 4/1/18 6.650 234
151 Sherwood Gardens Apts. 2,702,962 7/1/08 6.980 360
152 Star Plaza 2,690,059 9/1/08 7.030 360
153 Stratford Place Apartments 2,651,810 10/1/08 6.880 360
154 Morrell Plaza Shopping Center 2,656,486 9/1/08 6.950 360
155 Fountain Hills Plaza Shopping Center 2,613,925 10/1/08 6.960 360
156 La Quinta Apartments 2,606,650 9/1/08 6.860 360
157 Franklin Properties 2,034,821 10/1/08 6.900 240
158 Foot Hills Shopping Center 2,299,452 7/1/13 7.030 360
159 Walgreen - Portage 883,036 9/1/18 7.680 284
160 Riverchase Apartments 2,350,205 9/1/08 7.110 300
161 Quality Inn 2,346,018 8/1/08 7.080 300
162 350-360 Tarrytown Road 2,483,230 10/1/08 6.960 360
163 Kings Bay Plaza 2,521,782 11/1/08 7.850 360
164 Hidden Valley Apartments 2,429,372 10/1/08 6.480 360
165 Warlick Plaza 2,428,867 11/1/08 6.800 360
166 Upland Plaza 2,488,986 11/1/08 7.750 360
167 Sharon Lakes Plaza 2,589,472 8/1/05 7.280 360
168 Randolph Plaza 2,247,850 8/1/08 7.110 300
169 Orangewood Business Plaza 2,421,737 10/1/08 7.020 360
170 Guilford Village 2,333,201 11/1/08 6.660 360
171 North County Office 2,364,689 9/1/08 7.160 360
172 1 Ethel Blvd NAP 9/1/13 7.210 180
173 The Embassy Cinema 2,340,589 9/1/08 7.490 360
174 Staples - Galesburg 830,409 5/1/13 6.650 217
175 Pinebrook Village 2,339,109 11/1/08 7.850 360
176 Studio Inn 2,074,624 9/1/08 6.920 300
177 Plaza 114 2,275,409 7/1/08 7.130 357
178 201 Federal Road NAP 8/1/18 7.190 240
179 Eckerd NAP 6/1/18 6.710 237
180 Glen Ellen Mobile Home Park 2,205,068 8/1/08 7.120 360
181 Plaza West Strip Center 1,724,406 11/1/08 7.370 240
182 Atrium at Delk Center 1,965,033 11/1/08 6.450 300
183 3650 Industrial Avenue 2,185,201 10/1/08 7.080 360
184 Jacksonville Apartments 2,188,385 9/1/08 7.140 360
185 West Bay Office Park 2,199,504 8/1/08 7.330 360
186 Sav-On Drug Store 2,186,420 8/1/08 7.100 360
187 Holiday Inn Express - Fargo 2,018,389 9/1/08 7.300 300
188 Smokey Hill Plaza Shopping Center 2,008,523 9/1/08 7.140 300
189 Rue Granville Apartments 2,129,093 10/1/08 6.420 360
190 Revco - Savannah 613,071 10/1/18 6.950 275
191 Turnberry Crossing Shopping Center 2,096,203 8/1/08 7.050 360
192 Rite Aid - Walkill NAP 7/1/18 7.010 237
193 Lucky Industrial Park 2,081,820 9/1/08 7.080 360
194 Target Center 2,079,586 7/1/08 7.140 360
195 Golfsmith 2,047,575 10/1/08 6.960 360
196 70 Garden Court 2,056,006 9/1/08 7.120 360
197 Bonita Harbor Apartments 1,882,496 8/1/08 7.040 300
198 Caputo 2,015,653 10/1/08 7.180 360
199 Heather Ridge Village 2,014,889 9/1/08 7.170 360
<CAPTION>
Remaining Scheduled
term Maturity
to ARD Remaining Cut-off Cut-off or ARD
Control Seasoning or Maturity Lockout Date Date Date Loan
No. Property Name (months) (months) Months DSCR (x) LTV (%) LTV (%) Group
====================================================================================================================================
<C> <S> <C> <C> <C> <C> <C> <C> <C>
133 Hall of Fame Marina 1 119 47 1.45 61.8 54.3 1
134 Contemporary Village Apartments 2 82 46 1.52 75.4 69.5 2
135 Commerce Exchange Business Park 4 116 44 1.31 74.5 65.4 1
136 428 Tolland Turnpike 3 237 234 1.53 71.9 NAP 1
137 Tropicana Center and Flamingo Jones 1 83 47 1.32 73.6 66.0 1
138 Cameron Ridge Apartments 2 58 28 1.34 70.9 67.1 2
139 Loudon Plaza 3 117 45 1.34 73.0 64.3 1
140 Smartpark 4 116 44 1.49 51.4 41.6 1
141 One North Penn Office Building 2 118 46 1.36 71.6 62.6 1
142 Kmart 0 240 48 NAP NAP NAP 1
143 125 Canal Street 1 119 47 1.30 80.0 70.4 1
144 Alton Circle 1 119 59 1.33 78.0 68.2 1
145 Country Club Apartments 1 119 35 1.28 78.6 68.4 2
146 Trailing Vine Place Apartment 3 57 25 1.33 79.8 75.7 2
147 Bayway Shopping Center 7 113 41 1.40 74.1 65.4 1
148 Park Row East Apartments 1 83 35 1.41 70.0 63.9 2
149 Thunderbird Square 0 120 48 1.32 74.7 66.0 1
150 Walgreens 1 233 47 NAP NAP NAP 1
151 Sherwood Gardens Apts. 4 116 44 1.55 77.3 67.6 1
152 Star Plaza 2 118 46 1.36 76.9 67.3 1
153 Stratford Place Apartments 1 119 35 1.29 78.5 68.3 2
154 Morrell Plaza Shopping Center 2 118 46 1.29 66.2 57.7 1
155 Fountain Hills Plaza Shopping Center 1 119 35 1.36 75.0 65.3 1
156 La Quinta Apartments 2 118 34 1.37 77.8 67.7 2
157 Franklin Properties 1 119 47 1.32 78.8 53.5 2
158 Foot Hills Shopping Center 4 176 80 1.37 74.8 57.5 1
159 Walgreen - Portage 1 238 47 NAP NAP NAP 1
160 Riverchase Apartments 2 118 46 1.25 77.9 62.7 2
161 Quality Inn 3 117 81 1.42 74.8 60.2 1
162 350-360 Tarrytown Road 1 119 47 1.49 69.5 60.6 1
163 Kings Bay Plaza 0 120 25 1.26 74.5 66.4 1
164 Hidden Valley Apartments 1 119 47 1.38 77.3 66.6 2
165 Warlick Plaza 0 120 48 1.43 77.8 67.5 1
166 Upland Plaza 0 120 36 1.33 73.7 65.5 1
167 Sharon Lakes Plaza 3 81 33 1.35 79.8 74.0 1
168 Randolph Plaza 3 117 45 1.32 70.7 57.0 1
169 Orangewood Business Plaza 1 119 47 1.40 71.1 62.1 1
170 Guilford Village 0 120 36 1.49 71.8 62.1 1
171 North County Office 2 118 46 1.40 77.9 68.3 1
172 1 Ethel Blvd 2 178 46 1.45 48.8 NAP 1
173 The Embassy Cinema 2 118 46 1.40 69.6 61.6 1
174 Staples - Galesburg 1 174 47 NAP NAP NAP 1
175 Pinebrook Village 0 120 25 1.40 75.0 66.8 1
176 Studio Inn 2 118 46 1.51 59.8 47.8 1
177 Plaza 114 1 116 44 1.50 74.1 65.0 1
178 201 Federal Road 3 237 234 1.39 71.8 NAP 1
179 Eckerd 2 235 118 NAP NAP NAP 1
180 Glen Ellen Mobile Home Park 3 117 45 1.26 79.0 69.2 1
181 Plaza West Strip Center 0 120 60 1.29 74.6 51.5 1
182 Atrium at Delk Center 0 120 48 1.60 64.1 50.4 1
183 3650 Industrial Avenue 1 119 47 1.31 79.3 69.4 1
184 Jacksonville Apartments 2 118 58 1.34 75.7 66.3 2
185 West Bay Office Park 3 117 45 1.41 73.4 64.7 1
186 Sav-On Drug Store 3 117 45 1.26 77.0 67.5 1
187 Holiday Inn Express - Fargo 2 118 46 1.58 74.5 60.3 1
188 Smokey Hill Plaza Shopping Center 2 118 46 1.37 73.4 59.1 1
189 Rue Granville Apartments 1 119 47 1.38 79.9 68.7 2
190 Revco - Savannah 0 239 48 NAP NAP NAP 1
191 Turnberry Crossing Shopping Center 3 117 45 1.60 71.5 62.6 1
192 Rite Aid - Walkill 1 236 47 NAP NAP NAP 1
193 Lucky Industrial Park 2 118 46 1.29 79.3 69.4 1
194 Target Center 4 116 44 1.33 59.0 51.8 1
195 Golfsmith 1 119 47 1.40 73.4 64.0 1
196 70 Garden Court 2 118 34 1.40 72.2 63.3 1
197 Bonita Harbor Apartments 3 117 45 1.36 73.2 58.8 2
198 Caputo 1 119 47 1.34 79.3 69.5 2
199 Heather Ridge Village 2 118 58 1.47 70.7 62.0 1
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Original Remaining
Interest-Only Interest-Only
Control Period Period Amortization Cut-off Date Monthly
No. Property Name (months) (months) Type Balance ($) P&I ($)
=============================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
200 Leviner Office Building Balloon 2,296,706 15,379
201 Shoppes of Avon Balloon 2,296,706 15,379
202 Buckner Village Apartments Balloon 2,296,681 15,333
203 San Marco Village Balloon 2,244,078 15,151
204 Staples Balloon 2,223,692 15,103
205 Transcor Balloon 2,200,000 15,492
206 Vista Park Apartments Balloon 2,198,582 14,489
207 Windsor Estates Balloon 2,196,917 14,844
208 Roland Park Shopping Center Balloon 2,194,383 14,978
209 Pathmark Shopping Center Balloon 2,186,160 19,444
210 Old Lake Place Shopping Center Balloon 2,181,456 13,913
211 West Flagler Shops Balloon 2,173,409 13,690
212 3128 North Ashland Avenue Balloon 2,170,714 14,778
213 Westgate Plaza Balloon 2,148,841 14,989
214 Hillsboro Shoppes Balloon 2,136,065 13,878
215 Kmart - Tacoma Balloon 2,098,838 14,526
216 Post Office Annex Building Balloon 2,048,757 13,777
217 Eckerd - Greensboro Fully Amortizing 2,045,996 Step*
218 Regal Pointe Apartments Balloon 2,021,018 13,773
219 Clarksville Crossing Balloon 1,998,922 13,943
220 Merchants Plaza Balloon 1,998,813 13,535
221 Statewide Self Storage Balloon 1,998,030 14,456
222 25227 Grogans Mill Office Building Balloon 1,970,624 14,161
223 Florida Space Center Balloon 1,970,624 14,161
224 Fairway Gardens Balloon 1,943,385 13,670
225 Rite Aid - West Haven Balloon 1,902,371 14,035
226 Staples Balloon 1,898,883 12,897
227 Commerce Point Balloon 1,847,793 12,307
228 93 Broadway Balloon 1,847,439 12,545
229 Arvada Square Shopping Center Balloon 1,823,873 12,191
230 Battlefield Center Balloon 1,798,749 11,543
231 CVS - Asheboro Fully Amortizing 1,776,000 Step*
232 NFC Office Plaza Balloon 1,771,992 12,620
233 Oakwood Terrace Apartments Balloon 1,750,000 10,866
234 CVS - Ballentine Fully Amortizing 1,750,000 12,507
235 Jackson's Landing Apartments Balloon 1,717,554 11,536
236 Centergate Balloon 1,696,686 11,597
237 King Kullen Shopping Center Balloon 1,689,305 15,025
238 Anaheim Springs Office Balloon 1,676,250 12,003
239 AUS Building Balloon 1,674,281 11,864
240 Queens West Industustrial Balloon 1,648,927 10,834
241 Forest Hill Park Apartment Complex Balloon 1,636,312 11,675
242 West Brandon Square Balloon 1,622,644 10,811
243 CVS - Stanley Fully Amortizing 1,597,097 13,117
244 Deer Park Balloon 1,595,926 10,904
245 Fairmont Building Balloon 1,595,057 11,710
246 Papago Place Balloon 1,572,782 10,606
247 Humble Office Building Balloon 1,547,780 10,364
248 Golden Oak Village Apartments Balloon 1,547,769 10,343
249 CVS - Denver Balloon 1,547,289 11,934
250 Free State Self Storage Balloon 1,546,635 11,223
251 Brookmeade Plaza Balloon 1,498,545 10,910
252 80 Garden Court Balloon 1,497,888 10,101
253 CVS - Sunset Beach Fully Amortizing 1,497,089 11,549
254 Centenial Mall Balloon 1,495,189 10,794
255 CVS - King's Mountian Fully Amortizing 1,491,080 11,594
256 Southland (7-11) Fully Amortizing 1,462,648 Step*
257 North Grove Plaza Balloon 1,450,000 10,488
258 Thomas Center Balloon 1,448,553 10,425
259 4708 North Milwaukee Balloon 1,447,143 9,852
260 9255 South Western Avenue Balloon 1,447,143 9,852
261 Greenwich/Laguardia Balloon 1,422,863 9,347
262 Kmart - Rock Springs Plaza Balloon 1,399,225 9,684
263 Rockwood Plaza Shopping Center Balloon 1,398,043 9,456
264 Sierra Carmichael Apartments Balloon 1,397,167 9,418
265 1501 Estes Avenue Balloon 1,397,122 9,361
266 581 Wolcott Street Fully Amortizing 1,392,074 11,014
<CAPTION>
Original
Balloon/ Amortization
Control ARD Mortgage Term
No. Property Name Balance ($) ARD Maturity Rate (%) (months)
==========================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
200 Leviner Office Building 2,008,567 9/1/08 7.050 360
201 Shoppes of Avon 2,008,567 9/1/08 7.050 360
202 Buckner Village Apartments 2,006,977 9/1/08 7.020 360
203 San Marco Village 1,969,103 7/1/08 7.120 360
204 Staples 1,950,939 10/1/08 7.200 360
205 Transcor 1,980,322 11/1/05 7.250 324
206 Vista Park Apartments 1,913,808 10/1/08 6.900 360
207 Windsor Estates 1,925,779 9/1/08 7.140 360
208 Roland Park Shopping Center 1,701,587 7/1/13 7.230 360
209 Pathmark Shopping Center 1,012,475 9/1/08 6.730 180
210 Old Lake Place Shopping Center 1,882,523 10/1/08 6.580 360
211 West Flagler Shops 1,869,353 10/1/08 6.460 360
212 3128 North Ashland Avenue 1,907,656 8/1/08 7.210 360
213 Westgate Plaza 1,361,777 10/1/18 7.470 360
214 Hillsboro Shoppes 1,852,420 10/1/08 6.760 360
215 Kmart - Tacoma 1,322,637 10/1/18 7.390 360
216 Post Office Annex Building 1,792,807 10/1/08 7.100 360
217 Eckerd - Greensboro NAP 7/1/18 7.050 237
218 Regal Pointe Apartments 1,870,866 8/1/05 7.220 360
219 Clarksville Crossing 1,266,769 10/1/18 7.470 360
220 Merchants Plaza 1,752,285 10/1/08 7.170 360
221 Statewide Self Storage 1,612,476 10/1/08 7.250 300
222 25227 Grogans Mill Office Building 1,815,879 9/1/03 7.160 300
223 Florida Space Center 1,587,710 9/1/08 7.160 300
224 Fairway Gardens 1,555,734 8/1/08 6.910 300
225 Rite Aid - West Haven 541,521 6/1/18 7.180 282
226 Staples 1,665,970 10/1/08 7.200 360
227 Commerce Point 1,449,107 10/1/08 6.340 300
228 93 Broadway 1,621,515 9/1/08 7.190 360
229 Arvada Square Shopping Center 1,593,516 10/1/08 7.040 360
230 Battlefield Center 1,554,815 10/1/08 6.640 360
231 CVS - Asheboro NAP 8/1/18 7.010 237
232 NFC Office Plaza 1,423,329 9/1/08 7.060 300
233 Oakwood Terrace Apartments 1,498,379 11/1/08 6.330 360
234 CVS - Ballentine NAP 11/1/18 5.970 240
235 Jackson's Landing Apartments 1,503,246 9/1/08 7.080 360
236 Centergate 1,492,586 8/1/08 7.250 360
237 King Kullen Shopping Center 782,366 9/1/08 6.730 180
238 Anaheim Springs Office 1,348,894 9/1/08 7.120 300
239 AUS Building 1,411,176 7/1/08 7.280 324
240 Queens West Industustrial 1,434,201 10/1/08 6.870 360
241 Forest Hill Park Apartment Complex 1,315,151 9/1/08 7.080 300
242 West Brandon Square 1,417,222 9/1/08 7.000 360
243 CVS - Stanley NAP 7/1/18 7.660 237
244 Deer Park 1,404,639 7/1/08 7.240 360
245 Fairmont Building 1,295,537 8/1/08 7.390 300
246 Papago Place 1,493,897 9/1/03 7.120 360
247 Humble Office Building 1,353,599 9/1/08 7.050 360
248 Golden Oak Village Apartments 1,187,326 9/1/13 7.030 360
249 CVS - Denver 48,956 10/1/18 6.910 240
250 Free State Self Storage 1,250,257 9/1/08 7.270 300
251 Brookmeade Plaza 1,211,943 10/1/08 7.320 300
252 80 Garden Court 1,312,344 9/1/08 7.120 360
253 CVS - Sunset Beach NAP 10/1/18 6.910 240
254 Centenial Mall 1,207,551 8/1/08 7.200 300
255 CVS - King's Mountian NAP 6/1/18 6.910 238
256 Southland (7-11) NAP 7/1/13 6.900 177
257 North Grove Plaza 1,292,079 11/1/08 7.850 360
258 Thomas Center 1,166,897 10/1/08 7.190 300
259 4708 North Milwaukee 1,271,770 8/1/08 7.210 360
260 9255 South Western Avenue 1,271,770 8/1/08 7.210 360
261 Greenwich/Laguardia 1,238,159 9/1/08 6.860 360
262 Kmart - Rock Springs Plaza 881,756 10/1/18 7.390 360
263 Rockwood Plaza Shopping Center 1,225,816 9/1/08 7.150 360
264 Sierra Carmichael Apartments 1,224,717 8/1/08 7.110 360
265 1501 Estes Avenue 1,222,785 8/1/08 7.050 360
266 581 Wolcott Street NAP 8/1/18 7.190 240
<CAPTION>
Remaining Scheduled
term Maturity
to ARD Remaining Cut-off Cut-off or ARD
Control Seasoning or Maturity Lockout Date Date Date Loan
No. Property Name (months) (months) Months DSCR (x) LTV (%) LTV (%) Group
====================================================================================================================================
<C> <S> <C> <C> <C> <C> <C> <C> <C>
200 Leviner Office Building 2 118 46 1.34 70.7 61.8 1
201 Shoppes of Avon 2 118 46 1.48 74.6 65.2 1
202 Buckner Village Apartments 2 118 46 1.50 76.6 66.9 2
203 San Marco Village 4 116 44 1.51 70.1 61.5 2
204 Staples 1 119 47 1.32 79.7 69.9 1
205 Transcor 0 84 48 1.28 80.0 72.0 1
206 Vista Park Apartments 1 119 47 1.31 79.9 69.6 2
207 Windsor Estates 2 118 46 1.50 77.1 67.6 2
208 Roland Park Shopping Center 4 176 44 1.32 74.6 57.9 1
209 Pathmark Shopping Center 2 118 46 1.86 25.1 11.6 1
210 Old Lake Place Shopping Center 1 119 47 1.63 71.5 61.7 1
211 West Flagler Shops 1 119 47 1.58 74.9 64.5 1
212 3128 North Ashland Avenue 3 117 45 1.53 72.4 63.6 1
213 Westgate Plaza 1 239 47 1.40 74.9 47.4 1
214 Hillsboro Shoppes 1 119 47 1.56 74.9 65.0 1
215 Kmart - Tacoma 1 239 47 1.41 75.0 47.2 1
216 Post Office Annex Building 1 119 59 1.31 73.2 64.0 1
217 Eckerd - Greensboro 1 236 47 NAP NAP NAP 1
218 Regal Pointe Apartments 3 81 33 1.31 74.9 69.3 2
219 Clarksville Crossing 1 239 47 1.39 74.9 47.4 1
220 Merchants Plaza 1 119 47 1.40 71.4 62.6 1
221 Statewide Self Storage 1 119 47 1.88 58.3 47.0 1
222 25227 Grogans Mill Office Building 2 58 34 1.39 73.0 67.3 1
223 Florida Space Center 2 118 46 1.34 66.8 53.8 1
224 Fairway Gardens 3 117 45 1.25 74.7 59.8 2
225 Rite Aid - West Haven 3 235 45 NAP NAP NAP 1
226 Staples 1 119 47 1.39 74.5 65.3 1
227 Commerce Point 1 119 47 1.45 73.3 57.5 1
228 93 Broadway 2 118 46 1.40 73.2 64.2 1
229 Arvada Square Shopping Center 1 119 47 1.37 67.6 59.0 1
230 Battlefield Center 1 119 47 1.53 72.8 62.9 1
231 CVS - Asheboro 0 237 120 NAP NAP NAP 1
232 NFC Office Plaza 2 118 46 1.35 76.4 61.4 1
233 Oakwood Terrace Apartments 0 120 48 1.37 74.5 63.8 2
234 CVS - Ballentine 0 240 120 NAP NAP NAP 1
235 Jackson's Landing Apartments 2 118 46 1.39 79.9 69.9 1
236 Centergate 3 117 45 1.56 73.3 64.5 1
237 King Kullen Shopping Center 2 118 46 3.59 18.0 8.3 1
238 Anaheim Springs Office 2 118 46 1.35 71.3 57.4 1
239 AUS Building 4 116 44 1.36 74.4 62.7 1
240 Queens West Industustrial 1 119 47 1.35 56.9 49.5 1
241 Forest Hill Park Apartment Complex 2 118 46 1.53 77.9 62.6 2
242 West Brandon Square 2 118 46 1.43 74.6 65.2 1
243 CVS - Stanley 1 236 119 NAP NAP NAP 1
244 Deer Park 4 116 44 1.34 76.0 66.9 2
245 Fairmont Building 3 117 45 1.30 74.5 60.5 1
246 Papago Place 2 58 24 1.41 74.9 71.1 1
247 Humble Office Building 2 118 46 1.36 72.0 63.0 1
248 Golden Oak Village Apartments 2 178 46 1.21 82.3 63.2 2
249 CVS - Denver 1 239 119 NAP NAP NAP 1
250 Free State Self Storage 2 118 46 1.32 73.6 59.5 1
251 Brookmeade Plaza 1 119 47 1.39 73.1 59.1 1
252 80 Garden Court 2 118 34 1.31 52.6 46.0 1
253 CVS - Sunset Beach 1 239 119 NAP NAP NAP 1
254 Centenial Mall 3 117 33 1.35 66.5 53.7 1
255 CVS - King's Mountian 3 235 117 NAP NAP NAP 1
256 Southland (7-11) 1 176 47 NAP NAP NAP 1
257 North Grove Plaza 0 120 25 1.29 68.2 60.8 1
258 Thomas Center 1 119 47 1.47 60.4 48.6 1
259 4708 North Milwaukee 3 117 45 1.48 72.4 63.6 1
260 9255 South Western Avenue 3 117 45 1.41 72.4 63.6 1
261 Greenwich/Laguardia 2 118 46 1.37 69.4 60.4 1
262 Kmart - Rock Springs Plaza 1 239 47 1.34 66.6 42.0 1
263 Rockwood Plaza Shopping Center 2 118 46 1.42 63.5 55.7 1
264 Sierra Carmichael Apartments 3 117 45 1.31 66.5 58.3 2
265 1501 Estes Avenue 3 117 45 1.30 69.9 61.1 1
266 581 Wolcott Street 3 237 234 1.33 69.6 NAP 1
</TABLE>
Annex A-2 - 4
<PAGE>
<TABLE>
<CAPTION>
Original Remaining
Interest-Only Interest-Only
Control Period Period Amortization Cut-off Date Monthly
No. Property Name (months) (months) Type Balance ($) P&I ($)
=============================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
267 Dixie Commerce Center Balloon 1,376,388 9,311
268 IHOP Fully Amortizing 1,375,000 Step*
269 Ridge at White Oak Apartments Balloon 1,366,055 9,175
270 388 Tarrytown Road Balloon 1,299,209 8,728
271 Governors Park Office Park Balloon 1,298,133 8,684
272 Remax Building Balloon 1,297,438 8,833
273 Ferndale Mobile Village Balloon 1,296,626 8,416
274 Lions Lair Travel Park Balloon 1,296,024 9,556
275 Rite Aid - Richmond Balloon 1,278,688 Step*
276 Hartstown Village Apartment Complex Balloon 1,197,302 8,543
277 6300 Richmond Balloon 1,196,106 8,589
278 Pindle East Apartments Balloon 1,160,178 8,286
279 Lake of 610 Balloon 1,097,536 7,845
280 Ames - Palmer Plaza Balloon 1,049,419 7,263
281 Grogan's Forest Shopping Center Balloon 898,388 6,843
282 Bearden Place Shopping Center Balloon 747,765 5,577
283 56th Street Warehouse Fully Amortizing 745,925 6,719
284 Frys In-Line Space Balloon 709,597 4,872
285 2120 South Oak Park Ave Balloon 698,621 4,756
286 Shops on Cumberland Balloon 598,212 4,461
$2,025,590,706
==============
<CAPTION>
Original
Balloon/ Amortization
Control ARD Mortgage Term
No. Property Name Balance ($) ARD Maturity Rate (%) (months)
==========================================================================================================================
<C> <S> <C> <C> <C> <C> <C>
267 Dixie Commerce Center 1,208,350 7/1/08 7.140 360
268 IHOP NAP 8/1/18 7.100 237
269 Ridge at White Oak Apartments 1,195,603 9/1/08 7.080 360
270 388 Tarrytown Road 1,136,604 10/1/08 7.090 360
271 Governors Park Office Park 1,134,978 9/1/08 7.040 360
272 Remax Building 1,140,208 8/1/08 7.210 360
273 Ferndale Mobile Village 1,124,146 10/1/08 6.750 360
274 Lions Lair Travel Park 1,054,215 8/1/08 7.440 300
275 Rite Aid - Richmond 375,480 11/1/16 7.050 257
276 Hartstown Village Apartment Complex 962,305 9/1/08 7.080 300
277 6300 Richmond 964,256 8/1/08 7.140 300
278 Pindle East Apartments 933,595 8/1/08 7.080 300
279 Lake of 610 964,876 9/1/05 7.100 300
280 Ames - Palmer Plaza 661,316 10/1/18 7.390 360
281 Grogan's Forest Shopping Center 607,081 10/1/08 6.750 240
282 Bearden Place Shopping Center 610,576 8/1/08 7.570 300
283 56th Street Warehouse NAP 9/1/14 7.500 192
284 Frys In-Line Space 624,318 10/1/08 7.310 360
285 2120 South Oak Park Ave 613,958 8/1/08 7.210 360
286 Shops on Cumberland 488,462 8/1/08 7.570 300
<CAPTION>
Remaining Scheduled
term Maturity
to ARD Remaining Cut-off Cut-off or ARD
Control Seasoning or Maturity Lockout Date Date Date Loan
No. Property Name (months) (months) Months DSCR (x) LTV (%) LTV (%) Group
====================================================================================================================================
<C> <S> <C> <C> <C> <C> <C> <C> <C>
267 Dixie Commerce Center 4 116 44 1.41 74.6 65.5 1
268 IHOP 0 237 48 NAP NAP NAP 1
269 Ridge at White Oak Apartments 2 118 46 1.33 79.9 69.9 1
270 388 Tarrytown Road 1 119 47 1.41 72.2 63.1 1
271 Governors Park Office Park 2 118 46 1.33 74.2 64.9 1
272 Remax Building 3 117 45 1.59 73.3 64.4 1
273 Ferndale Mobile Village 1 119 47 1.29 76.3 66.1 1
274 Lions Lair Travel Park 3 117 45 1.48 70.4 57.3 1
275 Rite Aid - Richmond 2 216 118 NAP NAP NAP 1
276 Hartstown Village Apartment Complex 2 118 46 1.46 74.8 60.1 2
277 6300 Richmond 3 117 45 1.45 70.4 56.7 1
278 Pindle East Apartments 3 117 45 1.40 72.5 58.3 2
279 Lake of 610 2 82 46 1.37 73.2 64.3 1
280 Ames - Palmer Plaza 1 239 47 1.29 70.0 44.1 1
281 Grogan's Forest Shopping Center 1 119 47 1.40 71.9 48.6 1
282 Bearden Place Shopping Center 3 117 45 1.30 72.6 59.3 1
283 56th Street Warehouse 2 190 46 1.26 67.8 NAP 1
284 Frys In-Line Space 1 119 47 1.37 75.1 66.1 1
285 2120 South Oak Park Ave 3 117 45 1.48 69.9 61.4 1
286 Shops on Cumberland 3 117 45 1.50 74.3 60.7 1
</TABLE>
<PAGE>
EXHIBIT K
FORM OF SCHEDULE OF INITIAL SUB-SERVICERS
<PAGE>
Sub-Servicers
Laureat
Legg Mason
Northland Financial Company
Newport Mortgage Company
<PAGE>
EXHIBIT L
FORM OF CSSA LOAN FILE REPORT
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
<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)
==================================== ===============================================================================================
<CAPTION>
==================================== ================================ =====================================================
Field Format
Field Name Number Type Example Description/Comments
==================================== ================================ =====================================================
==================================== ================================ =====================================================
<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
Prospectus Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
Current Beginning Sched Balance 6 Numeric 100000.00 Outstanding Scheduled Principal Balance At The
Beginning Of The Current Period
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Scheduled Principal Balance At The End
Of The Current Period
Paid To Date 8 AN YYYYMMDD Due Date Of The Last Interest Payment Received
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The Current
Period Gross Interest Rate
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To Calculate The
Current Period Scheduled Interest
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final
Payment
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Pass-Through Rate
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Pass-Through Rate
Net Pass-Through Rate 18 Numeric 0.0897 Annualized Interest Rate Applicable To Calculate
The Current Period Remittance Int.
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next
Period Gross Interest Rate
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To Calc
Of The Next Period Sch. Interest
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
Next Payment Adjustment Date 22 AN YYYYMMDD 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)
<TABLE>
<CAPTION>
==================================== ================================ =====================================================
Field Format
Field Name Number Type Example Description/Comments
==================================== ================================ =====================================================
==================================== ================================ =====================================================
<S> <C> <C> <C>
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The Current
Period
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The Current
Period
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal And Interest Payment Due For
The Current Period
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount Due
For The Current Period
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During
The Related Collection Period
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The Related
Collection Period
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To
Prepayment Of Loan Prior To Maturity
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00 Scheduled Gross Interest Applicable To The
Prepayment Amount
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
Most Recent ASER $ 33 Numeric 1000.00 Excess Of The Principal Balance Over The Defined
Appraisal Percentage
Most Recent ASER Date 34 AN YYYYMMDD Date ASER Amount Applied To Loan
Cumulative ASER $ 35 Numeric 1000.00 Cumulative ASER Amount
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End Of
The Current Period
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current
Period
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End
Of The Current Period
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The
Current Period
Status of Loan 40 AN 1 See Status Of Loan Legend
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy "Y",
Else "N")
Foreclosure Date 42 AN YYYYMMDD Date Of Foreclosure
REO Date 43 AN YYYYMMDD Date Of REO
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
Net Proceeds Received on Liquidation 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be Remitted To
The Tr Per The Tr Doc'n
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be Netted
From The Tr Per The Tr Doc'n
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation Proceeds
Received
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
Modification Code 49 Numeric 1 See Modification Codes Legend
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
Preceding Fiscal Year Revenue 52 Numeric 1000.00 Preceding Fiscal Year Revenue
Preceding Fiscal Year Expenses 53 Numeric 1000.00 Preceding Fiscal Year Expenses
Preceding Fiscal Year NOI 54 Numeric 1000.00 Preceding Fiscal Year Net Op Income
Preceding Fiscal Year Debt Svc Amt. 55 Numeric 1000.00 Preceding Fiscal Year Debt Svc Amount
Preceding Fiscal Year DSCR 56 Numeric 2.55 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 Documention
- ----------------------------------
Page 2 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
==================================== ================================ =====================================================
Field Format
Field Name Number Type Example Description/Comments
==================================== ================================ =====================================================
==================================== ================================ =====================================================
<S> <C> <C> <C>
Preceding Fiscal Yr Physical Occ'y 57 Numeric 0.85 Preceding Fiscal Year Physical Occupancy
Preceding FY Financial As of Date 58 AN YYYYMMDD Preceding Fiscal Year Financial As Of Date
Second Preceding FY Revenue 59 Numeric 1000.00 Second Preceding Fiscal Year Revenue
Second Preceding FY Expenses 60 Numeric 1000.00 Second Preceding Fiscal Year Expenses
Second Preceding FY NOI 61 Numeric 1000.00 Second Preceding Fiscal Year Net Operating Income
Second Preceding FY Debt Service 62 Numeric 1000.00 Second Preceding Fiscal Year Debt Service
Second Preceding FY DSCR 63 Numeric 2.55 Second Preceding Fiscal Year Debt Svc Cvrge Ratio
Sec Preceding FY Physical Occ'y 64 Numeric 0.85 Second Preceding Fiscal Year Physical Occupancy
Sec Preceding FY Fin'l As of Date 65 AN YYYYMMDD Second Preceding Fiscal Year Financial As Of Date
Most Recent Fiscal YTD Revenue 66 Numeric 1000.00 Most Recent Fiscal Year To Date Revenue
Most Recent Fiscal YTD Expenses 67 Numeric 1000.00 Most Recent Fiscal Year To Date Expenses
Most Recent Fiscal YTD NOI 68 Numeric 1000.00 Most Recent Fiscal Year To Date Net Operating Income
Most Recent Fiscal YTD Debt Service 69 Numeric 1000.00 Most Recent Fiscal Year To Date Debt Service
Most Recent Fiscal YTD DSCR 70 Numeric 2.55 Most Recent Fiscal Year To Date Debt Service
Coverage Ratio
Most Recent Fiscal YTD Phys. Occ. 71 Numeric 0.85 Most Recent Fiscal Year To Date Physical Occupancy
Most Recent Fiscal YTD Start Date 72 AN YYYYMMDD Most Recent Fiscal Year To Date Start Date
Most Recent Fiscal YTD End Date 73 AN YYYYMMDD Most Recent Fiscal Year To Date End Date
Most Recent Appraisal Date 74 AN YYYYMMDD The Date Of The Latest Available Appraisal For
The Property
Most Recent Appraisal Value 75 Numeric 100000.00 The Latest Available Appraisal Value For
The Property
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
Most Recent Spec Svc Transfer Date 77 AN YYYYMMDD Date Transferred To The Special Servicer
Most Recent Master Svc Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer
Date Asset Expected to Be Resolved 79 AN YYYYMMDD Date Asset Is Expected To Be Resolved
Year Last Renovated 80 AN 1997 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.
- ---------------------------
Page 3 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Periodic" Update File
(Data Record Layout)
<TABLE>
<CAPTION>
======================================= =========================================================== ==============================
Liquidation/Prepayment Code Status of Mortgage Loan Modification Code
Legend Legend Legend
======================================= =========================================================== ==============================
<S> <C> <S> <C> <S><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 REO ==============================
==========================================================
<CAPTION>
==========================================================
Workout Strategy Code
Legend
==========================================================
<S> <C>
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>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
<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)
============================================ ======================================================================================
<CAPTION>
============================================ =================================== =================================================
Field Format
Field Name Number Type Example Description/Comments
============================================ =================================== =================================================
============================================ =================================== =================================================
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To
Each Loan Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Indentification Number Assigned To
Each Collateral Item In A Pool
Offering Document Loan Id 4 AN 123 Unique Indentification 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 Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Without Yield Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Without Penalty
============================================ =================================== =================================================
</TABLE>
Page 1 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
============================================ =================================== =================================================
Field Format
Field Name Number Type Example Description/Comments
============================================ =================================== =================================================
============================================ =================================== =================================================
<S> <C> <C> <C> <C>
Prepayment Terms Description 21 AN Text Description Of Prepayment Terms (Not To
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 Date 24 AN YYYYMMDD Date Payment Originally Changed
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 Pay Adjustment Max-% 30 Numeric 0.03 Maximum Periodic % Increase To The
Borrowers P&I Payment Allowed Per The
Loan Agreement
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Maximum Periodic Dollar Increase To The
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 Months 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually...
Pay Reset Frequency In Months 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
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 Allowed (Y/N) 38 AN Y Y=Yes, N=No
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Maximum Lifetime Percentage Increase To
The Original Balance Allowed Per The
Loan Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Maximum Lifetime Dollar Increase To
The Original Balance Allowed Per The
Loan Agreement
Remaining Term At Securitization 41 Numeric 240 Remaining Number Of Months Until
Maturity Of Loan At Cutoff
Remaining Amor-Tm At Securitiz'n 42 Numeric 360 Remaining Number Of Months Loan
Amortized Over At Cutoff
Maturity Date At Securitization 43 AN YYYYMMDD The Scheduled Maturity Date Of The
Mortgage Loan At Securitization
Sched Prin Bal At Securitization 44 Numeric 1000000.00 The Scheduled Principal Balance Of The
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 0.0947 Cutoff Annualized Interest Rate
Applicable To The Calculation Of
Remittance Interest
Periodic P&I Payment At Securitiz'n 53 Numeric 3000.00 The Periodic Scheduled Principal &
Interest Payment
============================================ =================================== =================================================
</TABLE>
Page 2 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
============================================ =================================== =================================================
Field Format
Field Name Number Type Example Description/Comments
============================================ =================================== =================================================
============================================ =================================== =================================================
<S> <C> <C> <C> <C>
# 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"
Property Type Code 61 AN MF If Number Of Properties Is Greater Than
1 Then "Various" (See Property Type
Code Legend)
Net Square Feet At Securitization 62 Numeric 25000 If Number Of Properties Is Greater Than
1 Then "000000"
# Of Units/Beds/Rms At Securitiz'n 63 Numeric 75 If Number Of Properties Is Greater Than
1 Then "000000"
Year Built 64 AN 1990 If Number Of Properties Is Greater Than
1 Then "000000"
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 Securitization 67 Numeric 1000000.00 Appraisal Value At Securitization
Appraisal Date At Securitization 68 AN YYYYMMDD Appraisal Date At Securitization
Physical Occupancy At Securitization 69 Numeric 0.88 Physical Occupancy At Securitization
Revenue At Securitization 70 Numeric 100000.00 Revenue At Securitization
Operating Expenses At Securitization 71 Numeric 100000.00 Expenses At Securitization
Securitization Financials As Of Date 72 AN YYYYMMDD Securitization Financials As 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 Grouping 75 Numeric 9(3) All Loans With The Same Numeric Value Are
Crossed
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, N=No
Lien Position At Securitization 78 Numeric 1 1=First, 2=Second...
============================================ =================================== =================================================
</TABLE>
Page 3 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
======================================== ========================================== =========================================
Payment Type Code ARM Index Code Rounding Code
Legend Legend Legend
======================================== ========================================== =========================================
<S> <C> <S> <C> <S> <C>
1 Fully Amortizing A 11 FHLB COFI (1 Month) 1 Unrounded
2 Amortizing Balloon B 11 FHLB COFI (6 Month) 2 Nearest Percentage Increment
3 Interest Only / Balloon C 1 Year CMT Weekly Average Treasury 3 Up To Nearest Percentage Increment
4 Interest Only / Amortizing D 3 Year CMT Weekly Average Treasury 4 Down To Nearest Percentage Increment
5 Interest Only / Amortizing / Balloon E 5 Year CMT Weekly Average Treasury
6 Principal Only F Wall Street Journal Prime Rate
9 Other G 1 Month LIBOR
H 3 Month LIBOR
======================================== I 6 Month LIBOR =========================================
J National Mortgage Index Rate
All Others Use Short Text Description
==========================================
<CAPTION>
==========================================
Property Types Code
Legend
==========================================
<S> <C>
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
==========================================
</TABLE>
Page 4 of 4
<PAGE>
EXHIBIT M
FORM OF CSSA PROPERTY FILE REPORT
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
============================================= ================================
Field Format
Field Name Number Type Example
============================================= ================================
Transaction Id 1 AN XXX97001
Loan ID 2 AN XXX9701A
Prospectus Loan ID 3 AN 00000000012345
Property ID 4 AN 1001-001
Distribution Date 5 AN YYYYMMDD
Cross-Collateralized Loan Grouping 6 Numeric 9(3)
Property Name 7 AN Text
Property Address 8 AN Text
Property City 9 AN Text
Property State 10 AN FL
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
# Of Units/Beds/Rooms At Securitization 17 Numeric 75
Property Status 18 AN 1
Allocated Percentage of Loan at Securitization 19 Numeric 0.75
Current Allocated Percentage 20 Numeric 0.75
Current Allocated Loan Amount 21 Numeric 5900900
Ground Lease (Y/S/N) 22 AN N
Other Escrow / Reserve Balances 23 Numeric 25000
Most Recent Appraisal Date 24 AN YYYYMMDD
Most Recent Appraisal Value 25 Numeric 1000000
Date Asset is Expected to Be Resolved 26 AN YYYYMMDD
Foreclosure Date 27 AN YYYYMMDD
============================================= ================================
<TABLE>
<CAPTION>
============================================= ==================================================================== ==========
CSSA
Field Name Description/Comments Loan
============================================= ==================================================================== ==========
<S> <C> <C>
Transaction Id S1,P1
Loan ID S3,P3
Prospectus Loan ID From Offering Document S4,P4
Property ID Should contain Prospectus ID and propety identifier, e.g., 1001-001,
1000-002
Distribution Date P5
Cross-Collateralized Loan Grouping All Loans With The Same Numeric Value Are Crossed S75
Property Name S55
Property Address S56
Property City S57
Property State S58
Property Zip Code S59
Property County S60
Property Type Code S61
Year Built S64
Year Last Renovated P80
Net Square Feet At Securitization RT, IN, WH, OF, MU, SS,OT = SF S62
# Of Units/Beds/Rooms At Securitization MF, MHP, LO, HC = Units S63
Property Status 1=FCL, 2=REO, 3=Defeased, 4=Partial Release, 5= Released, 6=
Same as at securitization
Allocated Percentage of Loan at Securitization Issuer to allocate loan % attributable to property for
multi-property loans
Current Allocated Percentage Calculation based on Current Allocated Loan Amount and Current
SPB for associated loan.
Current Allocated Loan Amount Maintained by servicer. P7
Ground Lease (Y/S/N) Either Y=Yes, S=Subordinat, N= No ground lease S74
Other Escrow / Reserve Balances S77
Most Recent Appraisal Date P74
Most Recent Appraisal Value P75
Date Asset is Expected to Be Resolved Could be different dates for different properties if foreclosing P79
Foreclosure Date P42
============================================= ==================================================================== ==========
</TABLE>
"Setup File" - Should be included on the diskette
as part of the offering document.
Page 1 of 6
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
============================================= ================================
Field Format
Field Name Number Type Example
============================================= ================================
REO Date 28 AN YYYYMMDD
Occupancy % 29 Numeric 0.75
Occupancy Date 30 Numeric YYYYMMDD
Date Lease Rollover Review 31 AN YYYYMMDD
% Sq. Feet expiring 1-12 months 32 Numeric 0.20
% Sq. Feet expiring 13-24 months 33 Numeric 0.20
% Sq. 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 37 AN Text
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text
Square Feet of 2nd Largest Tenant 40 Numeric 15000
3rd Largest Tenant 41 AN Text
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric 12
Securitization Financials As Of Date 44 AN YYYYMMDD
Revenue At Securitization 45 Numeric 1000000
Operating Expenses At Securitization 46 Numeric 1000000
NOI At Securitization 47 Numeric 1000000
DSCR At Securitization 48 Numeric 1.5
Appraisal Value At Securitization 49 Numeric 1000000
Appraisal Date At Securitization 50 AN YYYYMMDD
Physical Occupancy At Securitization 51 Numeric
Date of Last Inspection 52 AN YYYYMMDD
============================================= ================================
<TABLE>
<CAPTION>
============================================= ==================================================================== ==========
CSSA
Field Name Description/Comments Loan
============================================= ==================================================================== ==========
<S> <C> <C>
REO Date P43
Occupancy % Map to "Most Recent Fiscal YTD Phys. Occ." in CSSA P71
Occupancy Date Add a new field to the CSSA Loan file. P71
Date Lease Rollover Review Roll over review to be completed every 12 months
% Sq. Feet expiring 1-12 months
% Sq. Feet expiring 13-24 months
% Sq. Feet expiring 25-36 months
% Sq. Feet expiring 37-48 months
% Sq. Feet expiring 49-60 months
Largest Tenant For Office, WH, Retail, Industrial *Only if disclosed in
the offering document
Square Feet of Largest Tenant
2nd Largest Tenant For Office, WH, Retail, Industrial *Only if disclosed in
the offering document
Square Feet of 2nd Largest Tenant
3rd Largest Tenant For Office, WH, Retail, Industrial *Only if disclosed in
the offering document
Square Feet of 3rd Largest Tenant
Fiscal Year End Month Needed to indicate month ending for borrower's Fiscal Year
Securitization Financials As Of Date S72
Revenue At Securitization S70
Operating Expenses At Securitization S71
NOI At Securitization S65
DSCR At Securitization S66
Appraisal Value At Securitization S67
Appraisal Date At Securitization S68
Physical Occupancy At Securitization S69
Date of Last Inspection
============================================= ==================================================================== ==========
</TABLE>
"Setup File" - Should be included on the diskette
as part of the offering document.
Page 2 of 6
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
============================================= ================================
Field Format
Field Name Number Type Example
============================================= ================================
Preceding FY Financial As of Date 53 AN YYYYMMDD
Preceding Fiscal Year Revenue 54 Numeric 1,000,000
Preceding Fiscal Year Expenses 55 Numeric 1,000,000
Preceding Fiscal Year NOI 56 Numeric 1,000,000
Preceding Fiscal Year Debt Service Amt. 57 Numeric 1,000,000
Preceding Fiscal Year DSCR 58 Numeric 1.30
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.90
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD
Second Preceding FY Revenue 61 Numeric 1,000,000
Second Preceding FY Expenses 62 Numeric 1,000,000
Second Preceding FY NOI 63 Numeric 1,000,000
Second Preceding FY Debt Service 64 Numeric 1,000,000
Second Preceding FY DSCR 65 Numeric 1.30
Sec Preceding FY Physical Occupancy 66 Numeric 0.90
============================================= ================================
<TABLE>
<CAPTION>
============================================= ==================================================================== ==========
CSSA
Field Name Description/Comments Loan
============================================= ==================================================================== ==========
<S> <C> <C>
Preceding FY Financial As of Date P58
Preceding Fiscal Year Revenue P52
Preceding Fiscal Year Expenses P53
Preceding Fiscal Year NOI P54
Preceding Fiscal Year Debt Service Amt. P55
Preceding Fiscal Year DSCR P56
Preceding Fiscal Year Physical Occupancy P57
Sec Preceding FY Financial As of Date P65
Second Preceding FY Revenue P59
Second Preceding FY Expenses P60
Second Preceding FY NOI P61
Second Preceding FY Debt Service P62
Second Preceding FY DSCR P63
Sec Preceding FY Physical Occupancy P64
============================================= ==================================================================== ==========
</TABLE>
"Setup File" - Should be included on the diskette
as part of the offering document.
Page 3 of 6
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
===================================================================================================================================
Field Name Relationship to Corresponding CSSA 100.1 Field
===================================================================================================================================
<S> <C>
Transaction Id Same as CSSA Loan File
Loan ID Same as CSSA Loan File
Prospectus Loan ID Same as CSSA Loan File
Property ID
Distribution Date Same as CSSA Loan File
Cross-Collateralized Loan Grouping
Property Name If Multi-Prop, no rollup to CSSA Loan File. Populate S55 with"Various."
Property Address If Multi-Prop, no rollup to CSSA Loan File. Populate S56 with"Various."
Property City If Multi-Prop, and all same then populate S57 with City, otherwise, "Various".
Missing info= "incomplete"
Property State If Multi-Prop, and all same then populate S58 with State, otherwise, "Various".
Missing info= "incomplete"
Property Zip Code If Multi-Prop, and all same then populate S59 with Zip, otherwise, "Various".
Missing info= "incomplete"
Property County If Multi-Prop, and all same then populate S60 with County, otherwise, "Various".
Missing info= "incomplete"
Property Type Code If Multi-Prop and all same then populate S61 with property type otherwise "Various".
Missing Info ="incomplete"
Year Built If Multi-Prop, and all same then populate S64 with year otherwise, "000000".
Year Last Renovated If Multi-Prop, and all same then populate P80 with year otherwise, "000000".
Net Square Feet At Securitization Roll-up to loan file if populated. If missing one or more than populate with "00000"
# Of Units/Beds/Rooms At Securitization Roll-up to loan file if populated. If missing one or more than populate with "00000"
Property Status If multi-prop and all same than populate CSSA Loan file with property, status,
otherwise various.
Allocated Percentage of Loan at Securitization No field needed in Cssa Loan file
Current Allocated Percentage No field needed in Cssa Loan file
Current Allocated Loan Amount Roll-up to Current Ending SPB (P7)
Ground Lease (Y/S/N) If any property is Y, or S then S74=Y
Other Escrow / Reserve Balances If any property populated, then S77=Y
Most Recent Appraisal Date If Multi-Prop, and all same then populate P74 with date, otherwise, "000000".
Most Recent Appraisal Value Roll-up to CSSA Loan File if populated. If missing any appraisal value, than
populate P75 with "000000)
Date Asset is Expected to Be Resolved If Multi-Prop, latest date from affiliated properties for P79.
Foreclosure Date If Multi-Prop, and all same then populate P42 with date, otherwise, "000000".
===================================================================================================================================
</TABLE>
"Setup File" - Should be included on the diskette
as part of the offering document.
Page 4 of 6
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
===================================================================================================================================
Field Name Relationship to Corresponding CSSA 100.1 Field
===================================================================================================================================
<S> <C>
REO Date If Multi-Prop, and all same then populate P43 with date, otherwise, "000000".
Occupancy % [Weighted Average] For P71=Sum((Curr. Allocated % Prop A) *(Occupancy Prop A)...
(Curr. Allocated % Prop Z) * (Occupancy Prop Z)).
If missing one, then, "00000"
Occupancy Date If Multi-Prop, and all same then populate with date, otherwise, "various+K62".
Date Lease Rollover Review No Roll up to the CSSA loan format.
% Sq. Feet expiring 1-12 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 13-24 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 25-36 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 37-48 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 49-60 months No Roll up to the CSSA loan format.
Largest Tenant No Roll up to the CSSA loan format.
Square Feet of Largest Tenant No Roll up to the CSSA loan format.
2nd Largest Tenant No Roll up to the CSSA loan format.
Square Feet of 2nd Largest Tenant No Roll up to the CSSA loan format.
3rd Largest Tenant No Roll up to the CSSA loan format.
Square Feet of 3rd Largest Tenant No Roll up to the CSSA loan format.
Fiscal Year End Month No Roll up to the CSSA loan format.
Securitization Financials As Of Date If Multi-Prop, and all same then populate S72 with date, otherwise, "000000".
Revenue At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S70 with "0000"
Operating Expenses At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S71 with "0000"
NOI At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S85 with "0000"
DSCR At Securitization [Weighted Average] S66=Sum((Allocated % at Sec. Prop A) *(DSCR Prop A)...
((Allocated % at Sec. Prop Z) * (DSCR Prop Z). If missing one, "00000"
Appraisal Value At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S70 with "0000"
Appraisal Date At Securitization If Multi-Prop, and all same then populate S68 with date, otherwise, "000000".
Physical Occupancy At Securitization Weighted Average
Date of Last Inspection
===================================================================================================================================
</TABLE>
"Setup File" - Should be included on the diskette
as part of the offering document.
Page 5 of 6
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
<TABLE>
<CAPTION>
===================================================================================================================================
Field Name Relationship to Corresponding CSSA 100.1 Field
===================================================================================================================================
<S> <C>
Preceding FY Financial As of Date If Multi-Prop, and all same then populate P58 with date, otherwise,
"000000+K23K46".K1
Preceding Fiscal Year Revenue No Roll up to the CSSA loan format.
Preceding Fiscal Year Expenses No Roll up to the CSSA loan format.
Preceding Fiscal Year NOI No Roll up to the CSSA loan format.
Preceding Fiscal Year Debt Service Amt. No Roll up to the CSSA loan format.
Preceding Fiscal Year DSCR No Roll up to the CSSA loan format.
Preceding Fiscal Year Physical Occupancy No Roll up to the CSSA loan format.
Sec Preceding FY Financial As of Date No Roll up to the CSSA loan format.
Second Preceding FY Revenue No Roll up to the CSSA loan format.
Second Preceding FY Expenses No Roll up to the CSSA loan format.
Second Preceding FY NOI No Roll up to the CSSA loan format.
Second Preceding FY Debt Service No Roll up to the CSSA loan format.
Second Preceding FY DSCR No Roll up to the CSSA loan format.
Sec Preceding FY Physical Occupancy No Roll up to the CSSA loan format.
===================================================================================================================================
</TABLE>
"Setup File" - Should be included on the diskette
as part of the offering document.
Page 6 of 6
<PAGE>
EXHIBIT N
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
<PAGE>
LB Commercial Mortgage Trust Series 1998-C4
COMPARATIVE FINANCIAL STATUS REPORT
as of _______________
<TABLE>
<CAPTION>
============================================================================================================================
S4 S57 S58 P7 P8 S72 S69 S70 S65 S66
- ----------------------------------------------------------------------------------------------------------------------------
Original Underwriting
- ----------------------------------------------------------------------------------------------------------------------------
Information
- ----------------------------------------------------------------------------------------------------------------------------
Basis Year
- ----------------------------------------------------------------------------------------------------------------------------
Last Financial
Property Scheduled Paid Annual Info
Inspect Loan Thru Debt as of % Total % (1)
Prospectus ID City State Date Balance Date Service Date Occ Revenue NOI DSCR
- ----------------------------------------------------------------------------------------------------------------------------
yy/mm yy/mm
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
List all loans currently in deal with or without information largest to smallest loan
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
Total: $ $ WA $ $ WA
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
============================================================================================================================
Received
- ----------------------------------------------------------------------------------------------------------------------------
Financial Information: Loans Balance
- ----------------------------------------------------------------------------------------------------------------------------
# % $ %
- ----------------------------------------------------------------------------------------------------------------------------
Current Full Year:
- ----------------------------------------------------------------------------------------------------------------------------
Current Full Yr. received with DSC < 1:
- ----------------------------------------------------------------------------------------------------------------------------
Prior Full Year:
- ----------------------------------------------------------------------------------------------------------------------------
Prior Full Yr. received with DSC < 1:
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
(1) DSCR should match to Operating Statement and is normally calculated using
NOI / Debt Service.
- ----------------------------------------------------------------------------------------------------------------------------
(2) Net change should compare the latest year to the underwriting year
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
<CAPTION>
================================================================================================================================
S4 P65 P64 P59 P61 P63 P58 P57 P52 P54 P56 P72 P73 P66 P68 P70
- --------------------------------------------------------------------------------------------------------------------------------
2nd Preceding Annual Operating Preceding Annual Operating Trailing Financial
- --------------------------------------------------------------------------------------------------------------------------------
Information Information Information
- --------------------------------------------------------------------------------------------------------------------------------
as of _______ Normalized as of _______ Normalized Month Reported Actual
- --------------------------------------------------------------------------------------------------------------------------------
Financial Financial
Info Info FS FS
as of % Total $ (1) as of % Total $ (1) Start End Total $ (%)
Prospectus ID Date Occ Revenue NOI DSCR Date Occ Revenue NOI DSCR Date Date Revenue NOI DSC
- --------------------------------------------------------------------------------------------------------------------------------
yy/mm yy/mm yy/mm yy/mm
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
Total: WA $ $ WA WA $ $ WA WA $ $ WA
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
================================================================================================================================
Required
- --------------------------------------------------------------------------------------------------------------------------------
Financial Information Loans Balance
- --------------------------------------------------------------------------------------------------------------------------------
# % $ %
- --------------------------------------------------------------------------------------------------------------------------------
Current Full Year:
- --------------------------------------------------------------------------------------------------------------------------------
Current Full Yr. received with DSC < 1:
- --------------------------------------------------------------------------------------------------------------------------------
Prior Full Year:
- --------------------------------------------------------------------------------------------------------------------------------
Prior Full Yr. received with DSC < 1:
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
(1) DSCR should match to Operating Statement and is normally calculated using
NOI / Debt Service.
- --------------------------------------------------------------------------------------------------------------------------------
(2) Net change should compare the latest year to the underwriting year
- --------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
=============================================================
S4 (2)
- -------------------------------------------------------------
Net Change
- -------------------------------------------------------------
- -------------------------------------------------------------
Preceding & Basis
- -------------------------------------------------------------
%
% Total (1)
Prospectus ID Occ Revenue DSC
- -------------------------------------------------------------
- -------------------------------------------------------------
<S> <C> <C> <C>
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
Total: WA $ WA
- -------------------------------------------------------------
- -------------------------------------------------------------
=============================================================
- -------------------------------------------------------------
Financial Information:
- -------------------------------------------------------------
- -------------------------------------------------------------
Current Full Year:
- -------------------------------------------------------------
Current Full Yr. received with DSC < 1:
- -------------------------------------------------------------
Prior Full Year:
- -------------------------------------------------------------
Prior Full Yr. received with DSC < 1:
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
(1) DSCR should match to Operating Statement and is normally
calculated using NOI / Debt Service.
- -------------------------------------------------------------
(2) Net change should compare the latest year to the
underwriting year
- -------------------------------------------------------------
- -------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT O
FORM OF REO STATUS REPORT
<PAGE>
LB Commercial Mortgage Trust Series 1998-C4
REO STATUS REPORT
as of ___________
<TABLE>
<CAPTION>
===========================================================================================================================
S62 or
S4 S55 S61 S57 S58 S63 P8 P7 P37 P39 P38
- ---------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d)
- ---------------------------------------------------------------------------------------------------------------------------
Other
Short Name Sq Ft Paid Scheduled Total P&I Total Advances
(When Property or Thru Loan Advances Expenses (Taxes &
Prospectus ID Appropriate) Type City State Units Date Balance To Date To Date Escrow)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
<CAPTION>
=============================================================================================================================
S4 P25 P11 P58 P54 P81 P74 P75
- -----------------------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (k) (j) (f)=(k/j) (g) (h)=(.92*g)
- -----------------------------------------------------------------------------------------------------------------------------
Value Appraisal Loss
Current LTM LTM Cap using BPO or using 92%
Total Monthly Maturity NOI NOI/ Rate Valuation NOI & Internal Appr. or
Prospectus ID Exposure P&I Date Date DSC Assign Date Cap Rate Value** BPO (f)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
<CAPTION>
===============================================================================================================
S4 P35 P77 P82 P79
- ---------------------------------------------------------------------------------------------------------------
(i)=(g/a)
- ---------------------------------------------------------------------------------------------------------------
Total Appraisal REO Pending
Estimated Reduction Transfer Acquisition Resolution
Prospectus ID Recovery % Realized Date Date Date Comments
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
(1) Use he following codes; App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT P
FORM OF WATCH LIST REPORT
<PAGE>
LB Commercial Mortgage Trust Series 1998-C4
SERVICER WATCH LIST
as of ___________
<TABLE>
<CAPTION>
====================================================================================================================================
S4 S55 S61 S57 S58 P7 P8 P11 P54
- ------------------------------------------------------------------------------------------------------------------------------------
Short Name Scheduled Paid
Prospectus (When Property Loan Thru Maturity LTM Comment / Reason on Watch List
ID Appropriate) Type City State Balance Date Date DSCR
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
List all loans on watch list and reason sorted in decending balance order.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Total: $
- ------------------------------------------------------------------------------------------------------------------------------------
* LTM - Last 12 months either trailing or last annual
====================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT Q
FORM OF DELINQUENT LOAN STATUS REPORT
<PAGE>
LB Commercial Mortgage Trust Series 1998-C4
DELINQUENT LOAN STATUS REPORT
as of ___________
<TABLE>
<CAPTION>
====================================================================================================================================
62 or
S4 S55 S61 S57 S58 S63 P8 P7 P37 P39 P38
- ------------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d)
- ------------------------------------------------------------------------------------------------------------------------------------
Other
Short Name Sq Ft Paid Scheduled Total P&I Total Advances
(When Property or Thru Loan Advances Expenses (Taxes &
Prospectus ID Appropriate) Type City State Units Date Balance To Date To Date Escrow)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90 + DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
===================================================================================================================
S4 P25 P10 P11 P58 P54 P55 P81
- -------------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (f)=P38/P81
- -------------------------------------------------------------------------------------------------------------------
Value
Current Current LTM ***Cap using
Total Monthly Interest Maturity NOI LTM LTM Rate NOI &
Prospectus ID Exposure P&I Rate Date Date NOI DSCR Assigned Cap Rate
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90 + DAYS DELINQUENT
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
FCL - Foreclosure
- ------------------------------------------------------------------------------------------------------------------------------------
LTM - Latest 12 Months either Last Annual or Trailing 12 months
====================================================================================================================================
* Workout Strategy should match the CSSA Loan file using abreviated words in place of a code number such as (FCL - In
Foreclosure, MOD - Modification, DPO - Discount Payoff, NS - Note Sale, BK - Bankrupcy, PP - Payment Plan, TBD - To Be
Determined etc...) It is possible to combine the status codes if the loan is going in more than one direction. (i.e. FCL/Mod,
BK/Mod, BK/FCL/DPO)
- ------------------------------------------------------------------------------------------------------------------------------------
** App - Appraisal, BPO - Broker opinion, Int. - Internal Value
- ------------------------------------------------------------------------------------------------------------------------------------
*** How to determine the cap rate is agreed upon by Underwriter and special servicer - to be provided by a third party.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT R
FORM OF HISTORICAL LOAN MODIFICATION REPORT
<PAGE>
LB Commercial Mortgage Trust Series 1998-C4
HISTORICAL LOAN MODIFICATION REPORT
as of _________________
<TABLE>
<CAPTION>
=========================================================================================================================
S4 S57 S58 P49 P48 P7* P7* P50*
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
Extension Balance Balance at
Mod / per Docs When Sent the Effective # Mths
Prospectus Extension or Effect to Special Date of for Rate
ID City State Flag Servicer Date Servicer Rehabilitation Old Rate Change
=========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
- -------------------------------------------------------------------------------------------------------------------------
Information is as of modification. Each line it should not change in the future. Only new modifications should be added.
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
=========================================================================================================================
Total For All Loans:
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
Total For Loans in Current Month:
- -------------------------------------------------------------------------------------------------------------------------
# of Loans $ Balance
- -------------------------------------------------------------------------------------------------------------------------
Modifications:
- -------------------------------------------------------------------------------------------------------------------------
Maturity Date Extentions:
- -------------------------------------------------------------------------------------------------------------------------
Total:
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
<CAPTION>
=================================================================================================
S4 P50* P25* P25* P11* P11* P47
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
Future
Interest
Total # (1) Loss to
Mths for Realized Trust $
Prospectus New Old New Old New Change Loss to (Rate
ID Rate P&I P&I Maturity Maturity of Mod Trust $ Reduction) COMMENT
=================================================================================================
<S> <S> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
=================================================================================================
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
* The information in these columns is from a particular point in time and should
not change on this report once assigned.
- -------------------------------------------------------------------------------------
(1) Actual principal loss taken by bonds
- -------------------------------------------------------------------------------------
(2) Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
- -------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT S
FORM OF HISTORICAL LOSS ESTIMATE REPORT
<PAGE>
LB Commercial Mortgage Trust Series 1998-C4
HISTORICAL LOSS ESTIMATE REPORT (RE0-SOLD or DISCOUNTED PAYOFF)
as of _________________
<TABLE>
<CAPTION>
====================================================================================================================================
S4 S55 S61 S57 S58 P45/P7 P75 P45 P7 P37
- ------------------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b) (d) (e) (f)
- ------------------------------------------------------------------------------------------------------------------------------------
Latest
Short Name Appraisal Effect Net Amt Total
Prospectus (When Property % Received or Brokers Date of Sales Received Scheduled P&I
ID Appropriate) Type City State From Sale Opinion Sale Price from Sale Balance Advanced
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
- ------------------------------------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
Total all Loans:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
====================================================================================================================================
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
=============================================================================================================================
S4 P39+P38
- -----------------------------------------------------------------------------------------------------------------------------
(g) (h) (i)=d-(f+g+h) (k)=i-e (m) (n)=k+m (o)=n/e
- -----------------------------------------------------------------------------------------------------------------------------
Servicing Actual Minor Total Loss %
Prospectus Total Fees Losses Date Loss Adj to Minor Adj Loss with of Scheduled
ID Expenses Expense Net Proceeds Passed thru Passed thru Trust Passed thru Adjustment Balance
=============================================================================================================================
<S> <S> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
=============================================================================================================================
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
=============================================================================================================================
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT T
FORM OF NOI ADJUSTMENT WORKSHEET
<PAGE>
LB Commercial Mortgage Trust Series 1998-C4
Form of NOI ADJUSTMENT WORKSHEET for "year"
as of _____________
PROPERTY OVERVIEW
--------
LB Control Number
----------------------
Current Balance/Paid to Date
---------------------------------------------
Property Name
---------------------------------------------
Property Type
---------------------------------------------
Property Address, City, State
---------------------------------------------
Net Rentable Square Feet
----------------------
Year Built/Year Renovated
---------------------------------------
Year of Operations Borrower Adjustment Normalized
---------------------------------------
Occupancy Rate *
---------------------------------------
Average Rental Rate
---------------------------------------
*Occupancy rates are year end or the ending
date of the financial statement for the
period.
INCOME:
Number of Mos.Annualized "Year"
---------------------------------------------
Period Ended Borrower Adjustment Normalized
Statement Classification Actual
---------------------------------------------
Rental Income (Category 1)
---------------------------------------------
Rental Income (Category 2)
---------------------------------------------
Rental Income (Category 3)
---------------------------------------------
Pass Throughs/Escalations
---------------------------------------------
Other Income
---------------------------------------------
---------------------------------------------
Effective Gross Income $0.00 $0.00 $0.00
---------------------------------------------
Normalized - Full year financial statements
that have been reviewed by the Servicer.
OPERATING EXPENSES:
---------------------------------------------
Real Estate Taxes
---------------------------------------------
Property Insurance
---------------------------------------------
Utilities
---------------------------------------------
General & Administration
---------------------------------------------
Repairs and Maintenance
---------------------------------------------
Management Fees
---------------------------------------------
Payroll & Benefits Expense
---------------------------------------------
Advertising & Marketing
---------------------------------------------
Professional Fees
---------------------------------------------
Other Expenses
---------------------------------------------
Ground Rent
---------------------------------------------
Total Operating Expenses $0.00 $0.00 $0.00
---------------------------------------------
---------------------------------------------
Operating Expense Ratio
---------------------------------------------
---------------------------------------------
Net Operating Income $0.00 $0.00 $0.00
---------------------------------------------
---------------------------------------------
Leasing Commissions
---------------------------------------------
Tenant Improvements
---------------------------------------------
Replacement Reserve
---------------------------------------------
Total Capital Items $0.00 $0.00 $0.00
---------------------------------------------
---------------------------------------------
N.O.I. After Capital Items $0.00 $0.00 $0.00
---------------------------------------------
---------------------------------------------
Debt Service (per Servicer) $0.00 $0.00 $0.00
---------------------------------------------
Cash Flow after debt service $0.00 $0.00 $0.00
---------------------------------------------
---------------------------------------------
(1)DSCR: (NOI/Debt Service)
---------------------------------------------
---------------------------------------------
DSCR: (after reserves\Cap exp.)
---------------------------------------------
---------------------------------------------
Source of Financial Data:
---------------------------------------------
(ie. operating statements, financial
statements, tax return, other)
Notes and Assumptions:
================================================================================
This report should be completed by the Servicer for any "Normalization" of the
Borrower's numbers.
The "Normalized" column is used in the Operating Statement Analysis Report.
This report may vary depending on the property type and because of the way
information may vary in each borrower's statement.
Income: Comments
Expense: Comments
Capital Items: Comments
(1) Used in the Comparative Financial Status Report
<PAGE>
EXHIBIT U
FORM OF OPERATING STATEMENT ANALYSIS
<PAGE>
LB Commercial Mortgage Trust Series 1998-C4
OPERATING STATEMENT ANALYSIS REPORT
as of _____________
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW
---------------
LB Control Number
-----------------------------
Current Balance/Paid to Date
------------------------------------------------------------------------------------------
Property Name
------------------------------------------------------------------------------------------
Property Type
------------------------------------------------------------------------------------------
Property Address, City, State
------------------------------------------------------------------------------------------
Net Rentable Square Feet
-----------------------------
Year Built/Year Renovated
------------------------------------------------------------------
Year of Operations Underwriting 1994 1995 1996 Trailing
------------------------------------------------------------------
Occupancy Rate *
------------------------------------------------------------------
Average Rental Rate
------------------------------------------------------------------
* Occupancy rates are year end or the ending date of the financial statement for the
period.
<CAPTION>
INCOME: No. of Mos.
-------------
Number of Mos. Prior Year Current Yr.
------------------------------------------------------------------------------------------
Period Ended Underwriting 1994 1995 1996 97 Trailing** 1996-Base 1996-1995
Statement Classification Base Line Normalized Normalized Normalized as of / /97 Variance Variance
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------
Rental Income (Category 1)
------------------------------------------------------------------------------------------
Rental Income (Category 2)
------------------------------------------------------------------------------------------
Rental Income (Category 3)
------------------------------------------------------------------------------------------
Pass Through/Escalations
------------------------------------------------------------------------------------------
Other Income
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Effective Gross Income $0.00 $0.00 $0.00 $0.00 $0.00 % %
------------------------------------------------------------------------------------------
Normalized - Full year Financial statements that have been reviewed by the underwriter or
Servicer
** Servicer will not be expected to "Normalize" these YTD numbers.
OPERATING EXPENSES:
------------------------------------------------------------------------------------------
Real Estate Taxes
------------------------------------------------------------------------------------------
Property Insurance
------------------------------------------------------------------------------------------
Utilities
------------------------------------------------------------------------------------------
General & Administration
------------------------------------------------------------------------------------------
Repairs and Maintenance
------------------------------------------------------------------------------------------
Management Fees
------------------------------------------------------------------------------------------
Payroll & Benefits Expense
------------------------------------------------------------------------------------------
Advertising & Marketing
------------------------------------------------------------------------------------------
Professional Fees
------------------------------------------------------------------------------------------
Other Expenses
------------------------------------------------------------------------------------------
Ground Rent
------------------------------------------------------------------------------------------
Total Operating Expenses $0.00 $0.00 $0.00 $0.00 $0.00 % %
------------------------------------------------------------------------------------------
Operating Expense Ratio
------------------------------------------------------------------------------------------
Net Operating Income $0.00 $0.00 $0.00 $0.00 $0.00
------------------------------------------------------------------------------------------
Leasing Commissions
------------------------------------------------------------------------------------------
Tenant Improvements
------------------------------------------------------------------------------------------
Replacement Reserve
------------------------------------------------------------------------------------------
Total Capital Items $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
N.O.I. After Capital Items $0.00 $0.00 $0.00 $0.00 $0.00
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Debt Service (per Servicer) $0.00 $0.00 $0.00 $0.00 $0.00
------------------------------------------------------------------------------------------
Cash Flow after debt service $0.00 $0.00 $0.00 $0.00 $0.00
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
(1) DSCR: (NOI/Debt Service)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
DSCR: (after reserves\Cap exp.)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Source of Financial Data:
------------------------------------------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
</TABLE>
Notes and Assumptions:
================================================================================
The years shown above will roll always showing a three year history. 1996 is the
current year financials; 1995 is the prior year financials.
This report may vary depending on the property type and because of the way
information may vary in each borrowers statement.
Rental Income needs to be broken down, differently whenever possible for each
property type as follows: Retail: 1) Base Rent 2) Percentage rents on cashflow
Hotel: 1) Room Revenue 2) Food/Beverage Nursing Home: 1) Private 2) Medicaid
3) Medicare
Income: Comment
Expense: Comment
Capital Items: Comment
(1) Used in the Comparative Financial Status Report
<PAGE>
EXHIBIT V
FORM OF LOAN PAYOFF NOTIFICATION REPORT
<PAGE>
LB Commercial Mortgage Trust 1998-C4
LOAN PAYMENT NOTIFICATION REPORT
as of _______________
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S58 P7 P8 P10 P11 P54
- ---------------------------------------------------------------------------------------------------------------------
Paid
Short Name (When Schedule Loan Thru Current Maturity
Prospectus ID Appropriate) Property Type State Balance Date Interest Rate Date LTM DSCR
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
Scheduled Payments
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
Unscheduled Payments
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
Total: $
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT W
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
OF THE DEPOSITOR
<PAGE>
Exhibit W-1
(Sub Debt)
- --------------------------------------------------------------------------------
Control No. Property Name Current Balance
- --------------------------------------------------------------------------------
7 Montgomery Mall 47,643,694.00
8 Mansards Apartment Community 45,871,866.16
17 MacArthur Properties2 17,225,888.69
116 Bronxville West
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Exhibit W-2
(A&E)
- --------------------------------------------------------------------------------
Control No. Property Name Current Balance
- --------------------------------------------------------------------------------
105a Bell Atlantic of Virginia 1,377,493.99
105b Bell Atlantic of Virginia 1,377,493.98
105c Bell Atlantic of Virginia 1,377,493.98
62 Kash and Karry - Tampa 5,997,685.15
71 Kash and Karry - Hudson 5,997,347.38
88 Kmart Store No. 4219 - Ashwoubenon, WI 4,985,461.00
125 Kmart - LaCrosse 3,650,000.00
131 Eckerd Drug Store 3,407,705.57
142 Kmart 3,199,473.10
268 IHOP 1,375,000.00
217 Eckerd - Greensboro 2,045,996.14
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Exhibit W-3
(Ground Lease)
- --------------------------------------------------------------------------------
Control No. Property Name Current Balance
- --------------------------------------------------------------------------------
5 Bayside 62,936,317.00
9 Best Western President Hotel 30,818,757.79
56 Cineplex Multiplex 6,585,685.75
68 Brewery District Office 5,692,246.32
103 Days Inn - San Diego 4,200,000.00
132 Sleep Inn 3,400,000.00
163 Kings Bay Plaza 2,830,000.00
216 Post Office Annex Building 2,048,756.81
237 King Kullen Shopping Center 1,689,305.08
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT W-4
(Exceptions and Conditions to Ground Lease Representations)
EXHIBIT W-4-1:
(Exceptions to Recordation)
[None.]
EXHIBIT W-4-2:
(Further transfers require consent)
The Mortgage Loans secured by:
Sleep Inn (Control No. 132)
Kings Bay Plaza (Control No. 163)
King Cullen (Control No. 237)
Post Office Annex Building (Control No. 216)
EXHIBIT W-4-3:
(Application of Condemnation/Insurance)
With respect to the Mortgage Loan secured by Cineplex Multiplex (Control
No. 56), the Ground Lease is silent as to the application of insurance
proceeds.
EXHIBIT W-4-4:
(New Leases)
The Mortgage Loans secured by:
Post Office Annex Building (Control No. 216)
Sleep Inn (Control No. 132)
In addition, in certain other cases, the Ground Lease or estoppel
certificate requires the execution of a new lease upon any termination,
but does not make specific reference to a termination occurring by reason
of the lessee's bankruptcy.
<PAGE>
Exhibit W-5
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
(xlix)(A) payments (xlix)(B) no (xlix)(C) no non-
monetary L obligs monetary L obligs
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Food Lion - Tampa, FL (a)
- -------------------------------------------------------------------------------------------------------------------------
Food Lion - Hudson, FL (a)
- -------------------------------------------------------------------------------------------------------------------------
Bell Atl. of Virginia
- -------------------------------------------------------------------------------------------------------------------------
Walgreens - Fort Worth, TX (CB) (b) (d)
- -------------------------------------------------------------------------------------------------------------------------
Walgreens - Fort Worth, TX (LV) (b) (d)
- -------------------------------------------------------------------------------------------------------------------------
Staples - Galesburg, IL (a) (b)(c) (d)
- -------------------------------------------------------------------------------------------------------------------------
Eckerd - Chattanooga, TN (b)(c) (d)
- -------------------------------------------------------------------------------------------------------------------------
CVS - Stanley, NC (b)(c) (d)
- -------------------------------------------------------------------------------------------------------------------------
CVS - Denver, NC (b)(c) (d)
- -------------------------------------------------------------------------------------------------------------------------
CVS - Sunset Beach, NC (b) (d)
- -------------------------------------------------------------------------------------------------------------------------
Southland - Palm Bay, FL (a) (b) (c)
- -------------------------------------------------------------------------------------------------------------------------
Rite Aid - Richmond, MI (a) (b)
- -------------------------------------------------------------------------------------------------------------------------
Rite Aid - West Haven, CT (a) (b)(c) (d)
- -------------------------------------------------------------------------------------------------------------------------
Rite Aid - Walkill, NY (b)(j) (d)
- -------------------------------------------------------------------------------------------------------------------------
Eckerd - Greensboro, NC (c) (d)
- -------------------------------------------------------------------------------------------------------------------------
Eckerd - San Antonio, TX (a) (b)(c) (d)
- -------------------------------------------------------------------------------------------------------------------------
CVS - Kings Mountain, NC (b) (d)
- -------------------------------------------------------------------------------------------------------------------------
CVS - Ballentine, SC (b)(c) (d)
- -------------------------------------------------------------------------------------------------------------------------
Garden Ridge - Stockbridge, GA (a)
- -------------------------------------------------------------------------------------------------------------------------
Walgreens - Portage, IN (a) (b) (d)
- -------------------------------------------------------------------------------------------------------------------------
CVS - Asheboro, NC (b)(c) (d)
- -------------------------------------------------------------------------------------------------------------------------
KMart - Lacrosse, WI (h)
- -------------------------------------------------------------------------------------------------------------------------
KMart - Greenbay, WI
- -------------------------------------------------------------------------------------------------------------------------
KMart - Joliet, IL (h)
- -------------------------------------------------------------------------------------------------------------------------
Revco - Savannah, GA (a) (c) (d)
- -------------------------------------------------------------------------------------------------------------------------
IHOP - Newbern, NC
- -------------------------------------------------------------------------------------------------------------------------
EXCEPTION DETAIL (a) balloon (b) L has obligs. (d) L has exclusivity
- -------------------------------------------------------------------------------------------------------------------------
(h) shortfall in rent but funded reserves limitations
- -------------------------------------------------------------------------------------------------------------------------
during 1st 60 months taken
- -------------------------------------------------------------------------------------------------------------------------
covered by funded reserve (c) L has one yr. latent
- -------------------------------------------------------------------------------------------------------------------------
defects oblig.
- -------------------------------------------------------------------------------------------------------------------------
(j) L has three yr. latent
- -------------------------------------------------------------------------------------------------------------------------
defects oblig.
- -------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
(xlix)(D) L reps (xlix)(E) term (xlix)(F) T remains (xlix)(G) sep tax lot
with offsets rights oblig on assign
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
Food Lion - Tampa, FL
- -------------------------------------------------------------------------------------------------------------------------
Food Lion - Hudson, FL
- -------------------------------------------------------------------------------------------------------------------------
Bell Atl. of Virginia
- -------------------------------------------------------------------------------------------------------------------------
Walgreens - Fort Worth, TX (CB) (e)(f)
- -------------------------------------------------------------------------------------------------------------------------
Walgreens - Fort Worth, TX (LV) (e)(f)
- -------------------------------------------------------------------------------------------------------------------------
Staples - Galesburg, IL (e)(f)
- -------------------------------------------------------------------------------------------------------------------------
Eckerd - Chattanooga, TN (e)(f)
- -------------------------------------------------------------------------------------------------------------------------
CVS - Stanley, NC (e)(f)
- -------------------------------------------------------------------------------------------------------------------------
CVS - Denver, NC (e)(f)
- -------------------------------------------------------------------------------------------------------------------------
CVS - Sunset Beach, NC (e)(f)
- -------------------------------------------------------------------------------------------------------------------------
Southland - Palm Bay, FL (e)
- -------------------------------------------------------------------------------------------------------------------------
Rite Aid - Richmond, MI (e)(f)
- -------------------------------------------------------------------------------------------------------------------------
Rite Aid - West Haven, CT (e)
- -------------------------------------------------------------------------------------------------------------------------
Rite Aid - Walkill, NY
- -------------------------------------------------------------------------------------------------------------------------
Eckerd - Greensboro, NC (e)
- -------------------------------------------------------------------------------------------------------------------------
Eckerd - San Antonio, TX (e)
- -------------------------------------------------------------------------------------------------------------------------
CVS - Kings Mountain, NC (e)(f)
- -------------------------------------------------------------------------------------------------------------------------
CVS - Ballentine, SC (e)(f)
- -------------------------------------------------------------------------------------------------------------------------
Garden Ridge - Stockbridge, GA
- -------------------------------------------------------------------------------------------------------------------------
Walgreens - Portage, IN (e)(f)
- -------------------------------------------------------------------------------------------------------------------------
CVS - Asheboro, NC (e)(f)
- -------------------------------------------------------------------------------------------------------------------------
KMart - Lacrosse, WI (e)
- -------------------------------------------------------------------------------------------------------------------------
KMart - Greenbay, WI (e)
- -------------------------------------------------------------------------------------------------------------------------
KMart - Joliet, IL (c)
- -------------------------------------------------------------------------------------------------------------------------
Revco - Savannah, GA (e)
- -------------------------------------------------------------------------------------------------------------------------
IHOP - Newbern, NC (f)
- -------------------------------------------------------------------------------------------------------------------------
EXCEPTION DETAIL (e) L reps to title
- -------------------------------------------------------------------------------------------------------------------------
(f) L reps as to delivery
- -------------------------------------------------------------------------------------------------------------------------
free of hazardous
- -------------------------------------------------------------------------------------------------------------------------
materials
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit W-5
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
(xlix)(H) T indemnif (xlix)(I) T indemnif for (xlix)(J) guaranties no (xlix)(K) policies
for claims hazardous conditions
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------------
Food Lion - Tampa, FL (i)
- -------------------------------------------------------------------------------------------------------------------------------
Food Lion - Hudson, FL (i)
- -------------------------------------------------------------------------------------------------------------------------------
Bell Atl. of Virginia
- -------------------------------------------------------------------------------------------------------------------------------
Walgreens - Fort Worth, TX (CB)
- -------------------------------------------------------------------------------------------------------------------------------
Walgreens - Fort Worth, TX (LV)
- -------------------------------------------------------------------------------------------------------------------------------
Staples - Galesburg, IL
- -------------------------------------------------------------------------------------------------------------------------------
Eckerd - Chattanooga, TN x (g)
- -------------------------------------------------------------------------------------------------------------------------------
CVS - Stanley, NC
- -------------------------------------------------------------------------------------------------------------------------------
CVS - Denver, NC
- -------------------------------------------------------------------------------------------------------------------------------
CVS - Sunset Beach, NC
- -------------------------------------------------------------------------------------------------------------------------------
Southland - Palm Bay, FL x x
- -------------------------------------------------------------------------------------------------------------------------------
Rite Aid - Richmond, MI x
- -------------------------------------------------------------------------------------------------------------------------------
Rite Aid - West Haven, CT x
- -------------------------------------------------------------------------------------------------------------------------------
Rite Aid - Walkill, NY x
- -------------------------------------------------------------------------------------------------------------------------------
Eckerd - Greensboro, NC
- -------------------------------------------------------------------------------------------------------------------------------
Eckerd - San Antonio, TX
- -------------------------------------------------------------------------------------------------------------------------------
CVS - Kings Mountain, NC x x
- -------------------------------------------------------------------------------------------------------------------------------
CVS - Ballentine, SC
- -------------------------------------------------------------------------------------------------------------------------------
Garden Ridge - Stockbridge, GA
- -------------------------------------------------------------------------------------------------------------------------------
Walgreens - Portage, IN (i)
- -------------------------------------------------------------------------------------------------------------------------------
CVS - Asheboro, NC
- -------------------------------------------------------------------------------------------------------------------------------
KMart - Lacrosse, WI
- -------------------------------------------------------------------------------------------------------------------------------
KMart - Greenbay, WI
- -------------------------------------------------------------------------------------------------------------------------------
KMart - Joliet, IL
- -------------------------------------------------------------------------------------------------------------------------------
Revco - Savannah, GA x x
- -------------------------------------------------------------------------------------------------------------------------------
IHOP - Newbern, NC x
- -------------------------------------------------------------------------------------------------------------------------------
(g) general T indemn.
- -------------------------------------------------------------------------------------------------------------------------------
for compliance
- -------------------------------------------------------------------------------------------------------------------------------
with laws
- -------------------------------------------------------------------------------------------------------------------------------
(i) general T indemn.
- -------------------------------------------------------------------------------------------------------------------------------
no specific env. indemn.
- -------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -------------------------------------------------------------
(xlix)(L) guarantors
- -------------------------------------------------------------
<S> <C>
- -------------------------------------------------------------
Food Lion - Tampa, FL Food Lion, Inc.
- -------------------------------------------------------------
Food Lion - Hudson, FL Food Lion, Inc.
- -------------------------------------------------------------
Bell Atl. of Virginia
- -------------------------------------------------------------
Walgreens - Fort Worth, TX (CB)
- -------------------------------------------------------------
Walgreens - Fort Worth, TX (LV)
- -------------------------------------------------------------
Staples - Galesburg, IL
- -------------------------------------------------------------
Eckerd - Chattanooga, TN
- -------------------------------------------------------------
CVS - Stanley, NC CVS Corporation
- -------------------------------------------------------------
CVS - Denver, NC CVS Corporation
- -------------------------------------------------------------
CVS - Sunset Beach, NC CVS Corporation
- -------------------------------------------------------------
Southland - Palm Bay, FL
- -------------------------------------------------------------
Rite Aid - Richmond, MI Rite Aid Corporation
- -------------------------------------------------------------
Rite Aid - West Haven, CT Rite Aid Corporation
- -------------------------------------------------------------
Rite Aid - Walkill, NY Rite Aid Corporation
- -------------------------------------------------------------
Eckerd - Greensboro, NC
- -------------------------------------------------------------
Eckerd - San Antonio, TX
- -------------------------------------------------------------
CVS - Kings Mountain, NC CVS Corporation
- -------------------------------------------------------------
CVS - Ballentine, SC CVS Corporation
- -------------------------------------------------------------
Garden Ridge - Stockbridge, GA Garden Ridge Corporation
- -------------------------------------------------------------
Walgreens - Portage, IN
- -------------------------------------------------------------
CVS - Asheboro, NC CVS Corporation
- -------------------------------------------------------------
KMart - Lacrosse, WI
- -------------------------------------------------------------
KMart - Greenbay, WI
- -------------------------------------------------------------
KMart - Joliet, IL
- -------------------------------------------------------------
Revco - Savannah, GA Revco D.S., Inc.
- -------------------------------------------------------------
IHOP - Newbern, NC
- -------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT X
ORGANIZATIONAL DOCUMENTS OF THE DEPOSITOR
<PAGE>
State of Delaware
Office of the Secretary of State PAGE 1
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"STRUCTURED ASSET SECURITIES CORPORATION", FILED IN THIS OFFICE ON THE
TWENTY-THIRD DAY OF OCTOBER, A.D. 1998, AT 9 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL OF THE STATE OF DELAWARE]
/s/ Edward J. Freel
[SEAL OF THE SECRETARY'S OFFICE] -----------------------------------
Edward J. Freel, Secretary of State
2113943 8100 AUTHENTICATION: 9370126
981409999 DATE: 10-23-98
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 10/23/1998
981409999 - 2113943
RESTATED
CERTIFICATE OF INCORPORATION
OF STRUCTURED ASSET SECURITIES CORPORATION
-----------------------------------------------------
Pursuant to Sections 245 and 242 of the General
Corporation Law of the State of Delaware
-----------------------------------------------------
STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation organized
on January 2, 1987 under the name E.F. Hutton Mortgage Capital Inc., does hereby
amend and restate its Restated Certificate of Incorporation, as heretofore
amended, to read in its entirety as set forth below:
ARTICLE I
NAME
The name of the corporation is Structured Asset Securities Corporation
(the "Corporation").
ARTICLE II
REGISTERED OFFICE REGISTERED AGENT
The street address of the registered office of the Corporation is 1013
Centre Road, City of Wilmington 19805, County of New Castle, and the name of its
registered agent at that address is Corporation Service Company.
<PAGE>
ARTICLE III
PURPOSES
The purpose for which the Corporation is organized is:
(a) To acquire, own, hold, transfer, assign, pledge and otherwise deal
with the following (the "Mortgage Collateral"): (i) (A) "fully modified
pass-through" mortgage-backed certificates guaranteed as to timely payment of
principal and interest by the Government National Mortgage Association; (B)
Guaranteed Mortgage Pass-Through Certificates issued and guaranteed as to timely
payment of principal and interest by the Federal National Mortgage Association;
(C) Mortgage Participation Certificates issued and guaranteed as to timely
payment of interest and principal, in most cases, by the Federal Home Loan
Mortgage Corporation (collectively, the "Agency Certificates"); (D) securities
representing interests in Agency Certificates; or (E) mortgage pass-through
certificates or mortgage-collateralized bonds issued by any other entity with
respect to or secured by a pool of mortgage loans (collectively, "Certificates")
which are either owned by the Corporation or granted by a Borrower (as defined
below) to secure payment of Mortgage Backed Notes (as defined below); (ii)
mortgage notes and related mortgages, or interests therein (including, but not
limited to, participation certificates with respect to such mortgage notes or
related mortgages), or guaranteed notes, provided the guaranty is secured by a
mortgage on real property (collectively, the "Pledged Mortgages"), which are
either owned by the Corporation or granted by a borrower to secure payment of a
Mortgage Backed Note; (iii) mortgage backed notes evidencing loans made by the
Corporation to commercial banks, saving and loan associations and savings banks,
the deposits of which are insured by the Federal Deposit Insurance Corporation
("FDIC"), affiliates of FDIC insured institutions, and other entities which are
not FDIC insured institutions but are engaged directly, or through the owners of
such entities or their affiliates, in mortgage financing, origination or funding
activities (e.g., mortgage bankers, home builders and state agencies), or to any
other entity (collectively, the "Borrowers"), which loans are secured by Pledged
Mortgages or Certificates ("Mortgage Backed Notes"); and (iv) real property and
any improvements thereon, including commercial, multifamily and residential
properties ("Properties");
(b) To authorize, issue, sell and deliver bonds or other evidences of
indebtedness ("Bonds") that are secured by a pledge or other assignment of
Mortgage Collateral, reserve funds, guaranteed investment contracts, letters of
credit, insurance contracts, surety bonds or any other credit enhancement device
(collectively, the "Collateral"), and are rated in one of the four highest
categories available by any nationally recognized statistical rating agency;
(c) To serve as depositor of one or more trusts that may authorize, issue,
sell and deliver Bonds or certificates of interest that are secured by a pledge
or other assignment of, or represents an interest in, the Collateral and are
rated in one of the four highest categories available by any nationally
recognized rating agency; provided that one or more classes of an issue of such
securities by such trust may be subordinate to other securities of such issue
and not so rated; and
2
<PAGE>
(d) To do all such things as are reasonable or necessary to enable the
Corporation to carry out any of the above, including entering into loan
agreements, insurance agreements, servicing agreements, reimbursement
agreements, issuing debt (subject to the provisions of this Article III, Article
VIII and Article X hereof) and selling residual interests in Mortgage Collateral
or selling certificates of participation in any trust for which the Corporation
serves as depositor.
ARTICLE IV
AUTHORIZED STOCK
The Corporation may issue 1,000 shares, divided into 1,000 shares of
Common Stock with a par value of $1.00 per share. No additional Common Stock
and no classes of Preferred Stock may be issued.
ARTICLE V
BOARD OF DIRECTORS
The Board of Directors shall consist of not less than one nor more than
fifteen members, the exact number of which shall be fixed from time to time by
the Board of Directors. The number of Directors may be changed as provided in
the Bylaws. The Directors need not be elected by written ballot unless required
by the Bylaws of the Corporation.
At all times, at least one of the directors shall be an Independent
Director. For the purposes of this certificate, "Independent Director" shall
mean a director of the Corporation who shall at no time be or have been a
director or officer of, or be employed by, any direct or ultimate parent or
Affiliate of any direct or ultimate parent of the Corporation, and who shall at
no time hold any beneficial interest in the Corporation provided, however, that
such Independent Director may serve in similar capacities for other "special
purpose corporations" formed by any direct or ultimate parent of the Corporation
or any Affiliate; and "Affiliate" shall mean, with respect to any entity, any
other entity other than the Corporation, controlling or controlled by or under
common control with such entity, and "control" means the power to direct the
management and policies of such entity, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise. Each Independent
Director, in voting on matters subject to the approval of the Board of Directors
of the Corporation, shall at all times take into account the interests of
creditors of the Corporation, as well as the interests of the Corporation.
ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized and empowered to make, alter or
repeal the Bylaws of the Corporation, subject to the reserved power of the
stockholders to adopt; amend or repeal Bylaws
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which may include the power to restrict in any manner power granted to the Board
of Directors by this Article VI.
ARTICLE VII
LIMITATION ON DIRECTOR LIABILITY
No Director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director; provided, however, that this limitation of liability of a
Director shall not apply with respect to (i) any breach of the Director's duty
of loyalty to the Corporation or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) any liability arising under Section 174 of the General Corporation
Law of the State of Delaware and (iv) any transaction from which the Director
derives an improper personal benefit.
ARTICLE VIII
LOAN AGREEMENTS AND INDENTURES
The Corporation shall not do or perform any act expressly prohibited
below:
(i) The Corporation shall not incur, assume or guarantee any
indebtedness except for such indebtedness that (a) is described in
paragraph (b) or (c) of Article III hereof; (b) is a capital stock
liability, (c) is an account payable and expense accrual incurred in the
ordinary course of business, including fees and expenses payable pursuant
to a collateral custody, pledge and security agreement entered into by any
trustee or lender (collectively, the "Lenders") under any indenture, loan
agreement or similar agreement to which the Corporation is party
(collectively, the "Loan Agreements"); or (d) is short-term borrowing from
affiliates for the purpose of paying organizational expenses of the
Corporation and initial expenses of filing any registration statement with
the Securities and Exchange Commission.
(ii) The Corporation shall not engage in any business or activity
other than in connection with or relating to the issuance of indebtedness
evidenced by the Loan Agreements and such activities as are reasonable and
necessary to enable the Corporation to carry out its purposes as set forth
in Article III hereof.
(iii) The Corporation shall not consolidate (other than for federal
income tax purposes) or merge with or into any other entity or convey or
transfer its properties and assets, substantially or in the entirety, to
any entity (other than as described in paragraphs (a), (b), (c) or (d) of
Article III hereof) unless (a) the entity (if other than the Corporation)
formed or surviving such consolidation or merger, or that acquires by
conveyance or transfer the properties and assets of the Corporation
substantially or in the entirety, shall be organized and existing under
the laws of the United States of America or any state
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thereof or the District of Columbia, and shall expressly assume, by a
supplement to each Loan Agreement, executed and delivered to each Lender
under each Loan Agreement, in form satisfactory to each Lender under each
Loan Agreement, the due and punctual payment of the principal of and
interest on all indebtedness then outstanding under each Loan Agreement
and the performance of every covenant of each Loan Agreement on the part
of the Corporation to be performed or observed and shall be subject to the
restrictions set forth in this Certificate, (b) immediately after giving
effect to such transaction, no default or event of default under any Loan
Agreement shall have occurred and be continuing and (c) the Corporation
shall have delivered to each Lender under each Loan Agreement an officers'
certificate and an opinion of counsel, each stating that such
consolidation, merger, conveyance or transfer and such supplement comply
with the Loan Agreement and that all conditions precedent provided for in
each such Loan Agreement relating to such transaction have been complied
with.
Upon any consolidation or merger, or any conveyance or transfer of
the properties and assets of the Corporation substantially as provided
above, the entity formed by or surviving such consolidation or merger (if
other than the Corporation) or the entity to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Corporation under each Loan
Agreement with the same effect as if such entity had been named as the
"Issuer" or "Borrower" therein. In the event of any conveyance or
transfer, the entity named as the "Issuer" or "Borrower" in each such Loan
Agreement or any successor that shall theretofore have become such in the
manner prescribed in each such Loan Agreement may be dissolved, wound-up
and liquidated at any time thereafter, and such entity thereafter shall be
released from its liabilities as obligor and maker on all of the
indebtedness, and from its obligations under the Loan Agreements.
(iv) The Corporation shall not dissolve or liquidate, in whole or in
part.
(v) The Corporation shall not amend, alter, change or repeal any
provision contained in this Article VIII, Article IX or Article X without
(a) the affirmative vote in favor thereof of eighty percent (80%) of the
then outstanding stock and (b) either (i) the prior written consent of
each trustee under any indenture or other agreement pursuant to which
publicly offered or privately placed debt or other securities of the
Corporation or of any subsidiary thereof or business trust formed thereby
has been issued and remains outstanding or (ii) if such securities are
rated by a nationally recognized statistical rating agency, the prior
delivery by each such rating agency of a letter to the effect that such
amendment, alteration, change or repeal will not result in the
qualification, reduction, or withdrawal of the applicable ratings of such
securities.
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ARTICLE IX
COVENANTS REGARDING OPERATIONS
The Corporation shall conduct its affairs in accordance with the following
provisions:
(i) The Corporation shall establish an office through which its
business will be conducted separately and apart from that of any person or
entity which is the owner of more than 50% of its outstanding stock,
currently Shearson Lehman Hutton Inc. (the "Parent") (although the Parent
may lease space to the Corporation).
(ii) The Corporation shall maintain separate corporate records and
books of account from those of the Parent. The books of the Corporation
may be kept (subject to any provision contained in the statutes) outside
the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the Bylaws of the
Corporation.
(iii) The Corporations funds shall not be commingled with those of
its Parent or any of its subsidiaries of affiliates other than the
Corporation.
(iv) The Corporation's Board of Directors shall hold appropriate
meetings to authorize all of its corporate actions.
(v) The Corporation shall conduct its business so as not to mislead
others as to the identity of the entity with which they are concerned.
(vi) The Corporation shall provide for its operating expenses and
liabilities from its own funds, which may include funds borrowed from
affiliates (other than its Parent) (although certain organizational
expenses of the Corporation may be paid by its Parent).
(vii) The Corporation shall, when appropriate, obtain proper
authorization from its Directors or stockholders for corporate action.
(viii) The Corporation shall act solely in its corporate name and
through its duly authorized officers or agents in the conduct of its
business.
(ix) The Corporation shall not hold itself out as being liable for
the debts of any other entity (except as may be implicit in a
subordination agreement executed in connection with the issuance of Bonds)
and shall not permit the Parent to hold itself out as liable for the debts
of the Corporation.
(x) Each of the Corporation and the Parent shall maintain an
arm's-length relationship with the other.
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(xi) The Corporation shall not commence any case, proceeding or
other action relating to bankruptcy, insolvency, reorganization or relief
of debtors, or seek to have an order for relief entered with respect to
it, or seek to adjudicate it a bankrupt or insolvent, or seek
reorganization, arrangement, winding up, liquidation, dissolution,
composition or other relief with respect to it or its debts or make a
general assignment for the benefit of creditors without the unanimous vote
of the entire Board of Directors, including the affirmative vote of each
Independent Director.
ARTICLE X
AMENDMENTS
If the indebtedness under a Loan Agreement is given a rating by a
nationally recognized statistical rating agency, this Certificate of
Incorporation may not be amended prior to notice being given by registered or
certified mail to such rating agency. In addition, no additional indebtedness
may be incurred by the Corporation, other than indebtedness described in
paragraph (b), (c) or (d) of Article III hereof:
ARTICLE XI
TRANSFER OF ASSETS
The Corporation may not transfer all or substantially all of its assets to
a transferee unless such transferee is subject to the restrictions contained in
this Certificate. A pledge of its assets in connection with the issuance of debt
shall not be considered such a transfer. Additionally, the Corporation may
transfer any residual interest it may have in assets so pledged to any third
person and such transfer shall not constitute a transfer subject to this
Article.
ARTICLE XII
SPECIAL COVENANTS FROM LENDERS
The Corporation shall receive a covenant from all creditors, other than
Lenders, prior to incurring debt, that no petition in bankruptcy shall be filed
against the Corporation until at least 90 days have expired since payment in
full to the lenders.
The foregoing Restated Certificate was duly adopted in accordance with the
provisions of Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware.
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IN WITNESS WHEREOF, Structured Asset Securities Corporation has caused
this Restated Certificate of Incorporation to be duly executed in its corporate
name this 23rd day of October, 1998.
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Jennifer Marre
----------------------
Name: JENNIFER MARRE
Title: SECRETARY
ATTEST:
By: /s/ Felicity Fridman
----------------------
Name: Felicity Fridman
Title: Assistant Secretary
<PAGE>
WRITTEN CONSENT TO ACTION BY THE SOLE STOCKHOLDER
OF
STRUCTURED ASSET SECURITIES CORPORATION
(IN LIEU OF MEETING)
The undersigned being the sole stockholder of Structured Asset Securities
Corporation, a Delaware corporation, and being the sole person entitled to
notice of any meeting of stockholders, does hereby take the following action and
adopt the following resolutions by written consent without a meeting pursuant to
Section 228 of the General Corporation Law of the State of Delaware:
RESOLVED, that the form of the Restated Certificate of Incorporation
of Structured Asset Securities Corporation attached hereto as
Exhibit A is hereby approved; and
FURTHER RESOLVED, that the officers of the Corporation are hereby
authorized and directed to take whatever action necessary to file
such Restated Certificate of Incorporation with the Secretary of
State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the sole stockholder of
Structured Asset Securities Corporation, has caused this Written Consent to
Action by the Sole Stockholder to be executed this 23rd day of October, 1998.
LEHMAN COMMERCIAL PAPER INC.
By: /s/ Jennifer Marre
-----------------------
Name: JENNIFER MARRE
Title: SECRETARY
<PAGE>
BYLAWS
OF
STRUCTURED ASSET SECURITIES CORPORATION
ARTICLE I
OFFICES
Section 1. Structured Asset Securities Corporation (the
"Corporation") shall maintain a registered office in the State of Delaware. The
Corporation may also have other offices at such places, either within or without
the State of Delaware, as the Board of Directors may from time to time designate
or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1. Annual Meetings. The annual meeting of the stockholders
for the election of directors and for the transaction of such other business as
may come before the meeting shall be held on such date and at such time and
place within or without the State of Delaware as may be designated by the Board
of Directors.
Section 2.2. Special Meetings. Special meetings of the stockholders
for any purpose or purposes, unless otherwise prescribed by statute, may be
called at any time by the President or by order of the Board of Directors and
shall be called by the President or Secretary upon the request in writing of a
stockholder or stockholders holding of record at least one-fourth of the
outstanding shares of stock of the Corporation entitled to vote at such meeting.
Any such written request of a stockholder or stockholders shall state a proper
purpose or purposes of the meeting and shall be delivered to the President or
Secretary.
Section 2.3. Place of Meeting. Each meeting of stockholders of the
Corporation, whether annual or special, shall be held on such date and at such
time and place within or without the State of Delaware as shall be fixed by the
Board of Directors and specified in the notice or waiver of notice of said
meeting.
Section 2.4. Notice of Meetings. Except as otherwise provided by
law, notice of each meeting of the stockholders shall be given to each
stockholder of record entitled to vote at such meeting, whether annual or
special, not less than 10 nor more than 60 days before the day on which the
meeting is to be held, by delivering a typewritten or printed notice thereof to
him or her personally, or by mailing such notice in a postage prepaid envelope
addressed to him or her at his or her post office address furnished by him or
her to the Secretary of the Corporation for such purpose, or, if he or she shall
not have furnished to the Secretary of the Corporation his or her address for
such purpose, then at his or her post office address last known to the Secretary
of the Corporation. Each
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such notice shall state the purpose or purposes for which the meeting is called,
and the date and time when, and the place where such meeting is to be held.
Except where expressly required by law, no publication of any notice of a
meeting of stockholders shall be required. Notice of any meeting of stockholders
shall not be required to be given to any stockholder who shall attend such
meeting in person or by proxy. Notice of any adjourned meeting of the
stockholders shall not be required to be given, except where expressly required
by law.
Section 2.5. Quorum. At each meeting of the stockholders, except
where other provision is made by law, the presence, in person or by proxy, of
the holders of record of a majority of the issued and outstanding stock of the
Corporation entitled to vote at such meeting shall constitute a quorum for the
transaction of business. In the absence of a quorum, a majority in interest of
the stockholders of the Corporation present in person or by proxy and entitled
to vote or, in the absence of any stockholder entitled to vote, any officer
entitled to preside at, or act as Secretary of, such meeting, shall have the
power to adjourn the meeting from time to time, until stockholders holding the
requisite amount of stock shall be present or represented. At any such adjourned
meeting at which a quorum shall be present, any business may be transacted which
might have been transacted at the meeting as originally called.
Section 2.6. Voting. At each meeting of the stockholders, every
stockholder of record of the Corporation entitled to vote at such meeting shall
be entitled to one vote in person or by proxy for each share of stock of the
Corporation registered in his or her name on the books of the Corporation (a) on
the date fixed pursuant to Section 7.3 of the Article VII of these Bylaws as the
record date for the determination of stockholders entitled to vote at such
meeting; or (b) if no such record date shall have been fixed, then as of the
close of business on the day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held. Any vote on stock of the Corporation may be given
by the stockholder entitled thereto in person or by proxy appointed by an
instrument in writing, including without limitation a telegraph or a cable,
subscribed by such stockholder or by his or her attorney thereunto authorized
and delivered to the Secretary of the meeting; provided, however, that no proxy
shall be voted on after three years from its date unless said proxy provides for
a longer period. At all meetings of the stockholders, all matters (except where
other provision is made by law or by the Certificate of Incorporation of the
Corporation) shall be decided by a majority of the votes cast by the holders of
the stock present in person or by proxy and entitled to vote thereat, a quorum
being present.
Section 2.7. List of Stockholders. It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge of its stock
ledger, either directly or through a transfer agent or transfer clerk appointed
by the Board of Directors, to prepare and make, at least 10 days before every
meeting of the stockholders for the election of directors of the Corporation, a
complete list of the stockholders entitled to vote thereat, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder during ordinary business hours, for a period
of at least 10 days prior to the election, either at a place within the city,
town or village
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where the election is to be held and which place shall be specified in the
notice of meeting, or, if not so specified, at the place where said meeting is
to be held, and the list shall be produced and kept at the time and place of
said meeting during the whole time thereof and subject to the inspection of any
stockholder who shall be present thereat. Upon the willful neglect or refusal of
the directors to produce such list at any election, they shall be ineligible for
any office at such election. The original or duplicate stock ledger shall be the
only evidence as to who are the stockholders entitled to examine such list or
the books of the Corporation or to vote in person or by proxy at such election.
Section 2.8. Judges of Election. The Board of Directors may appoint
judges of election to serve at any election of directors and at balloting on any
other matter that may properly come before a meeting of stockholders. If no such
appointment shall be made, or if any of the judges so appointed shall fail to
attend, or refuse or be unable to serve, then such appointment may be made by
the presiding officers at the meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. General Powers. The property, affairs and business of
the Corporation shall be managed by or under the direction of the Board of
Directors.
Section 3.2. Number, Election, Qualifications and Term of Office.
The number of directors shall be as fixed from time to time by resolution of the
Board of Directors or stockholders (and such resolutions of either the Board of
Directors or stockholders being subject to the later resolution of either of
them). Until changed as provided herein, the initial Board of Directors and all
subsequent boards of directors shall consist of that number of directors set
forth in the Certificate of Incorporation. Except as otherwise provided in the
Certificate of Incorporation or in these Bylaws, directors shall be elected by a
plurality of the votes of the stockholders entitled to vote at each meeting of
stockholders for the election of a director or directors. Directors need not be
stockholders. Each director shall hold office until his or her successor shall
have been duly elected and qualified, or until his or her death, or until he or
she shall resign, or until he or she shall have been removed in the manner
hereinafter provided.
Section 3.3. Resignation. Any directors of the Corporation may
resign at any time by giving written notice to the President or to the Secretary
of the Corporation. The resignation of any director shall take effect at the
time specified therein; and, unless otherwise specified therein the acceptance
of such resignation shall not be necessary to make it effective.
Section 3.4. Removal of Directors. Any director or the entire Board
of Directors may be removed, either with or without cause, at any time by the
holders of a majority of the shares then entitled to vote at an election of
directors, except in the case that the Certificate of Incorporation of the
Corporation provides for cumulative voting, then if less than the entire board
is to be removed, no director may be removed without cause if the votes cast
against his or her removal would be sufficient to elect him or her if
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then cumulatively voted at an election of the entire Board of Directors. Any
vacancy in the Board of Directors caused by any such removal may be filled by a
plurality of the votes of the stockholders at such meeting, or, if the
stockholders shall fail to fill such vacancy, by the Board of Directors.
Section 3.5. Vacancies. Any vacancy in the Board of Directors caused
by death, resignation, disqualification, removal, an increase in the number of
directors, or any other cause, may be filled by the affirmative vote of a
majority of the remaining directors (though less than a quorum), unless filled
by the stockholders pursuant to Section 3.4 hereof; and each director so chosen
shall hold office until his or her successor shall be duly elected and qualified
or until his or her earlier death, resignation of removal.
Section 3.6. Place of Meetings. Etc. Except as otherwise
specifically provided by law, the Board of Directors may hold its meetings, have
one or more offices and keep the books and records of the Corporation at such
place or places within or without the State of Delaware as the Board of
Directors may from time to time determine.
Section 3.7. First Meeting. Within thirty (30) days after each
annual election of directors, the Board of Directors shall meet for the purpose
of organization, the election of officers and the transaction of other business
at the place where regular meetings of the Board of Directors are held. Notice
of such meeting shall be given in the manner hereinafter provided for special
meetings of the Board of Directors or in a consent and waiver of notice thereof
signed by all the directors.
Section 3.8. Regular Meetings. Regular meetings of the Board of
Directors may be held at such places and at such times as the Board shall
determine. If any day fixed for a regular meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting which would
otherwise be held on that day shall be held at such place at the same hour and
on the next succeeding business day not a legal holiday. Notice of regular
meetings need not be given, provided that, whenever the time or place of regular
meetings shall be fixed or changed, notice of such action shall be mailed
promptly to each director who shall not have been present at the meeting at
which such action was taken, addressed to him or her at his or her residence or
usual place of business.
Section 3.9. Special Meetings; Notice. Special meetings of the Board
of Directors shall be held whenever called by the President or by one of the
directors. At least three calendar days before the day on which any special
meeting is to be held, notice of such meeting shall be sent to each director by
first class mail, addressed to him or her at his or her residence or usual place
of business, or shall be sent to him or her at such place by telegraph, cable or
wireless or shall be delivered personally or by telephone at least one day
before the day on which the meeting is to be held. Each such notice shall state
the time and place of the meeting but need not state the purposes thereof,
except as otherwise herein expressly provided. Notice of any meeting of the
Board of Directors need not be given to any director who shall be present at
such meeting or who shall, either before or after such meeting, waive notice of
such meeting in writing or by telegram, radio, cable or telephone; and any
meeting of the Board of Directors shall be a
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legal meeting without any notice thereof having been given if all of the
directors of the Corporation then in office shall be present thereat.
Section 3.10. Quorum and Manner of Acting. Except as otherwise
provided by statute or by these Bylaws, one-third of the total number of
directors shall be required to constitute a quorum for the transaction of
business at any meeting, and the act of a majority of the directors present at
any meeting at which a quorum shall be present shall be the act of the Board of
Directors. In the absence of a quorum, a majority of the directors present may
adjourn any meeting from time to time until a quorum be had. Notice of any
adjourned meeting need not be given, except as required by law.
Section 3.11. Remuneration. Directors shall receive such reasonable
compensation for their services, as such, whether in form of a salary or a fixed
fee for attendance at meetings, with expenses, if any, as the Board of Directors
may from time to time determine. Nothing herein contained shall be construed so
as to preclude any director from serving the Corporation in any other capacity
and receiving remuneration therefor.
Section 3.12. Action by Consent. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting if all members of the Board or of such
committee, as the case may be, consent thereto in writing and such writing or
writings are filed with the minutes of proceedings of the Board or committee.
Section 3.13. Telephonic Meetings. Unless otherwise restricted by
the Certificate of Incorporation, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
subsection shall constitute presence in person at such meeting.
ARTICLE IV
COMMITTEES
Section 4.1. Designation of Committees, Alternate Members and Term
of Office. The Board of Directors may, by resolution passed by a majority of the
whole Board, designate one or more committees, including an executive committee,
each committee to consist of one or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee, who, in the order specified by the Board, may replace any
absent or disqualified member at any meeting of the committee. In the absence or
disqualification of a member or members of a committee, and in the event there
are not sufficient alternate members present at such meeting, the member or
members thereof, including alternates, present at any meeting and not
disqualified from voting, whether or not he, she or they constitute a
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quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. The term
of office of the members of each committee shall be as fixed from time to time
by the Board, subject to these Bylaws; provided, however, that any committee
member who ceases to be a member of the Board shall ipso facto cease to be a
committee member. Each committee shall appoint a secretary, who may be the
Secretary of the Corporation or any Assistant Secretary thereof.
Section 4.2. Powers of Committees. Any committee designated by the
Board of Directors pursuant to Section 4.1 hereof, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending
these Bylaws of the Corporation; and, unless the resolution so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 4.3. Meetings, Notices and Records. Each committee may
provide for the holding of regular meetings, with or without notice, and may fix
the time and place at which such meetings shall be held. Special meetings of
each committee shall be held upon call by or at the direction of its chairman
or, if there be no chairman, by or at the direction of any two of is members, at
the time and place specified in the respective notices or waivers of notice
thereof. Notice of each special meeting of a committee shall be mailed to each
member of such committee, addressed to him or her at his or here residence or
usual place of business, at least one day before the day on which the meeting is
to be held, or shall be sent by telegram, radio or cable, addressed to him or
her at such place, or telephoned or delivered to him or her personally, not
later than the day before the day on which the meeting is to be held. Notice of
any meeting of a committee need not be given to any member thereof who shall
attend the meeting in person or who shall waive notice thereof by telegram,
radio, cable or other writing. Notice of any adjourned meeting need not be
given. Each committee shall keep a record of its proceedings.
Section 4.4. Quorum and Manner of Acting. At each meeting of any
committee the presence of one-third of its members then in office shall be
necessary and sufficient to constitute a quorum for the transaction of business,
and the act of a majority of the members present at any meeting at which a
quorum is present shall be the act of such committee; in the absence of a
quorum, a majority of the members present at the time and place of any meeting
may adjourn the meeting from time to time until a quorum shall be present.
Subject to the foregoing and other provisions of these Bylaws and except as
otherwise determined by the Board of Directors, each committee may make rules
for the conduct of its business. Any determination made in writing and signed by
all the members of such committee shall be as effective as if made by such
committee at a meeting.
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Section 4.5. Resignations. Any member of a committee may resign at
any time by giving written notice of such resignation to the Board of Directors,
the President or the Secretary of the Corporation. Unless otherwise specified in
such notice, such resignation shall take effect upon receipt thereof by the
Board or any such officer.
Section 4.6. Removal. Any member of any committee may be removed at
any time by the Board of Directors with or without cause.
Section 4.7. Vacancies. If any vacancy shall occur in any committee
by reason of death, resignation, disqualification, removal or otherwise, the
remaining members of such committee, though less than a quorum, shall continue
to act until such vacancy is filled by the Board of Directors.
Section 4.8. Compensation. Committee members shall receive such
reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any committee member from servicing the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE V
OFFICERS
Section 5.1. Number. The officers of the Corporation shall be a
President, one or more Executive Vice Presidents, one or more Vice Presidents, a
Secretary, a Treasurer and, if the Board shall so elect, such other officers and
agents as may be appointed by the Board of Directors pursuant to Section 5.3
hereof. Any two or more offices may be held by the same person.
Section 5.2. Election, Term of Office and Qualifications. The
officers shall be elected annually by the Board of Directors and, except in the
case of officers appointed in accordance with the provisions of Section 5.3
hereof, each shall hold office until the next annual election of officers or
until his or her successor shall have been duly elected and qualified, or until
his or her death, or until he or she shall resign, or until he or she shall have
been removed in the manner hereinafter provided.
Section 5.3. Other Officers. The Corporation may have such other
officers and agents as may be deemed necessary by the Board of Directors,
including without limitation one or more Assistant Secretaries and one or more
Assistant Treasurers. Such other officers and agents shall be appointed in such
manner, have such duties and hold their offices for such terms as may be
determined by the Board of Directors. The Board of Directors may delegate to any
officer or agent the power to appoint any such subordinate officers or agents
and to prescribe their respective terms of office, authorities and duties.
Section 5.4. Resignations. Any officer may resign at any time by
giving written notice of his or her resignation to the Board of Directors, to
the President or to the
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Secretary of the Corporation. Unless otherwise specified in such written notice,
any such resignation shall take effect at the time of receipt thereof by the
Board of Directors or any such officer.
Section 5.5. Removal. Any officer specifically designated in Section
5.1 hereof may be removed, either with or without cause, by a vote of majority
of the whole Board of Directors. Any officer or agent appointed in accordance
with the provisions of Section 5.3 hereof may be removed, either with or without
cause, by the Board of Directors at any meeting, by the vote of a majority of
the directors present at such meeting, or by any superior officer or agent upon
whom such power or removal shall have been conferred by the Board of Directors.
Section 5.6. Vacancies. A vacancy in any office by reason of death,
resignation, removal or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in these Bylaws for election or
appointment to such office.
Section 5.7. The President. The President shall be the chief
executive officer of the Corporation and, subject to control by the Board of
Directors, shall have general charge of the business, affairs and property of
the Corporation and control over its several officers. He or she shall preside
at all meetings of the stockholders and of the Board of Directors and of the
Executive Committee at which he or she shall be present. He or she shall see
that all orders and resolutions of the Board of Directors are carried into
effect. He or she may sign, with the Secretary or any other officer thereunto
duly authorized by the Board of Directors, certificates for shares of stock of
the Corporation, deeds, mortgages, bonds, contracts, agreements or other
instruments duly authorized by the Board of Directors except in cases where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent. From time to time he or she shall
report to the Board of Directors all matters within his or her knowledge which
the interests of the Corporation may require to be brought to their attention.
The President shall do and perform all such other duties and may exercise such
other powers as from time to time may be assigned to him or her by these Bylaws
or by the Board of Directors or by the Executive Committee or by the Executive
Committee. The officers of the Corporation shall be responsible to the President
for the proper and faithful discharge of their several duties and shall make
such reports to him or her as he or she may from time to time require.
Section 5.8. Executive Vice Presidents. In the event of the death,
absence, unavailability or disability of the President or at the request of the
President, the Executive Vice President or, in case there shall be more than one
Executive Vice President, the Executive Vice President designated by the
President (or in the absence of such designation, the Executive Vice President
designated by the Board of Directors) shall perform all the duties of the
President and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the President. Except where by law the signature of
the President is required, each of the Executive Vice Presidents shall possess
the same power as the President to sign all certificates, contracts, obligations
and other instruments of the Corporation. Any Executive Vice President shall
perform such other duties and may exercise such other powers as from time to
time may be assigned to him
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or her by these Bylaws or by the Board of Directors or by the Executive
Committee or by the President.
Section 5.9. The Vice Presidents. The Vice Presidents shall exercise
such powers as may be assigned to them from time to time by the Board of
Directors or by the Executive Committee or by the President.
Section 5.10. The Secretary and the Assistant Secretaries. The
Secretary shall:
(a) Keep the minutes of the meetings of the stockholders, the
Board of Directors and the Executive Committee, and cause the same to be
recorded in books provided for that purpose;
(b) Prepare, or cause to be prepared, and submit to the
Chairman of each meeting of the stockholders a certified list, in
alphabetical order, of the names of the stockholders entitled to vote at
such meeting, together with the number of shares of stock held by each;
(c) See that all notices are duly given in accordance with
provisions of these Bylaws or as required by statute;
(d) Be custodian of the records of the Corporation, the Board
of Directors and the Executive Committee, and of the seal of the
Corporation; see that the seal is affixed to all stock certificates prior
to their issuance and to all documents the execution of which on behalf of
the Corporation under its seal shall have been duly authorized, and attest
the seal when so affixed;
(e) See that all books, reports, statements, certificates and
the other documents and records required by law to be kept or filed are
properly kept or filed;
(f) In general, perform all duties and have all powers
incident to the office of the Secretary and perform such other duties and
have such other powers as from time to time may be assigned to him or her
by these Bylaws or by the Board of Directors or by the President;
(g) Whenever any committee shall be appointed in pursuance of
a resolution of the Board of Directors, furnish the chairman of such
committee with a copy of such resolution;
(h) Have charge of the stock and transfer books of the
Corporation, and exhibit such stock book at all reasonable times to such
persons as are entitled by statute to have access thereto; and
(i) Sign (unless the Treasurer or any Assistant Secretary or
an Assistant Treasurer shall sign) certificates representing stock of the
corporation the issuance of which shall have been duly authorized (the
signature to which may
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be a facsimile signature).
At the request of the Secretary, or in his or her absence or
disability, any Assistant Secretary shall perform any of the duties of the
Secretary and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the Secretary. Except where by law the signature of
the Secretary is required, each of the Assistant Secretaries shall possess the
same power as the Secretary to sign certificates, contracts, obligations and
other instruments of the Corporation, and to affix the seal of the Corporation
to such instruments, and attest the same. The Assistant Secretaries shall
perform such other duties as from time to time may be assigned to them
respectively by the Board of Directors, the President or the Secretary.
Section 5.11. The Treasurer and the Assistant Treasurers. The
Treasurer shall:
(a) Have charge of and supervision over and be responsible for
the funds, including the borrowing thereof, the securities, receipts and
disbursements of the Corporation;
(b) Cause all moneys and other valuable effects of the
Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies or with such bankers or other
depositaries as shall be selected by the Board of Directors or Executive
Committee, or pursuant to authority conferred by the Board of Directors or
Executive Committee;
(c) Cause the funds of the Corporation to be disbursed by
checks or drafts upon the authorized depositaries of the Corporation;
(d) Cause to be taken and preserved proper vouchers for all
moneys disbursed;
(e) Cause to be kept correct books of account of all the
business and transactions of the Corporation and upon application cause
such books of account to be exhibited to any director;
(f) Render to the President, the Board of Directors of the
Executive Committee, whenever requested, an account of the financial
conditions of the Corporation and of his or her transactions at Treasurer;
(g) Be empowered, from time to time, to require from the
officers or agents of the Corporation reports or statements giving such
information as he or she may desire with respect to any and all financial
transactions of the Corporation;
(h) Sign (unless the Secretary or an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing stock of the
Corporation the issuance of which shall have been duly authorized (the
signature to which may be a facsimile signature); and
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(i) In general, perform all duties and have all powers
incident to the office of Treasurer and perform such other duties and have
such other powers as from time to time may be assigned to him or her by
these Bylaws or by the Board of Directors or by the President.
At the request of the Treasurer or, in his or her absence or
disability, the Assistant Treasurer or, in case there shall be more than one
Assistant Treasurer, the Assistant Treasurer designated by the Board of
Directors or by the Executive Committee or by the President shall perform any of
the duties of the Treasurer and, when so acting, shall have all the powers of,
and be subject to all the restrictions upon, the Treasurer. Except where by law
the signature of the Treasurer is required, each of the Assistant Treasurers
shall possess the same power as the Treasurer to sign all certificates,
contracts, obligations and other instruments of the Corporation. The Assistant
Treasurers shall perform such other duties as from time to time may be assigned
to them respectively by the Board of Directors, the President or the Treasurer.
Section 5.12. Salaries. The salaries of the officers shall be fixed
from time to time by the Board of Directors, except that the Board of Directors
may delegate to any person the power to fix the salaries or other compensation
of any officers or agents appointed in accordance with the provisions of Section
5.3 hereof. No officer shall be prevented from receiving such salary by reason
of the fact that he or she is also a director of the Corporation.
Section 5.13. Surety Bonds. If the Board of Directors shall so
require, any officer or agent of the Corporation shall execute to the
Corporation a bond in such sum and with such surety or sureties as the Board of
Directors may direct, conditioned upon the faithful discharge of his or her
duties, including responsibility for negligence and for the accounting for all
property, funds or securities of the Corporation which may come into his or her
hand.
ARTICLE VI
CONTRACTS, CHECKS, LOANS, DEPOSITS AND PROXIES
Section 6.1. Contracts, Checks, Etc. All contracts and agreements
authorized by the Board of Directors, and all checks, drafts, bills of exchange
or other orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation shall be signed by such
officer or officers, or agent or agents, as may from time to time be designated
by the Board of Directors, which designation may be general or confined to
specific instances. The President, an Executive Vice President or a Vice
President and the Treasurer shall have the power and authority to bind the
Corporation by contract or engagement or to pledge its credit or to render it
liable pecuniarily for any purpose or for any amount; and no other officer,
agent or employee of the Corporation shall have any such power and authority
unless so designated by the Board of Directors or in or pursuant to the
provisions of these Bylaws.
Section 6.2. Proxies in Respect of Securities of Other Corporations.
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Unless otherwise provided by resolution adopted by the Board of Directors, the
President or an Executive Vice President may from time to time appoint an
attorney or attorneys, or an agent or agents, to exercise in the name and on
behalf of the Corporation the powers and rights which the Corporation may have
as the holder of stock or other securities in any other corporation to vote or
to consent in respect of such stock or other securities; and the President or
any Executive Vice President may instruct the person or persons so appointed as
to the manner or exercising such powers and rights and the President or any
Executive Vice President may execute or cause to be executed in the name and on
behalf of the Corporation and under its corporate seal, or otherwise, all such
written proxies, power of attorney or other written instruments as he or she may
deem necessary in order that the Corporation may exercise such powers and
rights.
Section 6.3. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to its credit in such banks or
trust companies or with such bankers or other depositaries as the Board of
Directors may select, or as may be selected by any officer or officers or agent
or agents authorized so to do by the Board of Directors. Endorsements for
deposit to the credit of the Corporation in any of its duly authorized
depositaries shall be made in such manner as the Board of Directors from time to
time may determine.
ARTICLE VII
CERTIFICATES OF STOCK
Section 7.1. Form; Signature. The certificates of stock of the
Corporation shall be numbered and shall be entered in the books of the
Corporation as they are issued. They shall exhibit the holder's name and number
of shares and shall be signed by the President, Executive Vice President or a
Vice President and the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary.
Section 7.2. Transfer. Transfers of stock shall be made on the books
of the Corporation only by the person named in the certificate or by his or her
attorney, lawfully constituted in writing, and upon surrender of the certificate
therefor.
Section 7.3. Record Dates. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may, in its
discretion, fix, in advance, a record date, which shall be not more than 60 nor
less than 10 days before the date of such meeting, nor more than 60 days prior
to any other action. Only those stockholders of record on the date so fixed
shall be entitled to any of the foregoing rights, notwithstanding the transfer
of any such stock on the books of the Corporation after any such record date
fixed by the Board of Directors. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the
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Board of Directors may fix a new record date for the adjourned meeting.
Section 7.4. Closing of Transfer Books. The Board of Directors may
close the transfer books in its discretion for a period not exceeding 60 days
preceding any meeting, annual or special, of the stockholders or the day
appointed for the payment of a dividend.
Section 7.5. Record Owner. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any equitable or other
claim to or interest in such share on the part of any other person, whether or
not it shall have express or other notice thereof, unless the laws of Delaware
expressly provide otherwise.
Section 7.6. Lost Certificates. Any person claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation of that
fact and advertise the same in such manner as the Board of Directors may
require, and shall if the directors so require give the Corporation a bond of
indemnity, in form and with one or more sureties satisfactory to the Board of
Directors, in at least double the value of the stock represented by said
certificate, whereupon a new certificate may be issued of the same tenor and for
the same number of shares as the one alleged to be lost or destroyed.
ARTICLE VIII
DIVIDENDS
Dividends upon the capital stock of the Corporation, when earned,
may be declared by the Board of Directors at any regular or special meeting.
Before payment of any dividend or making any distribution of
profits, there may be set aside out of the surplus or net profits of the
Corporation such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve fund to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the directors shall think conducive to
the interests of the Corporation.
ARTICLE IX
RELIANCE ON RECORDS AND REPORTS
Each director, officer or member of any committee designated by, or
by authority of, the Board of Directors shall, in the performance of his or her
duties, be fully protected in relying in good faith upon the books of account or
other records of the Corporation or of any of its subsidiaries or upon reports
made to the Corporation or any of its subsidiaries by any official of the
Corporation or of a subsidiary or by an independent certified public accountant
or by an appraiser selected with reasonable care by the Board of Directors or by
any such committee.
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ARTICLE X
CORPORATE SEAL
The corporate seal shall be circular in form and shall bear the name
of the Corporation and words and figures denoting its organization under the
laws of the State of Delaware and otherwise shall be in such form as shall be
approved from time to time by the Board of Directors.
ARTICLE XI
FISCAL YEAR
The fiscal year of the Corporation shall be such 12-month period of
each calendar year as may be fixed from time to time by resolution of the Board
of Directors.
ARTICLE XII
WAIVER OF NOTICE
Whenever any notice whatsoever is required to be given by these
Bylaws or the Certificate of Incorporation of the Corporation or any of the
corporate laws of the State of Delaware, a waiver thereof in writing, signed by
the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE XIII
AMENDMENTS
The Bylaws of the Corporation, regardless of whether made by the
stockholders or by the Board of Directors, may be amended, added to or repealed
at any meeting of the Board of Directors or of the stockholders provided that
notice of the proposed change is given in the notice of the meeting. No change
of the time or place for the annual meeting of the stockholders for the election
of directors shall be made except in accordance with the laws of the State of
Delaware.
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RESOLUTIONS OF THE BOARD OF DIRECTORS OF
STRUCTURED ASSET SECURITIES CORPORATION
The undersigned, being all of the members of the Board of Directors
of Structured Asset Securities Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), do hereby consent
pursuant to Section 141(f) of the General Corporation Law of the State of
Delaware, to the adoption of the following resolutions.
WHEREAS, the Board of Directors has determined that it is in the
best interests of the Corporation that it issue and sell commercial mortgage
pass-through certificates known as LB Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 1998-C4 (the "Certificates").
NOW, THEREFORE, IT IS RESOLVED, that the Corporation cause to be
offered the Certificates, in an aggregate certificate principal amount of
approximately $2,025,590,706, pursuant to the terms of a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), to be entered into by and
among the Corporation as depositor, First Union National Bank as master
servicer, Lennar Partners, Inc. as special servicer, LaSalle National Bank as
trustee and ABN AMRO Bank, N.V. as fiscal agent;
RESOLVED, that the acquisition by the Corporation of commercial and
multifamily mortgage loans from LUBS, Inc. and Lehman Brothers Holdings Inc.,
doing business as Lehman Capital, a division of Lehman Brothers Holdings Inc.,
pursuant to separate mortgage loan purchase agreements as set forth in the
Offering Documents (as defined below) in connection with the issuance of the
Certificates, is hereby approved;
RESOLVED, that the Corporation enter into both an underwriting
agreement and a certificate purchase agreement with Lehman Brothers Inc. to
provide for the sale of the Certificates substantially in the manner set forth
in the prospectus and prospectus supplement (together, the "Prospectus")
relating to the publicly offered Certificates, and in the manner set forth in
the private placement memorandum (the "Private Placement Memorandum") relating
to the privately offered Certificates (the Prospectus and the Private Placement
Memorandum, together, the "Offering Documents"), with such changes therein,
additions thereto and deletions therefrom as may be approved by the President,
any Managing Director, Senior Vice President, Vice President or Authorized
Signatory (each, an "Authorized Officer"), is hereby approved;
RESOLVED, that each Authorized Officer is hereby authorized to
determine the terms and conditions for the offer and sale of the Certificates;
RESOLVED, that the Corporation be, and hereby is, authorized to (a)
establish a trust for the issuance and sale of the Certificates (the "Trust"),
which shall have such designations, initial certificate principal amounts,
initial notional amounts, pass-through rates and other terms, all substantially
as set forth in the Offering Documents with such modifications as any Authorized
Officer may approve and (b) acquire and convey to the trust certain commercial
and multifamily mortgage
<PAGE>
loans (the "Mortgage Loans"), all substantially as set forth in the Offering
Documents with such modifications as any Authorized Officer may approve;
RESOLVED, that each Authorized Officer is hereby authorized to enter
into and execute and deliver in the name and on behalf of the Corporation, a
pooling and servicing agreement, an underwriting agreement, a certificate
purchase agreement and two mortgage loan purchase agreements with the terms and
conditions contemplated by the Offering Documents and with such additional and
alternative terms and conditions as the Authorized Officer executing the same
may deem necessary or appropriate, and that the transactions contemplated
thereby be, and hereby are, approved;
RESOLVED, that each Authorized Officer is hereby authorized and
directed to take all such actions as such Authorized Officer shall deem
necessary or appropriate in order to obtain a rating of any Certificate by one
or more nationally recognized rating organizations;
RESOLVED, that each Authorized Officer is hereby authorized and
directed to pay any and all expenses and fees arising in connection with the
sale of the Certificates or otherwise in connection with these resolutions;
RESOLVED, that the Offering Documents, each substantially in the
form as presented to this Board of Directors, with such changes therein as any
Authorized Officer shall approve, are hereby approved;
RESOLVED, that each Authorized Officer is hereby authorized and
directed to execute and deliver, in the name and on behalf of the Corporation,
any and all additional instruments, documents or agreements and to take such
further action as to any of them appears necessary or desirable to carry into
effect the intent and purpose of the foregoing resolutions; and
RESOLVED, that any and all actions of each Authorized Officer or any
agents of the Corporation in connection with the matters contemplated by the
foregoing resolutions taken prior to the date hereof be, and they hereby are,
approved, ratified and adopted in all respects as fully as if such actions had
been presented to this Board of Directors for its approval prior to such actions
being taken.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 24th
day of November, 1998.
Neal Leonard
/s/ Neal Leonard
-------------------------------------
Director
James Sullivan
-------------------------------------
Director
Mark Zusy
-------------------------------------
Director
<PAGE>
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 24th
day of November, 1998.
Neal Leonard
-------------------------------------
Director
James Sullivan
/s/ James Sullivan
-------------------------------------
Director
Mark Zusy
-------------------------------------
Director
<PAGE>
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 24th
day of November, 1998.
Neal Leonard
-------------------------------------
Director
James Sullivan
-------------------------------------
Director
Mark Zusy
/s/ Mark Zusy
-------------------------------------
Director
