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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) October 14, 1999
Structured Asset Securities Corporation
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 333-49129 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 October 14, 1999, a single series of certificates, entitled LB
Commercial Mortgage Trust 1999-C2, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2 (the "Certificates"), was issued pursuant to a
pooling and servicing agreement (the "Pooling and Servicing Agreement"), entered
into by and among Structured Asset Securities Corporation (the "Registrant"), a
master servicer, a special servicer, a trustee and a fiscal agent. The Pooling
and Servicing Agreement is attached hereto as Exhibit 4.1. Certain classes of
the Certificates, designated as Class A-1, Class A-2, Class B, Class C, Class D,
Class E, Class F 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 between the Registrant and the Underwriter. The
Underwriting Agreement is attached hereto as Exhibit 1.1.
In connection with the sale of the Underwritten Certificates, the
Registrant has been advised that prospective investors may have been furnished
with certain materials attached hereto as Exhibit 99.1 that constitute
"Computational Materials" (as defined in the no-action letter dated May 20, 1994
issued by the Division of Corporation Finance of the Securities and Exchange
Commission (the "Commission") to Kidder, Peabody Acceptance Corporation I,
Kidder, Peabody & Co. Incorporated, and Kidder Structured Asset Corporation and
the no-action letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association) and/or "ABS Term
Sheets" (as defined in the no-action letter dated February 17, 1995 issued by
the Division of Corporation Finance of the Commission to the Public Securities
Association).
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
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1.1 Underwriting Agreement, dated as of September 29, 1999, between
Structured Asset Securities Corporation, as seller and Lehman
Brothers Inc., as underwriter.
4.1 Pooling and Servicing Agreement, dated as of October 1, 1999,
among Structured Asset Securities Corporation, as depositor, First
Union National Bank, as master servicer, ORIX Real Estate Capital
Markets, LLC, as special servicer, LaSalle Bank National
Association, as trustee and ABN AMRO Bank N.V., as fiscal agent.
99.1 Certain materials constituting Computational Materials and/or ABS
Term Sheets prepared and disseminated in connection with the sale
of the Underwritten Certificates.
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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: October 14, 1999
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ James C. Blakemore
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Name: James C. 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 September 29, 1999,
between Structured Asset Securities Corporation, as
seller and Lehman Brothers Inc., as underwriter.
4.1 Pooling and Servicing Agreement, dated as of October 1,
1999, among Structured Asset Securities Corporation, as
depositor, First Union National Bank, as master
servicer, ORIX Real Estate Capital Markets, LLC, as
special servicer, LaSalle Bank National Association, as
trustee and ABN AMRO Bank N.V., as fiscal agent.
99.1 Certain materials constituting Computational Materials
and/or ABS Term Sheets prepared and disseminated in
connection with the sale of the Underwritten
Certificates.
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STRUCTURED ASSET SECURITIES CORPORATION
UNDERWRITING AGREEMENT
As of September 29, 1999
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 the 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 the Company and Holdings. The other Mortgage Loans will be
acquired by the 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 October 1, 1999
(the "Pooling and Servicing Agreement"), among the Company as depositor, LaSalle
Bank National Association as trustee (the "Trustee"), First Union National Bank
as master servicer (the "Master Servicer"), ORIX Real Estate Capital Markets,
LLC 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 retained by the
Company or privately placed with a limited number of institutional investors.
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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 (the "1933 Act"), and the rules and regulations of the Commission
thereunder, including Rule 415, and has become effective under the 1933 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 1933 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 1933 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 1933 Act. The aggregate principal
amount of the Certificates does not exceed the remaining amount of
mortgage-backed securities that may be offered and sold 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 rules and regulations of the Commission
thereunder; 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 such agreement or the Pooling and Servicing
Agreement that purport or are construed 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 the Underwriter 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 state or Federal 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
upon 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
an amount equal to interest accrued thereon pursuant to the terms thereof from
October 1, 1999 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 October
14, 1999 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 the 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 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 acknowledge that they
have prepared and provided) to prospective investors certain Computational
Materials or ABS Term Sheets in connection with the 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 in
respect of the Certificates provided to prospective investors by the
Underwriter 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 in respect of the
Certificates, 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 any such Computational Materials and
ABS Term Sheets in respect of the Certificates provided to prospective
investors by the Underwriter 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 such 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 in respect of
the Certificates provided to prospective investors by the Underwriter 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
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under the 1933 Act and the rules and regulations of the Commission
thereunder, any Computational Materials or ABS Term Sheets in respect of
the Certificates provided to prospective investors by the Underwriter 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 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 in
respect of the Certificates 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
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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 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 relating to or covering the Certificates that may, in the
judgment of the Company or the Underwriter, be required by the 1933 Act and the
rules and regulations of the Commission thereunder 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 relating to or covering the Certificates, 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 issues an 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
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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 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 Section 5(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"), and the rules and regulations
of the Commission under the 1933 Act and 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 in
respect of the Certificates furnished by the Underwriter and identified by it as
such. Subject to compliance by the Underwriter with Section 4(b)(iv), 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.
Subject to compliance by the Underwriter with Section 4(b)(iv), 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 prior to the Closing Date 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:
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(a) 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 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, the Mortgage Loan Purchase Agreements or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, in the Pooling and Servicing Agreement or in
the Mortgage Loan Purchase Agreements, 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, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreements.
(e) The Underwriter 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 the Underwriter 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.
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(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 and other than information
incorporated therein by reference, 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 of
the Commission 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 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 Mortgage Loan Purchase Agreements and the Pooling and
Servicing Agreement each constitute 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 such agreement that purport or are construed to
provide indemnification from securities law liabilities.
(vi) The Certificates, when duly and validly executed, authenticated
and delivered in accordance with the Pooling and Servicing Agreement and
paid for in accordance with this 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, are accurate in all material respects.
(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
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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, Class A-2, Class B and
Class X Certificates will be "mortgage related securities", as defined in
Section 3(a)(41) under 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 the Trust
Fund is not 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 Agreement, except (A) such as have been
obtained under the 1933 Act, (B) such as may be required under state
securities laws or 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, 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, Class M, Class N and Class P 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.
(xiii) The portion of the Trust Fund consisting of the Grantor Trust
(as defined in the Prospectus Supplement) will be classified as a grantor
trust under subpart E, part I of subchapter J of the Internal Revenue Code
of 1986.
In giving its opinions pursuant to this Section 6(e), Sidley & Austin,
special counsel to the Company, 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
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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), Sidley & Austin,
special counsel to the Company, 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 them as of date thereof.
(g) The Underwriter shall have received from Scott Lechner, 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, this Agreement and the Pooling and
Servicing Agreement.
(ii) Each of the Mortgage Loan Purchase Agreements, this Agreement
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, this Agreement and the Mortgage Loan Purchase
Agreements by the Company, and the consummation of the transactions
contemplated hereby or 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).
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(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 Pooling
and Servicing Agreement, this Agreement and the Mortgage Loan Purchase
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
the Company of its obligations under the Pooling and Servicing Agreement,
this Agreement and the Mortgage Loan Purchase Agreements.
In giving his opinions required pursuant to this Section 6(g), Scott
Lechner, Esq., counsel to the Company, 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.
(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 and Annex A-3 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 Trustee and the Fiscal Agent, 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
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certificates or other documents furnished by officers and/or authorized
representatives of the parties to 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 laws of the State of New York, the laws of the jurisdiction of organization
for the party on behalf of which such opinion is being rendered and the federal
law of the United States.
(j) The Underwriter shall have been furnished with all documents,
certificates and opinions required 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 required 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 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 material 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 in all material respects any agreement herein or comply in all material
respects 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 any of them in connection with the proposed
purchase and sale of the Certificates.
8. Indemnification.
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(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
Prospectus or any Preliminary 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, 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 such
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 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 any Computational Materials or ABS Term
Sheets (or amendments thereof or supplements thereto) in respect of the
Certificates delivered to prospective investors by the Underwriter and furnished
to the Company by the Underwriter pursuant to Section 4(b)(iv) and made a part
of the Registration Statement or incorporated by reference in any Preliminary
Prospectus or the Prospectus, except to the extent that any such untrue
statement or omission results from an error (a "Collateral Error") in the
information regarding the characteristics of the Mortgage Loans, Mortgaged
Properties and/or Borrowers furnished by the Company to the Underwriter in
writing for use in such Computational Materials or ABS Term Sheets (and, if the
Company has notified the
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Underwriter in writing of such Collateral Error or provided in written or
electronic form information superseding or correcting such Collateral Error (in
any such case, a "Corrected Collateral Error") prior to the time of confirmation
of sale to the person that purchased the Certificates that are the subject of
any such loss, liability, claim, damage or expense, or action in respect
thereof, the Underwriter has failed to deliver to such person corrected
Computational Materials or ABS Term Sheets (or, if the superseding or correcting
information is contained in the Prospectus, has failed to deliver to such person
such Prospectus) prior to confirmation of such sale to such person); and
provided, further, that the foregoing indemnity with respect to any Preliminary
Prospectus 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 such Preliminary Prospectus 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 Prospectus or any Preliminary
Prospectus (or any amendment thereof or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Prospectus or such Preliminary Prospectus
(or any amendment or supplement thereto); or made in any Computational Materials
or ABS Term Sheets in respect of the Certificates furnished by the Underwriter
to prospective investors; provided, however, that the foregoing indemnity shall
not apply to any such loss, liability, claim, damage or expense to the extent
arising out of an untrue statement or omission in any such Computational
Materials or ABS Term Sheets resulting from a Collateral Error, except to the
extent that such Collateral Error became a Corrected Collateral Error prior to
the time of confirmation of sale to the person that purchased the Certificates
that are the subject of any such loss, liability, claim, damage or expense, or
action in respect thereof, and the Underwriter failed to deliver to such person
corrected Computational Materials or ABS Term Sheets (or, if the superseding or
correcting information is contained in the Prospectus, failed to deliver to such
person such Prospectus) prior to confirmation of such sale to such person. It is
hereby acknowledged that (i) the statements set forth in the first, second and
third sentences of the last paragraph on the cover of the Prospectus Supplement,
and (ii) the statements in the first sentence of each of the second and fourth
paragraphs under the caption "Method of Distribution" in the Prospectus
Supplement, constitute the only written information furnished to the Company by
the Underwriter expressly for use in the Prospectus or any Preliminary
Prospectus (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
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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 or 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
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 underwritten by it. 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
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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 subsection (c) below.
(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
Three World Financial Center, 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.
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 and the
contribution agreement of the Underwriter contained in Section 9 hereof shall
each 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 hereof and the contribution agreement of the Company contained in
Section 9 hereof shall each be deemed to be also for the benefit of any person
controlling the Underwriter. Nothing in this Agreement is intended or shall
-20-
<PAGE>
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.
-21-
<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: /s/ James Blakemore
---------------------------------
Name: James Blakemore
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
LEHMAN BROTHERS INC.
By: /s/ Mary Pat Archer
------------------------------
Name: Mary Pat Archer
Title: Managing Director
<PAGE>
SCHEDULE I
Underwriting Agreement, dated as of September 29, 1999.
Title and Description of the Certificates:
LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2, Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F and Class X.
Cut-off Date: As defined in the Prospectus Supplement
Expected Closing Date: October 14, 1999
CERTIFICATES
<TABLE>
<CAPTION>
====================================================================================================================================
Class A-1 Class A-2 Class B Class C Class D Class E Class F Class X
--------- --------- ------- ------- ------- ------- ------- -------
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Initial Aggregate
Certificate Principal
Amount or Certificate
Notional Amount $255,000,000 $450,024,000 $37,928,000 $37,929,000 $13,386,000 $23,427,000 $12,271,000 $892,435,593(1)
- ------------------------------------------------------------------------------------------------------------------------------------
Initial Pass-Through Rate 7.10500% 7.32500% 7.42500% 7.47000% 7.47000% 7.47000% 7.47000% Variable
- ------------------------------------------------------------------------------------------------------------------------------------
Rating(2) Aaa/AAA Aaa/AAA Aa2/AA A2/A A3/A- Baa2/BBB Baa3/BBB- Aaa/AAA
- ------------------------------------------------------------------------------------------------------------------------------------
Purchase Price(3)
====================================================================================================================================
</TABLE>
- ---------------
(1) Notional amount.
(2) By Moody's Investors Service, Inc. and Duff & Phelps Credit Rating Co.,
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 October 1, 1999 to but not including the Closing Date.
EXECUTION COPY
================================================================================
STRUCTURED ASSET SECURITIES CORPORATION
Depositor
FIRST UNION NATIONAL BANK
Master Servicer
and
ORIX REAL ESTATE CAPITAL MARKETS, LLC
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION
Trustee
and
ABN AMRO BANK N.V.
Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 1999
------------------------------
$892,435,594
LB Commercial Mortgage Trust 1999-C2
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01. Defined Terms...................................................5
SECTION 1.02. General Interpretive Principles................................59
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Mortgage Loans................60
SECTION 2.02. Acceptance of Trust Fund by Trustee............................61
SECTION 2.03. Repurchase of Mortgage Loans for Document Defects
and Breaches of Representations and Warranties.................63
SECTION 2.04. Representations, Warranties and Covenants of the Depositor.....64
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests............81
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee............................................82
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates...................................................82
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee...........................................82
SECTION 2.09. Execution, Authentication and Delivery of REMIC III
Certificates...................................................82
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans...........................84
SECTION 3.02. Collection of Loan Payments....................................85
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
-i-
<PAGE>
Page
----
Servicing Accounts; Reserve Accounts...........................87
SECTION 3.04. Pool Custodial Account, Defeasance Deposit Account,
Collection Account.............................................91
SECTION 3.04A. Century City and SunAmerica Custodial Accounts.................94
SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account,
the Collection Account and the Interest Reserve Account........96
SECTION 3.05A. Permitted Withdrawals From the Century City and SunAmerica
Custodial Accounts............................................101
SECTION 3.06. Investment of Funds in the Servicing Accounts, the Reserve
Accounts, the Defeasance Deposit Account, the Custodial
Accounts, the Collection Account, the Interest Reserve
Account and the REO Accounts..................................103
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.........................................105
SECTION 3.08. Enforcement of Alienation Clauses.............................108
SECTION 3.09. Realization Upon Defaulted Loans; Required Appraisals;
Appraisal Reduction Calculation...............................111
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage
Files.........................................................115
SECTION 3.11. Servicing Compensation........................................117
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports...................................120
SECTION 3.12A. Delivery of Certain Reports to the Companion Loan
Noteholders...................................................123
SECTION 3.12B Statements to Companion Loan Noteholders......................124
SECTION 3.13. Annual Statement as to Compliance.............................124
SECTION 3.14. Reports by Independent Public Accountants.....................125
SECTION 3.15. Access to Certain Information.................................126
SECTION 3.16. Title to REO Property; REO Accounts...........................126
SECTION 3.17. Management of REO Property....................................128
SECTION 3.17A Management and Disposition of the Century City Mortgaged
Property and the SunAmerica Mortgaged Property After
Becoming REO Property.........................................131
SECTION 3.18. Sale of Mortgage Loans and REO Properties.....................133
SECTION 3.19. Additional Obligations of the Master Servicer.................136
SECTION 3.20. Modifications, Waivers, Amendments and Consents...............137
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping..............................143
SECTION 3.22. Sub-Servicing Agreements......................................145
SECTION 3.23. Representations and Warranties of the Master Servicer.........147
-ii-
<PAGE>
Page
----
SECTION 3.24. Representations and Warranties of the Special Servicer........149
SECTION 3.25. Year 2000 Readiness of the Master Servicer and the
Special Servicer..............................................150
SECTION 3.26. Credit Leases.................................................151
SECTION 3.27. Certain Required Consultations with the Companion Loan
Noteholders...................................................152
SECTION 3.28. Certain Matters Regarding the Purchase of the Century City
Mortgage Loan and the SunAmerica Mortgage Loan................153
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.................................................154
SECTION 4.02. Statements to Certificateholders; CMSA Loan Periodic
Update File Report............................................164
SECTION 4.03. P&I Advances..................................................171
SECTION 4.03A P&I Advances on the Loan Pairs................................174
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses.................................................176
SECTION 4.05. Calculations..................................................177
SECTION 4.06. Use of Agents.................................................178
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates..............................................179
SECTION 5.02. Registration of Transfer and Exchange of Certificates.........179
SECTION 5.03. Book-Entry Certificates.......................................185
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.............187
SECTION 5.05. Persons Deemed Owners.........................................187
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
-iii-
<PAGE>
Page
----
SECTION 6.01. Liability of Depositor, Master Servicer and
Special Servicer..............................................188
SECTION 6.02. Merger, Consolidation or Conversion of Depositor,
Master Servicer or Special Servicer...........................188
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and
Special Servicer..............................................189
SECTION 6.04. Resignation of Master Servicer and the Special Servicer.......190
SECTION 6.05. Rights of Depositor, Trustee and Companion Loan Noteholders
in Respect of Master Servicer and the Special Servicer........190
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee........................................191
SECTION 6.07. Depositor, Special Servicer, Trustee and Companion Loan
Noteholder to Cooperate with Master Servicer..................191
SECTION 6.08. Depositor, Master Servicer, Trustee and Companion Loan
Noteholder to Cooperate with Special Servicer.................191
SECTION 6.09. Designation of Special Servicer by the Controlling Class......192
SECTION 6.10. Master Servicer or Special Servicer as Owner of
a Certificate.................................................193
SECTION 6.11. Certain Powers of the Controlling Class Representative........193
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.............................................196
SECTION 7.02. Trustee to Act; Appointment of Successor......................201
SECTION 7.03. Notification to Certificateholders............................202
SECTION 7.04. Waiver of Events of Default...................................202
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default..........202
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.............................................204
SECTION 8.02. Certain Matters Affecting Trustee.............................205
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.................206
-iv-
<PAGE>
Page
----
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.................207
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by
Trustee.......................................................207
SECTION 8.06. Eligibility Requirements for Trustee..........................208
SECTION 8.07. Resignation and Removal of Trustee............................208
SECTION 8.08. Successor Trustee.............................................210
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent...........210
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.................210
SECTION 8.11. Appointment of Custodians.....................................211
SECTION 8.12. Appointment of Authenticating Agents..........................212
SECTION 8.13. Appointment of REMIC Administrators...........................213
SECTION 8.14. Access to Certain Information.................................214
SECTION 8.15. Reports to the Securities and Exchange Commission and
Related Reports...............................................215
SECTION 8.16. Representations and Warranties of Trustee.....................218
SECTION 8.17. The Fiscal Agent..............................................219
SECTION 8.18. Representations and Warranties of Fiscal Agent................220
SECTION 8.19. Year 2000 Readiness of the Trustee............................222
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans................................................223
SECTION 9.02. Additional Termination Requirements...........................230
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration..........................................232
SECTION 10.02. Grantor Trust Administration..................................235
ARTICLE XI
MISCELLANEOUS PROVISIONS
-v-
<PAGE>
Page
----
SECTION 11.01. Amendment.....................................................238
SECTION 11.02. Recordation of Agreement; Counterparts........................240
SECTION 11.03. Limitation on Rights of Certificateholders and Companion
Loan Noteholders..............................................240
SECTION 11.04. Governing Law.................................................241
SECTION 11.05. Notices.......................................................241
SECTION 11.06. Severability of Provisions....................................242
SECTION 11.07. Grant of a Security Interest..................................242
SECTION 11.08. Streit Act....................................................242
SECTION 11.09. Successors and Assigns; Beneficiaries.........................243
SECTION 11.10. Article and Section Headings..................................243
SECTION 11.11. Notices to Rating Agencies....................................243
SECTION 11.12. Global Opinions...............................................245
SECTION 11.13. Complete Agreement............................................245
-vi-
<PAGE>
SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
- ------------ --------------------
I Mortgage Loan Schedule
II Schedule of Exceptions to Mortgage File Delivery
III Exceptions to the Representations and Warranties of the
Depositor
Exhibit No. Exhibit Description
- ----------- -------------------
A-1 Form of Class [A-1] [A-2] Certificate
A-2 Form of Class X Certificate
A-3 Form of Class [B] [C] [D] [E] [F] Certificate
A-4 Form of Class [G] [H] [J] [K] [L] [M] [N] [P] Certificate
A-5 Form of Class [R-I] [R-II] [R-III] Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
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 Sub-Servicers in respect of which Sub-Servicing Agreements
are in effect or being negotiated as of the Closing Date
L Form of CMSA Loan Periodic Update File Report
M Form of CMSA Property File Report
N Form of Comparative Financial Status Report
-vii-
<PAGE>
Exhibit No. Exhibit Description
- ----------- -------------------
O Form of REO Status Report
P Form of Servicer Watch List
Q Form of Delinquent Loan Status Report
R Form of Historical Loan Modification Report
S Form of Historical Liquidation Report
T Form of NOI Adjustment Worksheet
U Form of Operating Statement Analysis Report
V Form of Loan Payoff Notification Report
W-1 Form of Information Request/Investor Certification for Website
Access from Certificate Owner
W-2 Form of Information Request/Investor Certification for Website
Access from Prospective Investor
-viii-
<PAGE>
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of October 1, 1999, among STRUCTURED ASSET SECURITIES CORPORATION,
as Depositor, FIRST UNION NATIONAL BANK, as Master Servicer, ORIX REAL ESTATE
CAPITAL MARKETS, LLC, as Special Servicer, LASALLE BANK NATIONAL ASSOCIATION, 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 Mortgage 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.
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.
<PAGE>
Initial
REMIC II Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
A-1 Variable (1) $255,000,000
A-2 Variable (1) $450,024,000
B Variable (1) $37,928,000
C Variable (1) $37,929,000
D Variable (1) $13,386,000
E Variable (1) $23,427,000
F Variable (1) $12,271,000
G Variable (1) $11,155,000
H Variable (1) $17,849,000
J Variable (1) $4,462,000
K Variable (1) $7,586,000
L Variable (1) $9,816,000
M Variable (1) $2,678,000
N Variable (1) $2,230,000
P Variable (1) $6,694,593
- --------------------
(1) Calculated in accordance with the definition of "REMIC II Remittance
Rate".
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 Date 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.
-2-
<PAGE>
Class Pass-Through Initial Class
Designation Rate Principal Balance
----------- ---- -----------------
Class A-1 7.105% per annum $255,000,000
Class A-2 7.325% per annum $450,024,000
Class B 7.425% per annum $37,928,000
Class C 7.470% per annum $37,929,000
Class D 7.470% per annum $13,386,000
Class E 7.470% per annum $23,427,000
Class F 7.470% per annum $12,271,000
Class X Variable (1) $892,435,593 (2)
Class G 6.720% per annum $11,155,000
Class H 6.720% per annum $17,849,000
Class J 6.720% per annum $4,462,000
Class K 6.720% per annum $7,586,000
Class L 6.720% per annum $9,816,000
Class M 6.720% per annum $2,678,000
Class N 6.720% per annum $2,230,000
Class P 6.720% per annum $6,694,593
- ----------------
(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 entitle their Holders to receive
distributions of principal. As more specifically provided herein, interest
in respect of such Class of Certificates will consist of the aggregate
amount of interest accrued on the respective Component Notional Amounts of
such Class' Components from time to time.
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 $892,435,593.
There exist two mortgage loans, one in the original principal amount
of $63,500,000 (the "SunAmerica Companion Loan"), and the other in the original
principal amount of $32,000,000 (the "Century City Companion Loan"), that are
not part of the Trust Fund and that are each secured by the same Mortgage as a
Mortgage Loan that is part of the Trust Fund (such Mortgage Loans, the
"SunAmerica Mortgage Loan" and the "Century City Mortgage Loan", respectively).
-3-
<PAGE>
The SunAmerica Companion Loan is currently held by LaSalle Bank
National Association, in its capacity as trustee for the registered holders of
the SunAmerica Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 1999-C2B (in such capacity, the "SunAmerica Trustee"), and the Century
City Companion Loan is currently held by LaSalle Bank National Association, in
its capacity as trustee for the registered holders of the Century City Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C2A (in such
capacity, the "Century City Trustee").
As and to the extent provided herein, the SunAmerica Companion Loan
and the Century City Companion Loan will both be serviced and administered in
accordance with this Agreement.
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.
"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
Class Principal Balance of such Class of Certificates 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 such
Class' Components for such Distribution Date. Accrued Certificate Interest shall
be calculated on a 30/360 Basis.
"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 a 30/360 Basis.
"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.
"Additional Information": As defined in Section 4.02(a).
"Additional Interest": With respect to any ARD Mortgage Loan or
Companion Loan after its Anticipated Repayment Date, all interest accrued on the
principal balance of such ARD Mortgage Loan or Companion Loan, as the case may
be, 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 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 Mortgage Loan or a
Companion Loan or, in either case, 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 Mortgage Loan or
Companion Loan, as the case may be, or any successor REO
-5-
<PAGE>
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 Mortgage Loan or
Companion Loan after its Anticipated Repayment Date, the incremental increase in
the Mortgage Rate for such loan resulting from the passage of such Anticipated
Repayment Date.
"Additional Right": With respect to any Credit Lease, any
termination or abatement rights of the related Tenant arising from a Mortgagor's
default under such Credit Lease in performing certain obligations, including
environmental remediation of conditions not caused by the Tenant, enforcement of
restrictive covenants affecting other property owned by the Mortgagor,
compliance with laws affecting the related Mortgaged Property or common areas
relating to such Mortgaged Property.
"Additional Trust Fund Expense": Any expense experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss that would result in the Holders of Regular Interest Certificates
receiving less than the full amount of principal and/or Distributable
Certificate Interest to which they are entitled on any Distribution Date.
"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 Rating Event": With respect to any Class of Certificates
(or, for so long as any particular Companion Loan is serviced and administered
hereunder, with respect to any class of securities backed by such Companion
Loan), as of any date of determination, the qualification (in the case of
Moody's), downgrade or withdrawal of any rating then assigned to such Class of
Certificates (or class of securities backed by such Companion Loan) by either
Rating Agency.
"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.
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"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 Mortgage Loan and
Companion Loan, the date specified in the related Mortgage Note after which the
Mortgage Rate for such ARD Mortgage Loan or Companion Loan, as the case may be,
will increase as specified in the related Mortgage Note.
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated as of each Determination Date for so long as the
subject Mortgage Loan or Loan Pair constitutes a Required Appraisal Loan,
beginning with the Determination Date immediately following the later of the
date on which the subject Mortgage Loan or Loan Pair 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 such 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 such Required Appraisal Loan through the
most recent Due Date prior to the date of calculation (net of related Master
Servicing Fees and exclusive of any portion thereof that represents Additional
Interest and/or Default Interest), (iii) all accrued and unpaid Master Servicing
Fees, Special Servicing Fees, Liquidation Fees and Workout 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 Expenses 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 or other applicable 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 or, in the case of a Mortgaged
Property securing a Mortgage Loan with a Stated Principal Balance of less than
$1,000,000, a "desktop" value estimate performed by the Special Servicer.
"ARD Mortgage 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 related Mortgagor is required to apply
certain excess monthly cash flow generated by the related Mortgaged Property to
the repayment of the outstanding principal balance on such Mortgage Loan.
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"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 or Companion 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 Stated 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 the related Stated 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 (other than Default 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, the related Stated 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 Pool Custodial Account and the Collection
Account with respect to the respective Mortgage Loans and REO Properties as of
the close of business on the 8th day of the month in which such Distribution
Date occurs (or, if such 8th day is not a Business Day, then on the next
preceding Business Day), 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 Pool 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 and, in the case
of the Century City Mortgage Loan or the SunAmerica Mortgage Loan, Section
4.03A, (iii) the aggregate amount transferred from the Pool REO Account (if
established) to the Pool 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 (v) 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 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
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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 Pool
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 Mortgage 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,
all pursuant to Section 3.04(c), and (vi) any amounts deposited in the Pool
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.
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the amount
of such proceeds (net of any expenses incurred in connection with such bid and
the transfer of servicing), multiplied by a fraction equal to (a) the Servicer
Fee Amount for the Master Servicer or such Sub-Servicer, as the case may be, as
of such date of determination, over (b) the aggregate of the Servicer Fee
Amounts for the Master Servicer and all of the Sub-Servicers as of such date of
determination.
"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.
"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, in Chicago, Illinois 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.
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"Century City Co-Lender and Servicing Agreement": The Co-Lender and
Servicing Agreement, dated as of August 31, 1999, among LBHI as holder of the
Mortgage Note for the Century City Mortgage Loan, the Century City Trustee as
holder of the Mortgage Note for the Century City Companion Loan, First Union as
master servicer, and LaSalle as custodian.
"Century City Companion Loan": As defined in the Preliminary
Statement.
"Century City Custodial Account": A segregated account or accounts
created and maintained by the Special Servicer pursuant to Section 3.04A on
behalf of the Century City Noteholders, which shall be entitled "[NAME OF
SPECIAL SERVICER], as Special Servicer, in trust for [NAMES OF CENTURY CITY
NOTEHOLDERS] as their interests may appear".
"Century City Fiscal Agent": ABN AMRO Bank N.V. or any successor in
interest, in its capacity as fiscal agent under that certain Trust Agreement,
dated as of August 31, 1999, among SASCO, the Century City Trustee and the
Century City Fiscal Agent.
"Century City Loan Pair": Collectively, the Century City Mortgage
Loan and the Century City Companion Loan (and any successor REO Loans).
"Century City Mortgaged Property": The Mortgaged Property securing
the Century City Loan Pair.
"Century City Mortgage Loan": As defined in the Preliminary
Statement. The Century City Mortgage Loan is identified by control number 2 on
the Mortgage Loan Schedule.
"Century City Noteholders": Collectively, the holder of the Mortgage
Note for the Century City Mortgage Loan and the holder of the Mortgage Note for
the Century City Companion Loan.
"Century City REO Account": A segregated account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Century City Noteholders, which shall be entitled "[NAME OF SPECIAL SERVICER],
as Special Servicer, in trust for [NAMES OF CENTURY CITY NOTEHOLDERS], as their
interests may appear".
"Century City Remittance Date": The "Remittance Date" under the
Century City Co- Lender and Servicing Agreement.
"Century City Reserve Account": As defined in Section 3.03(f).
"Century City Servicing Account": As defined in Section 3.03(a).
"Century City Trustee": As defined in the Preliminary Statement.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
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"Certificate": Any one of the LB Commercial Mortgage Trust 1999-C2,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2, 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.
"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 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
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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": Collectively, the Distribution Date
Statement, the CMSA Loan Periodic Update File Report, the CMSA Property File
Report, the Mortgage Pool Data Update Report, the Delinquent Loan Status Report,
the Historical Liquidation Report, the Historical Loan Modification Report, the
REO Status Report, the Servicer Watch List, the Loan Payoff Notification Report
and the Comparative Financial Status Report.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificates": The Class A-1 and Class A-2 Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" 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.
"Class A Principal Distribution Cross-Over Date": The first
Distribution Date as of the commencement of which (i) the Class A-1 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, Class N and Class P
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.
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"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-3
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.
"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 P Certificate": Any of the Certificates with a "Class P"
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
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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": October 14, 1999.
"CMSA Loan Periodic Update File Report": The monthly report in the
"CMSA Loan Periodic Update File" format substantially containing the information
called for in such format for the Mortgage Loans and the Companion 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.
"CMSA Property File Report": The monthly report in the "CMSA
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.
"Code": The Internal Revenue Code of 1986 and regulations
promulgated thereunder, including proposed regulations to the extent that, by
reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Certificates.
"Co-Lender and Servicing Agreement": Either of the Century City
Co-Lender and Servicing Agreement or the SunAmerica Co-Lender and Servicing
Agreement.
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"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 1999-C2, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2".
"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.
"Commission": The Securities and Exchange Commission or any
successor agency.
"Companion Loan Noteholder": With respect to each Companion Loan,
the holder of the related Mortgage Note.
"Companion Loans": Collectively, the SunAmerica Companion Loan and
the Century City Companion Loan.
"Comparative Financial Status Report": A report containing
substantially 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 and Loan Pair 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, 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,
Component X-N and Component X-P, 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": 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 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 X-P": 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 P outstanding from time to time.
"Component Notional Amount": The notional amount on which any
Component of the Class X Certificates accrues interest, which, 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 as of
such date of determination a Class Principal Balance greater than 25% of its
Original Class Principal Balance, then the Controlling Class shall be the then
outstanding Class of Principal Balance Certificates bearing the latest
alphabetical Class designation. With respect to determining the Controlling
Class, the Class A-1 and Class A-2 Certificates shall be deemed a single Class
of Certificates.
"Controlling Class Certificateholder": As of any date of
determination, any Holder of a Certificate of the Controlling Class.
"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 60603, Attention: Asset Backed Securities Trust Services Group
- - LB Commercial Mortgage Trust 1999-C2.
"Corrected Loan": Any Mortgage Loan or Companion Loan that had been
a Specially Serviced Loan but has ceased to be such in accordance with the
definition of "Specially Serviced Loan" (other than by reason of a Liquidation
Event occurring in respect of such Mortgage Loan or Companion Loan, as the case
may be, 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
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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.
"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.
"Custodial Account": Any of the Pool Custodial Account, the Century
City Custodial Account or the SunAmerica Custodial Account.
"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": October 1, 1999.
"Cut-off Date Balance": With respect to any Mortgage Loan or
Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan, as the case may be, 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.
"DCR": Duff & Phelps Credit Rating Co. or its successor in interest.
If neither such rating agency nor any successor remains in existence, "DCR"
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 Duff & Phelps Credit Rating
Co. herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Debt Service Coverage Ratio": As defined in and determined in
accordance with the provisions of Exhibit E attached hereto.
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"Default Interest": With respect to any Mortgage Loan or Companion
Loan (or, in either case, any 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 Companion Loan, as the case may be (or successor REO Loan), at the related
Mortgage Rate (net of any applicable Additional Interest Rate) and (ii) in the
case of an ARD Mortgage Loan or Companion Loan after the related Anticipated
Repayment Date, any Additional Interest.
"Defaulted Mortgage Loan": A Specially Serviced 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; provided
that "Defaulted Mortgage Loan" shall, in no event, mean a Companion Loan.
"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 in order to obtain a release of the
related Mortgaged Property.
"Defeasance Deposit Account": As defined in Section 3.04(a).
"Defeasance Loan": Any Mortgage Loan or Companion Loan which
requires the related Mortgagor (or permits the holder of such 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 containing substantially
the information described in Exhibit Q attached hereto and including, among
other things, each Mortgage Loan and Companion Loan which, as of the close of
business on the Determination Date occurring at least two (2) Business Days
prior to the delivery of such report, was (1) delinquent 30-59 days, (2)
delinquent 60-89 days, (3) delinquent 90 days or more, (4) current but specially
serviced, (5) in foreclosure but not yet REO Property, or (6) to the knowledge
of the Master Servicer or the Special Servicer, as applicable, the obligation of
a Mortgagor as to which bankruptcy or insolvency proceedings have commenced or
been commenced.
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"Depositor": Structured Asset Securities Corporation or its
successor in interest.
"Depositor Restricted Period": As defined in Section 2.04(c).
"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 each 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; provided that the Determination Date
with respect to the SunAmerica Mortgage Loan, the SunAmerica Companion Loan, the
Century City Mortgage Loan and the Century City Companion Loan (or, in any such
case, a successor REO Loan), for any Distribution Date, shall be the first
Business Day of the month in which such Distribution Date occurs. References in
this Agreement to "Determination Date" are to the applicable Determination Date
for each Mortgage Loan and Companion Loan (or successor REO Loan) and each
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 (other than an REO Loan that was previously a Companion 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), a rate 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; provided that if 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 such 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 Shortfall 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
November 1999.
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"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to: (i) any Mortgage Loan or Companion 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 or
Companion Loan is scheduled to be first due; (ii) any Mortgage Loan or Companion
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 or
Companion 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.
"EDGAR": The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
"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 DCR (if then rated by DCR, and if not then rated by DCR, then an equivalent
rating by at least one nationally recognized statistical rating agency besides
Moody's) (or, in the case of either Rating Agency, so long as the account does
not relate solely to the Century City Loan Pair or the SunAmerica Loan Pair,
such lower rating as will not result in an Adverse Rating Event, as evidenced in
writing by each 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 "D-1+" by DCR (if then rated by DCR, and if
not then rated by DCR, then an equivalent rating by at least one nationally
recognized statistical rating agency besides Moody's) (or, in the case of either
Rating Agency, so long as the account does not relate solely to the Century City
Loan Pair or the SunAmerica Loan Pair, such lower rating as will not result in
an Adverse Rating Event, as evidenced in writing by each 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 has a combined capital and surplus of at least
$50,000,000, is subject to supervision or examination by federal or state
authority and, 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), or (iii) so long as the account
does not relate solely to the Century City Loan Pair or the SunAmerica Loan
Pair, any other account, the use of which would not, in and of itself, cause an
Adverse Rating Event, as confirmed in writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as described in
and meeting the criteria of Chapter 5 of the Fannie Mae Multifamily Guide and an
ASTM Standard for Environmental Site Assessments, each as amended from time to
time.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
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"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, the Class J
Certificates, the Class K Certificates, the Class L Certificates, the Class M
Certificates, the Class N Certificates and the Class P Certificates.
"Fannie Mae": The Federal National Mortgage Association or any
successor.
"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, Companion Loan or REO Property
(other than a Mortgage Loan or Companion 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 a 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 a Controlling Class Certificateholder
pursuant to Section 9.01 and other than the Century City Mortgage Loan or the
SunAmerica Mortgage Loan if purchased by or through the related Companion Loan
Noteholder pursuant to the related Co-Lender and Servicing Agreement) 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.
"First Union": First Union National Bank or its successor in
interest.
"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.
"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 Mortgage 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.
"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 Liquidation Report": A report containing substantially
the information described in Exhibit S attached hereto, and setting forth with
respect to the Mortgage Loans and the Companion Loans, among other things, as of
the close of business on the Determination Date occurring at least two (2)
Business Days prior to the delivery 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 loan-by-loan basis.
"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 and Companion Loans
which, as of the close of business on the Determination Date occurring at least
two (2) Business Days prior to the delivery 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.
"Holder": A Certificateholder.
"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.
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"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, any Controlling Class
Certificateholder, each Companion Loan Noteholder 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, any Controlling Class
Certificateholder, either Companion Loan Noteholder or any Affiliate thereof,
and (iii) is not connected with the Depositor, either Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any Controlling Class Certificateholder,
either Companion Loan Noteholder 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, a Controlling Class Certificateholder, a Companion Loan
Noteholder 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, a
Mortgage Loan Seller, the Master Servicer, the Special Servicer, a Controlling
Class Certificateholder, a Companion Loan Noteholder 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 (and, if a Loan Pair is affected, to the related Companion Loan
Noteholder)), 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 (and, if a Loan
Pair is affected, the related Companion Loan Noteholder) 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.
"Insurance Policy": With respect to any Mortgage Loan or Companion
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 Companion Loan, as the case may be, or the related Mortgaged
Property.
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"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 Companion 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, the Trustee, the Fiscal Agent, 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 1999-C2,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2".
"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 the related Mortgage Rate on the related Stated
Principal 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 Mortgage Loan (or successor REO Loan)
that accrues interest on an Actual/360 Basis.
"Investment Account": As defined in Section 3.06(a).
"Late Collections": With respect to any Mortgage Loan or Companion
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 or Companion Loan, as the case
may
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be, 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, other than Default
Interest, 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 Companion 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/Depositor Mortgage Loan Purchase Agreement": That certain
Mortgage Loan Purchase Agreement dated as of September 29, 1999, 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 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).
"Liquidation Event": With respect to any Mortgage Loan or Companion
Loan, any of the following events: (i) such Mortgage Loan or Companion Loan, as
the case may be, is paid in full; (ii) a Final Recovery Determination is made
with respect to such Mortgage Loan or Companion Loan, as the case may be; (iii)
such Mortgage Loan is repurchased by the Depositor pursuant to Section 2.03;
(iv) such Mortgage Loan is purchased by a 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 a Controlling Class Certificateholder
pursuant to Section 9.01; or (v) in the case of each of the SunAmerica Mortgage
Loan and the Century City Mortgage Loan, such Mortgage Loan is purchased by or
through the related Companion Loan Noteholder pursuant to the related Co-Lender
and Servicing Agreement. 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 a
Controlling Class Certificateholder pursuant to Section 9.01.
"Liquidation Fee": With respect to each Specially Serviced Loan or
REO Property (other than any Specially Serviced 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 a Controlling Class
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Certificateholder pursuant to Section 3.18(b), (iii) purchased by the Master
Servicer or the Special Servicer pursuant to Section 3.18(c), (iv) purchased by
the Depositor, the Master Servicer, the Special Servicer, the Underwriter or a
Controlling Class Certificateholder pursuant to Section 9.01, or (v) purchased
by or through the related Companion Loan Noteholder pursuant to the related
Co-Lender and Servicing Agreement), 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 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 full or
partial liquidation of a Mortgaged Property or other collateral constituting
security for a defaulted Mortgage Loan or Companion 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 a 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; (vi) the purchase of a Mortgage Loan or REO Property
by the Depositor, the Master Servicer, the Special Servicer, the Underwriter or
a Controlling Class Certificateholder pursuant to Section 9.01; or (vii) in the
case of each of the SunAmerica Loan and the Century City Mortgage Loan, the
purchase of such Mortgage Loan by or through the related Companion Loan
Noteholder pursuant to the related Co-Lender and Servicing Agreement.
"Loan Pair": Either the SunAmerica Loan Pair or the Century City
Loan Pair.
"Loan Pair Remittance Date": Either of the Century City Remittance
Date or the SunAmerica Remittance Date.
"Loan Payoff Notification Report": A report containing substantially
the information described in Exhibit V attached hereto, and setting forth for
each Mortgage Loan and Companion Loan as to which written notice of anticipated
payoff has been received as of the Determination Date occurring at least two (2)
Business Days prior to the delivery 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 the Yield Maintenance
Charge or Prepayment Premium due.
"Lockout Period": With respect to any Mortgage Loan or Companion
Loan that prohibits the Mortgagor from prepaying such loan until a date
specified in the related Mortgage Note or other loan document, the period from
the Closing Date until such specified date.
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"LUBS": LUBS Inc. or its successor in interest.
"LUBS/Depositor Mortgage Loan Purchase Agreement": That certain
Mortgage Loan Purchase Agreement dated as of September 29, 1999, between LUBS
and the Depositor.
"Maintenance Right": With respect to any Credit Lease, any
termination and abatement rights of the related Tenant arising from a
Mortgagor's default under such Credit Lease in performing obligations such as
required maintenance, repairs and replacements for the related Mortgaged
Property.
"Master Servicer": First Union, 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,
Companion 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 (or
successor REO Loan), the rate per annum designated as the "Master Servicing Fee
Rate" with respect to such Mortgage Loan on the Mortgage Loan Schedule. With
respect to any Companion Loan (or successor REO Loan), 0.10% per annum.
"Monthly Payment": With respect to any Mortgage Loan or Companion
Loan as of any Due Date, the scheduled monthly payment (or, in the case of an
ARD Mortgage Loan or a Companion Loan after its Anticipated Repayment Date, the
minimum required monthly payment) of principal and/or interest on such Mortgage
Loan or Companion Loan, as the case may be, 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 Mortgage Loan or Companion Loan shall not include
Default Interest; and provided, further, that the Monthly Payment due in respect
of any ARD Mortgage Loan or Companion 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 or Companion Loan, the
mortgage, deed of trust, deed to secure debt or similar instrument that secures
the related Mortgage Note and creates a lien on the related Mortgaged Property.
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"Mortgage File": With respect to any Mortgage Loan and any related
Companion Loan, collectively, the following documents:
(i) (A) the original executed Mortgage Note for such Mortgage Loan,
endorsed (without recourse, representation or warranty, express or
implied) to the order of LaSalle Bank National Association, as trustee for
the registered holders of LB Commercial Mortgage Trust 1999-C2, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2 or in blank, and
further showing a complete, unbroken chain of endorsement from the
originator (if such originator is other than the related 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, and (B) a copy of the executed Mortgage Note for any such
Companion Loan;
(ii) an original or copy of the Mortgage, together with originals or
copies of 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
originals or copies of 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 and (b) any related Assignment of Leases (if such item is a
document separate from the Mortgage), in favor of LaSalle Bank National
Association, in its capacity as trustee for the registered holders of LB
Commercial Mortgage Trust 1999-C2, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2, and, in the case of each of the Century City
Loan Pair and the SunAmerica Loan Pair, in its capacity as lead lender on
behalf of the related Companion Loan Noteholder;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan, in favor of LaSalle Bank National Association, as
trustee for the registered holders of LB Commercial Mortgage Trust
1999-C2, Commercial Mortgage Pass-Through Certificates, Series 1999-C2,
and, in the case of each of the Century City Loan Pair and the SunAmerica
Loan Pair, in its capacity as lead lender on behalf of the related
Companion Loan Noteholder;
(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 in connection with 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
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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 Bank
National Association, in its capacity as trustee for the registered
holders of LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, and, in the case of each of the
Century City Loan Pair and the SunAmerica Loan Pair, in its capacity as
lead lender on behalf of the related Companion Loan Noteholder;
(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;
(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;
(xiii) if such Mortgage Loan is a Credit Lease Loan and a Balloon
Loan, an original or copy of the Residual Value Insurance Policy;
(xiv) any environmental indemnity from the related Mortgagor;
(xv) an original or copy of any related security agreement (if such
item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof; and
(xvi) an original assignment of any related security agreement (if
such item is a document separate from the Mortgage and if such item is not
included in the assignment described in clause (v)), in favor of LaSalle
Bank National Association, in its capacity as trustee for the registered
holders of LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, and, in the case of each of the
Century City Loan Pair and the SunAmerica Loan Pair, in its capacity as
lead lender on behalf of the related Companion Loan Noteholder;
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)-(xvi) of this definition, shall be deemed to include such
documents only to the extent the Trustee or Custodian has actual knowledge of
their existence.
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"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
Schedule I (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;
(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 Mortgage Loan and, if so,
the Anticipated Repayment Date and Additional Interest Rate;
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(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 and the Cross-Collateralized Group to which it belongs;
(xvii) whether the Mortgage Loan provides for a lockbox and the type
of lockbox; and
(xviii) if the Mortgage Loan is a Credit Lease Loan, whether there is
a Lease Enhancement Policy or Residual Value Insurance Policy
in effect.
"Mortgage Loan Sellers": LBHI and LUBS.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or a Companion 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. The Mortgage Pool does not include the Companion Loans or
any REO Loans related thereto.
"Mortgage Pool Data Update Report": With respect to any Distribution
Date, a report (which may be included as part of the Distribution Date
Statement), prepared by the Trustee, containing information regarding the
Mortgage Loans and the Companion Loans as of the end of their respective
Collection Periods, which report shall contain substantially the categories of
information regarding the Mortgage Loans and the Companion Loans set forth on
Annexes A-1 and A-2 to the Prospectus Supplement (calculated, where applicable,
on the basis of the most recent relevant information provided by the Mortgagors
to the Master Servicer or the Special Servicer, as the case may be, and by the
Master Servicer or the Special Servicer, as the case may be, to the Trustee),
which information shall be presented in tabular format substantially similar to
the format utilized on such annexes and shall also include a loan-by-loan
listing (in descending balance order) showing loan number, property type,
location, unpaid principal balance, Mortgage Rate, paid-through date, maturity
date, gross interest portion of the Monthly Payment, principal portion of the
Monthly Payment, and any Prepayment Premium or Yield Maintenance Charge
received.
"Mortgage Rate": With respect to any Mortgage Loan or Companion Loan
(and, in either case, any successor REO Loan), the annualized rate at which
interest is scheduled (in the absence of a default) to accrue on such Mortgage
Loan or Companion Loan, as the case may be, 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
Mortgage Loan and Companion Loan, the related Mortgage Rate shall increase in
accordance with the related Mortgage Note if the particular Mortgage Loan or
Companion Loan, as the case may be, is not paid in full by its Anticipated
Repayment Date.
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"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
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 Loans,
but excluding Companion 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 Mortgage Loan after its
Anticipated Repayment Date, the related Additional Interest Rate.
"Net Prepayment Consideration": The Prepayment Consideration
received with respect to any Mortgage Loan, net of any Workout Fee or
Liquidation Fee payable therefrom.
"NOI Adjustment Worksheet": A report prepared by the Special
Servicer with respect to Specially Serviced Loans and REO Loans, and by the
Master Servicer with respect to all other Mortgage Loans and Companion 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.
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"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of any Mortgage Loan, Companion Loan or REO Loan
by the Master Servicer, the Trustee or the Fiscal Agent, which P&I Advance 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,
Companion Loan or REO Loan, as the case may be.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan, Companion Loan or REO
Property by the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, which Servicing Advance 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, Companion Loan or REO Property, as the case may be.
"Non-Registered Certificate": Any Certificate that has not been
registered under the Securities Act. As of the Closing Date, the Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class P, 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.
"Officer's 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.
"Operating Statement Analysis Report": With respect to each
Specially Serviced Loan and REO Property, a report prepared by the Special
Servicer, and with respect to all other Mortgage Loans and Companion 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, the Special Servicer
and either Companion Loan Noteholder) acceptable to and delivered to the Trustee
or any other specified Person, as the case may be.
"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 $892,435,593.
"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.
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"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 Certificates for any Distribution Date, 7.105% per
annum;
(ii) the Class A-2 Certificates for any Distribution Date, 7.325%
per annum;
(iii) the Class B Certificates for any Distribution Date, 7.425% per
annum;
(iv) the Class C Certificates for any Distribution Date, 7.470% per
annum;
(v) the Class D Certificates for any Distribution Date, 7.470% per
annum;
(vi) the Class E Certificates for any Distribution Date, 7.470% per
annum;
(vii) the Class F Certificates for any Distribution Date, 7.470% per
annum;
(viii) the Class G Certificates for any Distribution Date, 6.720%
per annum;
(ix) the Class H Certificates for any Distribution Date, 6.720% per
annum;
(x) the Class J Certificates for any Distribution Date, 6.720% per
annum;
(xi) the Class K Certificates for any Distribution Date, 6.720% per
annum;
(xii) the Class L Certificates for any Distribution Date, 6.720% per
annum;
(xiii) the Class M Certificates for any Distribution Date, 6.720%
per annum;
(xiv) the Class N Certificates for any Distribution Date, 6.720% per
annum;
(xv) the Class P Certificates for any Distribution Date, 6.720% 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, when preceded by "X-", is the same as the alphabetical (and,
if applicable, numerical) 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
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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 Encumbrances": As defined in Section 2.04(b).
"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 DCR (if then rated by DCR, and if
not then rated by DCR, then an equivalent rating by at least one
additional nationally recognized statistical rating agency besides
Moody's) (or, in the case of either Rating Agency, so long as the
investment is not being made with funds in an account that relates solely
to the Century City Loan Pair or the SunAmerica Loan Pair, such lower
rating as will not result in an Adverse Rating Event, 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;
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(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 DCR (if then rated by
DCR, and if not then rated by DCR, then an equivalent rating by at least
one nationally recognized statistical rating agency besides Moody's) (or,
in the case of either Rating Agency, so long as the investment is not
being made with funds in an account that relates solely to the Century
City Loan Pair or the SunAmerica Loan Pair, such lower rating as will not
result in an Adverse Rating Event, 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 DCR (if then rated by DCR, and if not then rated by DCR, then
an equivalent rating by at least one nationally recognized statistical
rating agency besides Moody's) (or, in the case of either Rating Agency,
so long as the investment is not being made with funds in an account that
relates solely to the Century City Loan Pair or the SunAmerica Loan Pair,
such lower rating as will not result in an Adverse Rating Event, 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 in the highest applicable
rating category of each of Moody's and DCR (or, in the case of either
Rating Agency, so long as the investment is not being made with funds in
an account that relates solely to the Century City Loan Pair or the
SunAmerica Loan Pair, such lower rating as will not result in an Adverse
Rating Event, 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;
provided that if a Transferee is classified as a partnership under the Code,
such Transferee shall only be a Permitted Transferee if all of its beneficial
owners are United States Persons.
"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, Companion Loan or REO Loan,
any advance made by the Master Servicer, the Trustee or the Fiscal Agent
pursuant to Section 4.03 or Section 4.03A, as applicable.
"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.
"Pool 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 the Certificateholders, which shall be entitled "[NAME
OF MASTER SERVICER], as Master Servicer, in trust for the registered holders of
LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2".
"Pool 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 1999-C2, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2".
"Pool Reserve Account": As defined in Section 3.03(f).
"Pool Servicing Account": As defined in Section 3.03(a).
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"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 Mortgage Loan is repaid on
its Anticipated Repayment Date.
"Prepayment Consideration": Any Prepayment Premium or Yield
Maintenance Charge.
"Prepayment Consideration Entitlement": With respect to (i) any
Distribution Date on which any Net Prepayment Consideration collected on any
Mortgage Loan (or successor REO Loan) is distributable and (ii) any Class of
Principal Balance Certificates (other than any Excluded Class) entitled to
distributions of principal on such Distribution Date, an amount equal to the
product of (a) such Net Prepayment Consideration, multiplied by (b) 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 for such Class of Principal Balance
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, and further multiplied by (c) a fraction,
the numerator of which is equal to the amount of principal distributable to such
Class of Principal Balance Certificates on such Distribution Date pursuant to
Section 4.01(a), 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 or
Companion 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 Mortgage Loan or a Companion Loan after its Anticipated
Repayment Date, further exclusive of any Additional Interest).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
or Companion 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 Mortgage Rate
(net of the related Master Servicing Fee Rate) on the 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.
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"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 NC 1075, 8739
Research Drive, URP-4, Charlotte, North Carolina 28288-1075, and the Primary
Servicing Office of the Special Servicer is located at 1717 Main Street, 12th
Floor, Dallas, Texas 75201.
"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, the Special Servicer and
each Companion Loan Noteholder 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;
(d) the aggregate of all Liquidation Proceeds and Insurance Proceeds
received on any 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;
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(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;
provided that none of the amounts set forth in clauses (a) to (f) above shall
represent amounts received, due or advanced on or in respect of the Companion
Loans or any related REO Loans.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan or Companion 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 May 26, 1999, as supplemented by
the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The prospectus supplement dated September
29, 1999, 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 Mortgage 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; provided that, in the case of
the SunAmerica Mortgage Loan and the Century City Mortgage Loan, the Purchase
Price calculated above shall be reduced by any related unpaid Master Servicing
fees, unreimbursed Advances and, to the extent included therein pursuant to
clause (d) above, unpaid interest on Advances which, following the subject
purchase, will continue to be payable or reimbursable under the related
Co-Lender and Servicing Agreement to the Master Servicer and/or the Special
Servicer in respect of such Mortgage Loan; and provided, further, that, in the
case of an REO Property that relates to the SunAmerica Mortgage Loan or the
Century City Mortgage Loan, the Purchase Price shall instead equal the greater
of (x) the fair market value of such REO Property, based on a recent appraisal
meeting the criteria for a Required Appraisal, and (y) the
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aggregate of the amounts described in clauses (a), (b), (c) and, if applicable,
(d) above with respect to both REO Loans comprising the applicable Loan Pair.
"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
2032.
"Rated Party": With respect to any Credit Lease, 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 "BBB" (or the equivalent) by
Moody's or S&P, which Person is identified on the Mortgage Loan Schedule.
"Rating Agency": Each of Moody's and DCR.
"Realized Loss": With respect to: (1) each Mortgage Loan or
Companion 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 the excess, if any, of (a) the sum of (i) the unpaid principal balance of
such Mortgage Loan, Companion 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 (ii) without taking into account the amount described in
subclause (1)(d) of this definition, all accrued but unpaid interest on such
Mortgage Loan, such Companion 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
Mortgage Loan or Companion Loan after its Anticipated Repayment Date, Additional
Interest), over (b) all payments and proceeds, if any, received in respect of
such Mortgage Loan, such Companion Loan or, to the extent allocable to such REO
Loan, the related REO Property, as the case may be, during the Collection Period
in which such Final Recovery Determination was made, insofar as such payments
and proceeds are allocable to interest (other than Default Interest and
Additional Interest) on or principal of such Mortgage Loan, Companion Loan or
REO Loan; (2) each Mortgage Loan or Companion 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 or
Companion Loan, as the case may be, 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 Mortgage Loan or Companion Loan
after its Anticipated Repayment Date, Additional Interest) so canceled; and (3)
each Mortgage Loan or Companion 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 or Companion Loan, as
the case may be, 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
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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).
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificate": Any Certificate that has been registered
under the Securities Act. As of the Closing Date, the Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F 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) or
Section 4.03A(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 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 Mortgage
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 Pool
Custodial Account, the Collection Account, the Interest Reserve Account and, if
established, the Pool REO Account, exclusive of any amounts that represent
Additional Interest collected in respect of the ARD Mortgage Loans after their
respective Anticipated Repayment Dates. REMIC I shall not include the Companion
Loans or any payments or other collections of principal or interest thereon.
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"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.
"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
a 30/360 Basis, the Net Mortgage Rate in effect for the related Mortgage Loan as
of the Closing Date (without regard to any subsequent modifications, waivers or
amendments of such Mortgage Loan); and (b) if, based on the terms thereof in
effect as of the Closing Date, the related Mortgage Loan did not accrue interest
on a 30/360 Basis, a rate per annum equal to (i) a fraction (expressed as a
percentage), the numerator of which is (subject to adjustments as provided
below) 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 (without
regard to any subsequent modifications, waivers or amendments of such Mortgage
Loan) 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 related 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
related 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.
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"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.
"REMIC III Certificate": Any Class A-1, Class A-2, Class X, 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 P 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.
"REO Account": Any of the Pool REO Account, the Century City REO
Account or the SunAmerica REO Account.
"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 (or, if a Loan Pair is involved,
either of the two mortgage loans) 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 or Companion Loan (such terms and conditions to be applied without
regard to the default on such predecessor Mortgage Loan or Companion 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 or Companion 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 or Companion 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 Mortgage
Loan after its Anticipated Repayment Date, of any such accrued and unpaid
interest that constitutes Additional Interest); 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
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owing in respect of such REO Loan; provided, however, that if a Loan Pair become
REO Loans, collections in respect of such REO Loans shall be applied to amounts
due and owing in respect of such REO Loans as provided in Section 4.01 of the
related Co-Lender and Servicing Agreement. 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 or
Companion 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),
4.03(d) and 4.03A(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) and Section 3.05A(a).
"REO Property": A Mortgaged Property acquired on behalf and in the
name of the Trustee for the benefit of the Certificateholders and, in the case
of the Century City Mortgaged Property or the SunAmerica Mortgaged Property,
also for the benefit of the related Companion Loan Noteholder, as their
interests may appear, 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 and/or for a Companion 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 occurring at least two (2) Business Days
prior to the delivery 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 of,
as applicable, the Master Servicer in the form of Exhibit D-1 attached hereto or
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 or, in the
case of a Required Appraisal Loan having a Stated Principal Balance of less than
$1,000,000, a "desktop" value estimate performed by the Special Servicer.
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"Required Appraisal Loan": Any Mortgage Loan or Loan Pair (i) that
is sixty (60) days or more delinquent in respect of any Monthly Payment, (ii)
with respect to which the related Mortgaged Property has become an REO Property,
(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 scheduled maturity date (as such date may have been
extended). Any Required Appraisal Loan shall cease to be such at such time as it
has become a Corrected Loan, it has remained current for at least three (3)
consecutive Monthly Payments, and no other Servicing Transfer Event has occurred
with respect thereto during the preceding three-month period. For purposes of
this Agreement, (i) the SunAmerica Mortgage Loan and the SunAmerica Companion
Loan shall, upon the occurrence of any of the events described in clauses (i) -
(vi) of this definition, be deemed to be a single "Required Appraisal Loan", and
(ii) the Century City Mortgage Loan and the Century City Companion Loan shall,
upon the occurrence of any of the events described in clauses (i) - (vi) of this
definition, be deemed to be a single "Required Appraisal Loan".
"Required Appraisal Value": With respect to any Mortgaged Property
securing (or REO Property relating to) 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 (or REO 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 monthly 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": Any of the Pool Reserve Account, Century City
Reserve Account or SunAmerica Reserve Account.
"Reserve Funds": With respect to any Mortgage Loan or Companion
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.
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"Responsible Officer": When used with respect to the Trustee, 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 thereof.
"Restricted Servicer Reports": Each of the Servicer Watch List,
Operating Statement Analysis Report, NOI Adjustment Worksheet and Comparative
Financial Status Report.
"Review Package": A package of documents consisting of a memorandum
outlining the analysis and recommendation (in accordance with the Servicing
Standard) of the Master Servicer or the Special Servicer, as the case may be,
with respect to the matters subject thereof, and copies of all relevant
documentation.
"S&P": Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc., or any successor in interest.
"SASCO": Structured Asset Securities Corporation, or any successor
in interest.
"Scheduled Payment": With respect to any Mortgage Loan or Companion
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 or Companion 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, Class A-2 or Class X
Certificate.
"Servicer Fee Amount": With respect to each Sub-Servicer, as of any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan and Companion Loan serviced by such Sub-Servicer, (a) the
principal balance of such Mortgage Loan or Companion Loan, as the case may be,
as of the end of the immediately preceding Collection Period and (b) the
servicing fee rate specified in the related Sub-Servicing Agreement for such
Mortgage Loan or Companion Loan, as the case may be. With respect to the Master
Servicer, as of any date of determination, the aggregate of the products
obtained by multiplying, for each Mortgage Loan and Companion Loan, (a) the
principal balance of such Mortgage Loan or Companion Loan, as the case may be,
as of the end of the immediately preceding Collection Period and (b) the
difference between the Master Servicing Fee Rate for such Mortgage Loan or
Companion Loan, as the case may be, over the sub-servicing fee rate (if any)
applicable to such Mortgage Loan or
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Companion Loan, as the case may be, as specified in any Sub-Servicing Agreement
related to such Mortgage Loan.
"Servicer Watch List": A report, substantially in the form of
Exhibit P attached hereto, identifying (as of the Determination Date occurring
at least two Business Days prior to the delivery of such report) each Mortgage
Loan and Companion Loan that is not a Specially Serviced 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 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 (with no replacement tenant having occupied or reasonably
expected, within the next 45 days, to occupy the space on comparable terms),
(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, (x) that is 30 or more days delinquent, (xi) to the extent
the Master Servicer has actual knowledge thereof, with respect to which a tenant
or tenants occupying 20% or more of the gross leasable area of the related
Mortgaged Property are involved in bankruptcy or insolvency proceedings or have
vacated such Mortgaged Property (with no replacement tenant having occupied the
space on comparable terms) or (xii) in respect of which an inspection carried
out pursuant to Section 3.12(a) revealed a problem reasonably expected to
adversely affect the cash flow of the related Mortgaged Property.
"Servicing Account": Any of the Pool Servicing Account, the Century
City Servicing Account or the SunAmerica Servicing Account.
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and fees and expenses
of real estate brokers) incurred by the Master Servicer, the Special Servicer,
the Fiscal Agent or the Trustee in connection with the servicing of a Mortgage
Loan or Companion Loan, if a default is imminent thereunder or a default,
delinquency or other unanticipated event has occurred with respect thereto, 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, (f) the operation, management,
maintenance and liquidation of any REO Property, (g) obtaining any related
ratings confirmation, and (h) compliance with the obligations of the Master
Servicer set forth in Section 3.26 to the extent that the related Reserve Funds
or excess cash flow after scheduled debt service on the related Mortgage Loan
are insufficient, and the payment of which is necessary to avoid a Tenant
exercising a Maintenance Right or Additional Right; 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
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and similar internal costs and expenses, or costs and expenses incurred by any
such party in connection with its purchase of any Mortgage Loan, Companion Loan
or REO Property pursuant to any provision of this Agreement or a Co-Lender and
Servicing Agreement.
"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 or Companion 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 and the Companion 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-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, to service and administer the Mortgage Loans, the Companion
Loans and any REO Properties 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 mortgage lenders) or on behalf of itself,
whichever is higher, in any event with respect to mortgage loans comparable to
such Mortgage Loans and Companion Loans and real properties comparable to such
REO Properties; (ii) with a view to the timely collection of all scheduled
payments of principal and interest under the Mortgage Loans and the Companion
Loans or, in the case of the Special Servicer, if a Mortgage Loan or a Companion
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, with a view to the maximization of
the recovery on such Mortgage Loan to the Certificateholders (as a collective
whole) (or, if a Loan Pair is involved, with a view to the maximization of the
recovery on such Loan Pair to the Certificateholders and the related Companion
Loan Noteholder (as a collective whole)), on a present value basis (the relevant
discounting of anticipated collections that will be distributable to the
Certificateholders (or, in the case of a Loan Pair, to the Certificateholders
and the related Companion Loan Noteholder) to be performed at the related
Mortgage Rate (or, in the case of a Loan Pair, at the weighted average of the
Mortgage Rates for such Loan Pair)); 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 Mortgagor; (B) the
ownership of any Certificate (or any security backed by a Companion Loan) 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
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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 or
otherwise serviced and administered pursuant to this Agreement.
"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 Loan".
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Interest Certificates evidencing a $1,000
denomination.
"Single Purpose Entity": For the purposes hereof, an entity, other
than an individual, whose organizational documents provide substantially to the
effect that it was formed or organized solely for the purpose of either owning
and operating the Mortgaged Property or Properties securing one or more Mortgage
Loans and/or Companion Loans, or owning and pledging Defeasance Collateral in
connection with the defeasance of a Defeasance Loan, as the case may be, and
prohibit it from engaging in any business unrelated to such Mortgaged Property
or Properties or such Defeasance Collateral, as the case may be, and whose
organizational documents further provide substantially to the effect that it
does not have any assets other than those related to its interest in and
operation of such Mortgaged Property or such Defeasance Collateral, as the case
may be, or any indebtedness other than incidental to its ownership and operation
of the applicable Mortgaged Property or Properties or Defeasance Collateral, as
the case may be, that it has its own books and records and accounts separate and
apart from any other Person, that it holds itself out as a legal entity,
separate and apart from any other Person, and, in the case of such an entity
whose sole purpose is owning or operating a Mortgaged Property, that has an
independent director or, if such entity is a partnership or a limited liability
company, at least one general partner or limited liability company member
thereof, as applicable, which shall itself be a "single purpose entity" (having
as its sole asset its interest in the Single Purpose Entity) with an independent
director.
"Special Servicer": ORIX Real Estate Capital Markets, LLC 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
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 Loan and each REO Loan, 0.25% per annum.
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"Specially Serviced Loan": Any Mortgage Loan or Companion Loan as to
which any of the following events has occurred:
(a) the related Mortgagor shall have failed to make any Monthly
Payment on such Mortgage Loan or Companion Loan, as the case may be (or,
if a Loan Pair is involved, on the other loan in that Loan Pair) and such
failure has continued unremedied (without regard to any grace period) for
60 days; 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 on such Mortgage Loan or
Companion Loan, as the case may be (or, if a Loan Pair is involved, on the
other loan in that Loan Pair) is likely to occur within 30 days and is
likely to remain unremedied (without regard to any grace period) for at
least 60 days; or
(c) there shall have occurred a default (other than as described in
clause (a) above) on such Mortgage Loan or Companion Loan, as the case may
be (or, if a Loan Pair is involved, on the other loan in that Loan Pair),
and such default materially impairs the value of the Mortgaged Property as
security for such Mortgage Loan or Companion Loan, as the case may be, or
otherwise materially adversely affects the interests of Certificateholders
(or, in the case of a Companion Loan, the related Companion Loan
Noteholder) and that continues unremedied for the applicable grace period
under the terms of such Mortgage Loan or Companion Loan, as the case may
be (or, if no grace period is specified, for 30 days), other than a
default specified in the third paragraph of Section 3.26, so long as the
conditions therein are met (provided that any default requiring a
Servicing Advance shall be deemed to materially and adversely affect the
interests of Certificateholders or, in the case of a Companion Loan, the
related Companion Loan Noteholder); 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 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 and not dismissed 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
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(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 or Companion Loan will cease to be a
Specially Serviced Loan when a Liquidation Event has occurred with respect to
such Mortgage Loan or Companion Loan, as the case may be, 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 or Companion Loan to continue to be characterized as a
Specially Serviced 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
(z) with respect to the circumstances described in clause (g)
above, such proceedings are terminated.
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 or Companion Loan becoming a Specially Serviced 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 or
Companion Loan, the Due Date specified in the related Mortgage Note (as in
effect on the Closing Date) on which the last payment of principal is due and
payable under the terms of such 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 Mortgage Loan, without regard to its Anticipated Repayment Date.
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"Stated Principal Balance": With respect to any Mortgage Loan or
Companion Loan (and, in either case, any successor REO Loan with respect
thereto), the Cut-off Date Balance of such Mortgage Loan or Companion 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 any successor REO Loan with respect
thereto) or, if it had been a Mortgage Loan in the Trust Fund, that would have
been allocable to such Companion Loan (or any successor REO Loan with respect
thereto), as the case may be, and (ii) the principal portion of any Realized
Loss incurred in respect of such Mortgage Loan or Companion Loan (or, in either
case, any such successor REO Loan with respect thereto) during the related
Collection Period. Notwithstanding the foregoing, if a Liquidation Event occurs
in respect of any Mortgage Loan, Companion Loan or REO Property, then the
"Stated Principal Balance" of such Mortgage Loan, of such Companion 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 P,
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.
"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.
"Successful Bidder": As defined in Section 7.01(c).
"SunAmerica Co-Lender and Servicing Agreement": The Co-Lender and
Servicing Agreement, dated as of September 28, 1999, among LBHI as holder of the
Mortgage Note for the SunAmerica Mortgage Loan, the SunAmerica Trustee as holder
of the Mortgage Note for the SunAmerica Companion Loan, First Union as master
servicer, and LaSalle as custodian.
"SunAmerica Companion Loan": As defined in the Preliminary
Statement.
"SunAmerica Custodial Account": A segregated account or accounts
created and maintained by the Special Servicer pursuant to Section 3.04A on
behalf of the SunAmerica Noteholders, which shall be entitled "[NAME OF SPECIAL
SERVICER], as Special Servicer, in trust for [NAMES OF SUNAMERICA NOTEHOLDERS]
as their interests may appear".
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"SunAmerica Fiscal Agent": ABN AMRO Bank N.V. or any successor in
interest, in its capacity as fiscal agent under that certain Trust Agreement,
dated as of September 28, 1999, among SASCO, the SunAmerica Trustee and the
SunAmerica Fiscal Agent.
"SunAmerica Loan Pair": Collectively, the SunAmerica Mortgage Loan
and the SunAmerica Companion Loan (and any successor REO Loans).
"SunAmerica Mortgaged Property": The Mortgaged Property securing the
SunAmerica Loan Pair.
"SunAmerica Mortgage Loan": As defined in the Preliminary Statement.
The SunAmerica Mortgage Loan is identified by control number 1 on the Mortgage
Loan Schedule.
"SunAmerica Noteholders": Collectively, the holder of the Mortgage
Note for the SunAmerica Mortgage Loan and the holder of the Mortgage Note for
the SunAmerica Companion Loan.
"SunAmerica REO Account": A segregated account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
SunAmerica Noteholders, which shall be entitled "[NAME OF SPECIAL SERVICER], as
Special Servicer, in trust for [NAMES OF SUNAMERICA NOTEHOLDERS], as their
interests may appear".
"SunAmerica Remittance Date": The "Remittance Date" under the
SunAmerica Co- Lender and Servicing Agreement.
"SunAmerica Reserve Account": As defined in Section 3.03(f).
"SunAmerica Servicing Account": As defined in Section 3.03(a).
"SunAmerica Trustee": As defined in the Preliminary Statement.
"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
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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.
"Transaction Documents": Collectively, the following documents: (i)
this Agreement; (ii) the Mortgage Loan Purchase Agreements; (iii) the
Underwriting Agreement dated as of September 29, 1999, between the Depositor and
the Underwriter; and (iv) the Depositor's organizational documents.
"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).
"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 Bank National Association, 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": 0.0031% per annum.
"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 UCC.
"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
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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 a 30/360 Basis.
"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 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
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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 (or to the extent provided in the Treasury
regulations, if the trust was in existence on August 20, 1996 and elected to be
treated as a United States person), 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 Liquidation Report, REO
Status Report and Loan Payoff Notification Report.
"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.
"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 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 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 or Companion 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 or Companion Loan, as the case may be) 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 or
Companion 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
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be required to use those U.S. Treasuries which shall generate the lowest
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 Companion 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 5.44%.
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 "LB Commercial Mortgage Trust 1999-C2". LaSalle Bank National
Association 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 and, in the case of the
Century City Mortgage Loan and the SunAmerica Mortgage Loan, is subject to the
provisions of the related Co-Lender and Servicing Agreement. 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).
(c) The Trustee shall, as to each Mortgage Loan, promptly (and in
any event within 45 days following the later of the 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 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 and assignment of Assignment of Leases, 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
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original assignment of Mortgage or assignment of Assignment of Leases the
Trustee shall obtain therefrom a certified copy of the recorded original. On a
monthly basis, the Trustee shall forward to the Master Servicer a copy of each
of the aforementioned assignments 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 (and, in the case
of each Companion Loan, on behalf of and for the benefit of the related
Companion Loan Noteholder).
(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.
To the extent that the Mortgage File for either the SunAmerica Mortgage Loan or
the Century City Mortgage Loan relates to the corresponding Companion Loan, the
Trustee shall also hold such Mortgage File in trust for the use and benefit of
the related Companion Loan Noteholder. In connection with the foregoing, the
Trustee hereby certifies to each of the other parties hereto, each Mortgage Loan
Seller, the Underwriter and, in the case of each Companion Loan, to the related
Companion Loan Noteholder that, as to each Mortgage Loan and Companion Loan,
except as specifically identified in the Schedule of Exceptions to Mortgage File
Delivery attached hereto as Schedule II, (i) all documents specified in clause
(i) of the definition of "Mortgage File" are in its possession or the possession
of a Custodian on its behalf, and (ii) the Mortgage Note (or copy thereof)
received by it or any Custodian with respect to such Mortgage Loan or Companion
Loan, as the case may be, has 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)
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appears to have been executed (where appropriate) and (C) purports to relate to
such Mortgage Loan or Companion Loan, as the case may be.
(b) On or about the 90th day following the Closing Date (and, if any
exceptions are noted, again on or about the 180th day following the Closing Date
and every 90 days thereafter until the earliest of (i) the second anniversary of
the Closing Date, (ii) the day on which all material exceptions have been
removed and (iii) the day on which the Depositor has repurchased the last
affected Mortgage Loan), 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 substantially in the form of Exhibit C hereto (with a
copy to the Controlling Class Certificateholders) 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) (without regard to the second
parenthetical in such clause (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. If
the Trustee's obligation to deliver the certifications contemplated in this
subsection terminates because two years have elapsed since the Closing Date, the
Trustee shall deliver a comparable certification to any party hereto, the
Controlling Class Representative and the Underwriter on request.
The Trustee shall also prepare, within the time periods set forth
above, comparable certifications to those set forth in the preceding paragraph
with respect to each of the Century City Loan Pair and the SunAmerica Loan Pair
and shall deliver each such certification to the related Companion Loan
Noteholder.
(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.
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(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.
(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; provided, that, without
limiting any of the foregoing, the absence of an original Mortgage Note, an
original or a copy of a Mortgage or an original or a copy of a title insurance
policy from a Mortgage File or any material nonconformity to the Mortgage Loan
Schedule of any such document or any material irregularity on the face thereof
(without the presence of any factor, such as a lost note affidavit with an
indemnity in the case of a missing Mortgage Note, that reasonably mitigates such
absence, non-conformity or irregularity) shall be a Document Defect that
materially and adversely affects the interests of the Certificateholders in, or
the value of, any Mortgage Loan, and shall obligate the party discovering such
to give the prompt notice contemplated in the preceding clause, whereupon the
Trustee shall notify the Depositor to cure such Document Defect or, failing
that, repurchase the related Mortgage Loan. 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
Pool Custodial Account (or, in the case of an REO Property that relates to the
SunAmerica Mortgage Loan or the Century City Mortgage Loan, in the SunAmerica
REO Account or the Century City REO Account, as the case may be); provided,
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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 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, and subject to Section 3.28, 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.
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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.
(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
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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.
(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
such Mortgage Loan and is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan; 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; and the Depositor has validly conveyed to the Trustee a
legal and beneficial interest in and to the Mortgage Loans free and clear
of any lien, claim or encumbrance of any nature.
(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
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(regardless of whether such enforcement is considered in a proceeding in
equity or at law), 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 or, if such Mortgage
Loan is the Century City Mortgage Loan or the SunAmerica Mortgage Loan, as
of the date of the execution of the related Mortgage Note, 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; and, to the knowledge of the Depositor,
no such claim has been asserted.
(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
their respective 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 and all buildings thereon and
fixtures thereto, 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 30 days' delinquent, (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
(if any) of such Mortgaged Property made in connection with the
origination of such Mortgage Loan, and (C) other matters to which like
properties are commonly subject (the exceptions set forth in the foregoing
clauses (A), (B) and (C) collectively, "Permitted Encumbrances"); and such
Permitted Encumbrances do not, individually or in the aggregate,
materially and adversely interfere with the benefits of the security
intended to be provided by such Mortgage, materially and adversely
interfere with the current use or operation of the related Mortgaged
Property 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. If
the related Mortgaged Property is operated as a nursing facility, a
hospitality property or a multifamily property, the related Mortgage,
together with any separate security agreement, chattel mortgage or similar
agreement and UCC financing statement, if any, establishes and creates a
first priority, perfected security interest (subject only to any prior
purchase money security interest), to the extent such security interest
can be perfected by the recordation of a Mortgage or the filing of a UCC
financing statement, in all personal property owned by the Mortgagor that
is used in, and is reasonably necessary to, the operation of the related
Mortgaged Property.
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(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 (such
description being consistent with the practices of prudent commercial
mortgage lenders), 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, the Mortgage Loan Seller 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
Cut-off Date, to the actual knowledge of the Depositor, there was no
pending 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 issued by a nationally
recognized title insurance company, insuring that each related Mortgage is
a valid first lien on such Mortgaged Property in the original principal
amount of such Mortgage Loan after all advances of principal, subject only
to Permitted Encumbrances (which Permitted Encumbrances do not ,
individually or in the aggregate, materially and adversely interfere with
the benefits of the security intended to be provided by such Mortgage,
materially and adversely interfere with the current use or operation of
the related Mortgaged Property or materially or 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), or there is a binding commitment from a title insurer
qualified and/or licensed in the applicable jurisdiction, as required, to
issue such policy; such title insurance policy, if issued, is in full
force and effect, all premiums have been paid, 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; such policy or commitment
contains no exclusion for (or alternatively insures, unless such coverage
is unavailable in the relevant jurisdiction) (A) access to a public road,
(B) that there is no material encroachment by any improvements on the
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Mortgaged Property, and (C) that the area shown on the survey materially
conforms to the legal description of the Mortgaged Property.
(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 such Mortgage Loan, together
with an "agreed value endorsement"), was in full force and effect with
respect to each related Mortgaged Property; as of the Cut-off 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; no notice of termination or cancellation with
respect to any such insurance policy has been received by the Depositor;
all premiums under any such insurance policy have been paid through the
Cutoff Date; and, 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 or other loan documents relating to such Mortgage
Loan, any insurance proceeds 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 such 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, the related Mortgage or other loan
documents relating to such Mortgage Loan, 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, Mortgage or other loan documents.
(xv) As of the Cut-off Date, such Mortgage Loan is not, and in
the prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within
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the past 12 months), has not been, 30 days or more past due in respect of
any Scheduled Payment.
(xvi) Such Mortgage Loan accrues interest on an Actual/360
Basis or on a 30/360 Basis; and such Mortgage Loan accrues interest
(payable monthly in arrears) at a fixed rate of interest (except with
respect to the ARD Mortgage 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 or other loan document relating
to such Mortgage Loan 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 or, if such Mortgage Loan is the
Century City Mortgage Loan or the SunAmerica Mortgage Loan, the related
Companion Loan).
(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 such 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 such
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 such 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 12-month period (or, if such Mortgage Loan is one of the
Mortgage Loans identified on Schedule III-A, more than 12 months)
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); all such environmental
site assessments met ASTM requirements; and none of the environmental
reports reveal any circumstances or conditions that are in violation of
any applicable environmental laws, or if such report does reveal such
circumstances, then (1) the same have been remediated in all material
respects, (2) sufficient funds have been escrowed for purposes of
effecting such remediation, (3) the related Mortgagor or other responsible
party is currently taking remedial or other appropriate action to address
the environmental issue consistent with the recommendations in such site
assessment, (4) the cost of the
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environmental issue relative to the value of such Mortgaged Property was
de minimis, or (5) environmental insurance has been obtained.
(xxi) The related Mortgage Note, Mortgage(s), Assignment(s) of
Leases and other loan documents securing the Mortgage Loan, 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, and the related
Mortgaged Property is not subject to, 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) Such Mortgage Loan does not provide for negative
amortization unless such Mortgage Loan is an ARD Mortgage Loan, in which
case it may occur only after the Anticipated Repayment Date.
(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 or
Rating Agency confirmation that an Adverse Rating Event would not occur,
any related Mortgaged Property or interest therein, is directly or
indirectly encumbered in connection with subordinate financing; no such
consent has been granted by the Depositor. To the Depositor's knowledge,
no Mortgaged Property is encumbered in connection with subordinate
financing; however, certain members of the Mortgagors listed on Schedule
III-B 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 (which criteria
is consistent with the practices of prudent commercial mortgage lenders),
each related Mortgage contains either (A) provisions for the
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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 (which conditions are consistent with the practices of prudent
commercial mortgage lenders).
(xxviii) Unless such Mortgage Loan is the SunAmerica Mortgage
Loan or the Century City Mortgage 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) Except with respect to the Credit Lease Loans, 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.
(xxxi) The terms of the related Mortgage Note, Mortgage or
other loan document securing the Mortgage Loan 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 such 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), 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
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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 quarterly and/or annual operating statements
and rent rolls of each related Mortgaged Property.
(xxxiv) If such Mortgage Loan has a Cut-off Date Balance in
excess of $15 million, the related Mortgagor has covenanted in its
organizational documents to be a Single Purpose Entity for so long as such
Mortgage Loan is outstanding, and if such Mortgage Loan has a Cut-off Date
Balance less than $15 million, the related Mortgagor has covenanted in its
organizational documents and/or the related Mortgage Loan documents to own
the related Mortgaged Property and no other material assets, except such
as are incidental to the ownership of such Mortgaged Property for so long
as such Mortgage Loan is outstanding.
(xxxv) No advance of funds has been made, directly or
indirectly, by the originator or 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 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 or was exempt from
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 such 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, and no fees and expenses are
payable to such trustee except in connection with a trustee sale of the
Mortgaged Property following a default or in connection with the release
of liens securing such Mortgage Loan.
(xl) Unless such Mortgage Loan is the Century City Mortgage
Loan or the SunAmerica Mortgage Loan, the related Mortgage Note is not
secured by any collateral that secures a mortgage loan that is not in the
Trust Fund; if such Mortgage Loan is cross-collateralized, it is
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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 Credit Lease Loans, 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 12- 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); and, to the extent such
assessments revealed deficiencies, deferred maintenance or similar
conditions, either (A) the estimated cost has been escrowed, (B) repairs
have been made or (C) the scope of the deferred maintenance relative to
the value of such Mortgaged Property was de minimis.
(xliii) All escrow deposits and payments relating to such
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, and to the actual knowledge of the Depositor, as of the date of
origination of such 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.
(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 Schedule III-C, such 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, then, except as indicated on
Schedule III-D:
(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
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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 such 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;
(C) such Ground Lease may not be amended or modified
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 such 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; 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;
(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;
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(H) the mortgagee is permitted a reasonable opportunity
to cure any curable default under such Ground Lease before the
lessor thereunder may terminate or cancel 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) 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 such 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) 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 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;
provided that, in the case of the Mortgage Loan secured by the Mortgaged
Property indentified on the Mortgage Loan Schedule as Riverview Place, as
to which the related Ground Lease is for parking space that is not
required to fulfill zoning requirements, such Ground Lease does not comply
with the representations and warranties made in this paragraph (xlvii).
(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) Each related Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the
related title insurance policy.
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(l) (1) If such Mortgage Loan is a Defeasance Loan, the
related Mortgage Loan documents require the related Mortgagor to pay all
costs associated therewith, and either: (A) require the prior written
consent of, and compliance with the conditions set by, the holder of such
Mortgage Loan for defeasance, (B) require that (1) defeasance may not
occur prior to the second anniversary of the Closing Date, (2) the
Defeasance Collateral be sufficient to make all scheduled payments under
the Mortgage Note when due (assuming for each ARD Mortgage Loan that it
matures on its Anticipated Repayment Date), (3) an independent accounting
firm certify that the Defeasance Collateral is sufficient to make such
payments, (4) the Mortgage Loan be assumed by a Single-Purpose Entity
designated by the holder of such Mortgage Loan, and (5) counsel provide an
opinion letter to the effect that the Trustee has a perfected security
interest in such Defeasance Collateral prior to any other claim or
interest, or (C) provide that the defeasance of such Mortgage Loan is
subject to rating confirmation by the Rating Agencies.
(li) No Person has been granted or conveyed the right to
service such Mortgage Loan or receive any consideration in connection
therewith except as contemplated in this Agreement.
(lii) To the Depositor's knowledge, (A) the related Mortgaged
Property is free and clear of any and all mechanics' and materialmen's
liens that are not bonded or escrowed for, and (B) no rights are
outstanding that under law could give rise to any such lien that would be
prior or equal to the lien of the related Mortgage. The Depositor has not
received actual notice with respect to such Mortgage Loan that any
mechanics' and materialmen's liens have encumbered such Mortgaged Property
since origination that have not been released, bonded or escrowed for.
(liii) Such Mortgage Loan bears interest at a Mortgage Rate
that remains fixed throughout the remaining term of such Mortgage Loan
unless (A) such Mortgage Loan is an ARD Mortgage Loan in which case its
Mortgage Rate increases by its Additional Interest Rate after its
Anticipated Repayment Date or (B) such Mortgage Loan defaults.
(liv) 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, then upon occurrence of a default under the terms of
the related Mortgage by the Mortgagor, the mortgagee has the right to
foreclose upon or otherwise exercise its rights with respect to such fee
interest.
(lv) If such Mortgage Loan is a Credit Lease Loan:
(A) 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 (or an escrow has
been established to cover the difference);
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(B) 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, except for
those monetary obligations that have been reserved for;
(C) the Mortgagor does not have any material nonmonetary
obligations under the related Credit Lease, except for the
delivery of possession of the leased property;
(D) 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 rent under, 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 the
related Mortgagor under the Credit Lease or due to a casualty
or condemnation event, in which case, a Lease Enhancement
Policy insures against each 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) except with respect to the Credit Lease Loans listed
in Schedule III E.1 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;
(H) except with respect to the Mortgage Loans listed in
Schedule III-E.2 hereto, the 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;
(I) in the event the related Credit Lease is accompanied
by a guaranty from the related Rated Party, such guaranty is
legal, valid and binding against such Rated Party, and such
Rated Party has also executed or acknowledged in writing,
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with respect to the Mortgage, a subordination and
non-disturbance agreement; such guaranty is unconditional,
irrevocable and absolute, without any right of offset,
counterclaim or defense; such guaranty provides that it is a
guaranty of both the performance and payment of the financial
obligations of the related Tenant, and not only of collection;
and such guaranty is binding on the related Rated Party, its
successors and assigns and may not be amended or released
without the mortgagee's consent;
(J) 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 each such related
Lease Enhancement Policy and Residual Value Insurance Policy,
if any is a non-cancelable (subject to customary exceptions)
policy;
(K) the list of lease guarantors, if any, attached as
Schedule III-E.3 hereto, is accurate in all material respects;
(L) no default by the related Mortgagor or Tenant has
occurred under the related Credit Lease, and, to the
Depositor's knowledge, there is no existing condition which,
but for the passage of time or the giving of notice, or both,
would result in a default under the terms of such Credit
Lease;
(M) the related Credit Lease is in full force and
effect, and is a legal, valid, binding and (subject to the
exceptions set forth in paragraph (vii) above) enforceable
agreement of the related Tenant;
(N) no Person owns any interest in any payments due
under the related Credit Lease other than the Mortgagor and
the Depositor (which interest is being conveyed hereunder);
(O) the related Tenant has agreed to notify the
mortgagee of any default under the related Credit Lease and to
provide the mortgagee with additional time and opportunity to
cure;
(P) such Credit Lease Loan provides that the related
Credit Lease cannot be modified without the consent of the
mortgagee thereunder;
(Q) there is no right of rescission, offset, abatement,
diminution, defense or counterclaim to the related Credit
Lease, nor will the operation of any of the terms of such
Credit Lease, or the exercise of any rights thereunder, render
such Credit Lease unenforceable, in whole or in part, or
subject to any right of rescission, offset, abatement,
diminution, defense or counterclaim;
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(R) the related Tenant is required under such Credit
Lease Loan to make all rental payments directly to the
mortgagee, its successors and assigns;
(S) the related Credit Lease contains customary and
(subject to the exceptions set forth in paragraph (vii) above)
enforceable provisions which render the rights and remedies of
the lessor thereunder adequate for the enforcement and
satisfaction of the lessor's rights thereunder;
(T) the related Credit Lease has an original term ending
on or after the final maturity of such Credit Lease Loan; and
(U) unless such Credit Lease Loan is a Balloon Mortgage
Loan, such Credit Lease Loan is fully-amortizing over its
original term; and
(lvi) The Due Date for each Mortgage Loan is scheduled to be
the first day or first business day, as the case may be, of the month.
(lvii) Subject only to Permitted Encumbrances (which Permitted
Encumbrances do not, individually or in the aggregate, materially and
adversely interfere with the benefits of the security intended to be
provided by the related Mortgage, materially and adversely interfere with
the current use or operation of the related Mortgaged Property or
materially and adversely affect the value of marketability of such
Mortgaged Property or ability of the related Mortgagor to timely pay in
full the principal and interest on the related Mortgage Note), the related
Assignment of Leases set forth in or separate from the related Mortgage
and delivered in connection with such Mortgage Loan establishes and
creates a valid and, subject only to the exceptions in paragraph (vii)
above, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, subleases,
licenses or other agreements pursuant to which any Person is entitled to
occupy, use or possess all or any portion of the Mortgaged Property
subject to the related Mortgage, and each assignor thereunder has the full
right to assign the same.
(c) The Depositor hereby acknowledges that, as of the Closing Date,
it will hold all of the Non-Registered Certificates. The Depositor hereby agrees
not to transfer any of those Certificates to LUBS or LBHI. In addition, 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 all of its interest in the Class G, Class H, Class J,
Class K, Class L, Class M, Class N and Class P 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.
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(ii) Each of the Depositor, the Mortgage Loan 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 or by
which it is bound.
(iii) The Depositor shall engage in transactions with each Mortgage
Loan 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) Neither the Mortgage Loan Sellers nor the Underwriter currently
guarantee any obligations of the Depositor, and the Depositor shall not
allow the Mortgage Loan Sellers, the Underwriters or any of its other
affiliates to guarantee the obligations of the Depositor.
(v) The Mortgage Loan 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 and the Prospectus.
(viii) The Depositor has not conducted and shall not conduct its
business activities in violation of its organizational documents, as in
effect on the Closing Date, and shall not modify the provisions of
Articles III, V, VIII, IX or X of its certificate of incorporation, as in
effect on the Closing Date, in any event unless it receives written
confirmation from each Rating Agency that doing so would not result in a
qualification (in the case of Moody's), 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, as in effect on
the Closing Date.
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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 Mortgage Loan Seller in an insolvency of such Mortgage Loan
Seller or with the Underwriter in an insolvency of the Underwriter.
(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 (or, in the case of the representations, warranties and
covenants set forth in clauses (i) - (ix) of Section 2.04(c), during the
Depositor Restricted Period). 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 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.
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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.
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 and Companion Loans that it is
obligated to service and administer pursuant to this Agreement on behalf of the
Trustee, for the benefit of the Certificateholders (or, in the case of each
Companion Loan, on behalf of the related Companion Loan Noteholder), 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, in accordance with the terms of this Agreement, the respective
Mortgage Loans or Companion Loans, the Co-Lender and Servicing Agreements (in
the case of the respective Loan Pairs) and any Residual Value Insurance Policies
or Lease Enhancement Policies (in the case of the respective Credit Lease 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 and Companion Loans that are not Specially
Serviced Loans, and (ii) the Special Servicer shall service and administer each
Specially Serviced Loan and REO Property and shall render such services with
respect to all Mortgage Loans, Companion 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 and Companion Loans it is obligated to service
hereunder, is hereby authorized and empowered by the Trustee to execute and
deliver, on behalf of the Certificateholders, the Trustee and each Companion
Loan Noteholder 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
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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. Notwithstanding anything contained herein to
the contrary, neither the Master Servicer nor the Special Servicer shall,
without the Trustee's written consent: (i) except as relates to a Mortgage Loan
or Companion Loan that the Master Servicer or the Special Servicer, as
applicable, is servicing pursuant to its respective duties herein (in which case
such servicer shall give notice to the Trustee of the initiation), initiate any
action, suit or proceeding solely under the Trustee's name without indicating
the Master Servicer's or Special Servicer's, as applicable, representative
capacity, or (ii) take any action with the intent to cause the Trustee to be
registered to do business in any state.
(c) The parties hereto acknowledge that each Loan Pair is subject to
the terms and conditions of the related Co-Lender and Servicing Agreement. With
respect to each Loan Pair, the parties hereto recognize the respective rights
and obligations of the "Lenders" under the related Co-Lender and Servicing
Agreement, including with respect to the allocation of collections on or in
respect of such Loan Pair in accordance with Section 4.01(a) of such Co-Lender
and Servicing Agreement, the making of payments to the "Lenders" in accordance
with Section 4.01(b) of such Co- Lender and Servicing Agreement and the purchase
of the Mortgage Loan in such Loan Pair by the related Companion Loan Noteholder
or its designee in accordance with Section 4.03 of such Co-Lender and Servicing
Agreement. The Master Servicer assumes the obligations of "Master Servicer"
under each Co-Lender and Servicing Agreement. In the event that the servicing
and administration of any Loan Pair is to be governed by the terms of the
related Co-Lender and Servicing Agreement, as contemplated by Section 3.26(c) of
such Co-Lender and Servicing Agreement, the Master Servicer agrees to act in
such capacity under such Co-Lender and Servicing Agreement, and the Special
Servicer agrees to act in such capacity under such Co-Lender and Servicing
Agreement in the event that such Loan Pair is being specially serviced hereunder
at the time it again becomes subject to such Co-Lender and Servicing Agreement.
Notwithstanding the foregoing, all of the Special Servicer's rights and
obligations with respect to the Companion Loans shall be governed by this
Agreement unless and until, as described in the preceding sentence, any such
loan is to be specially serviced and administered under the related Co-Lender
and Servicing Agreement.
Where references are made in the currently operative provisions of
each Co-Lender and Servicing Agreement to provisions thereof that, pursuant to
Section 3.01 of such agreement, are currently inoperative, such reference shall
be deemed to be a reference to the provisions hereof dealing with the same
subject matter in respect of the applicable Loan Pair.
(d) 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.
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SECTION 3.02. Collection of Loan Payments.
(a) Each of the Master Servicer and the Special Servicer shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Mortgage Loans and Companion 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 Loans, the Mortgagors make payments directly to the Master
Servicer. Upon receipt of any such payment with respect to a Specially Serviced
Loan, 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 Loan, or the Master Servicer, with regard to a Mortgage
Loan or Companion Loan that is not a Specially Serviced 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. Except with respect
to the Century City Loan Pair and the SunAmerica Loan Pair, 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 Mortgage 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, unless a
Liquidation Event has occurred with respect to such Mortgage Loan, 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, unless a Liquidation Event has occurred
with respect to such Mortgage Loan, 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 Loan;
seventh, as a recovery of any Default Interest and late payment charges then due
and owing under such Mortgage Loan;
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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 Mortgage 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 Mortgage Loan after its
Anticipated Repayment Date, as a recovery of accrued and unpaid Additional
Interest on such ARD Mortgage Loan to but not including the date of receipt. All
amounts collected in respect of the Century City Loan Pair or the SunAmerica
Loan Pair shall be applied to amounts due and owing under the related Mortgage
Notes and Mortgage (including for principal and accrued and unpaid interest) in
accordance with the express provisions of the related Mortgage Notes, Mortgage,
loan agreement and Co-Lender and Servicing Agreement.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans (except the
SunAmerica Mortgage Loan and the Century City Mortgage Loan), establish and
maintain one or more accounts (the "Pool Servicing Accounts"), in which all
Escrow Payments shall be deposited and retained. The Master Servicer shall, at
all times, establish and maintain, with respect to each of the SunAmerica Loan
Pair and the Century City Loan Pair, one or more accounts (the "SunAmerica
Servicing Account" and the "Century City Servicing Account", respectively), in
which all related Escrow Payments shall be deposited and retained. Subject to
the terms of the related 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 such Servicing Account; (v) pay the Master
Servicer interest and investment income on balances in such 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
such 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
and/or Companion 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 the related Servicing Accounts, 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.
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(b) The Master Servicer shall, as to each and every Mortgage Loan
and Companion 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 and Companion Loans that require the related Mortgagor to escrow
for such items, shall effect payment thereof prior to the applicable penalty or
termination date. For 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 Loan Pair (or, if such Mortgage Loan
or Loan Pair 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
and Companion 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) or
3.05A(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 and/or Companion Loans, notwithstanding that the terms of
such 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 one
Business Day after such notice is given to the Master Servicer or the Special
Servicer, as applicable, then (subject to a determination by the Trustee or by
the Fiscal Agent that such Servicing Advance would not, if made, be a
Nonrecoverable Servicing Advance) the Trustee shall
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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 one Business
Day of such failure by the Trustee and, if so made, 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 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 not before 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 Pool Custodial Account (or,
if such Servicing Advance was made with respect to a Loan Pair, out of other
amounts on deposit in the Custodial Account that relates solely to such Loan
Pair). 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) or 3.05A(a), as applicable, for any Servicing Advance as soon as
practicable after funds available for such purpose are deposited in the related
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 Officer's
Certificate delivered promptly to the Trustee and the Depositor (and, in the
case of a Mortgaged Property securing a Loan Pair, the related Companion Loan
Noteholder), 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. If the Master Servicer
intends to obtain an appraisal in connection with the foregoing, the Master
Servicer shall so notify
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the Special Servicer and consult with the Special Servicer regarding such
appraisal. 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.
Notwithstanding anything set forth herein to the contrary, however,
the Master Servicer shall (at the direction of the Special Servicer if a
Specially Serviced Loan or an REO Property is involved) pay directly out of the
Pool Custodial Account, the SunAmerica Custodial Account or the Century City
Custodial Account, as applicable, 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 Loan or an REO Property is involved) has determined in
accordance with the Servicing Standard that making such payment, in the case of
withdrawals from the Pool Custodial Account, is in the best interests of the
Certificateholders (as a collective whole) or, in the case of the Century City
Loan Pair or the SunAmerica Loan Pair and withdrawals from the related Custodial
Account, is in the best interests of the Certificateholders and the related
Companion Loan Noteholder (as a collective whole) , as evidenced in each case by
an Officer's Certificate delivered promptly to the Trustee, the Depositor, the
related Companion Loan Noteholder 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 (other than
the Century City Mortgage Loan and the SunAmerica Mortgage Loan), establish and
maintain, as applicable, one or more accounts (the "Pool Reserve Accounts"),
into which all Reserve Funds, if any, shall be deposited and retained. The
Master Servicer shall, at all times, establish and maintain, with respect to
each of the Century City Loan Pair and the SunAmerica Loan Pair, one or more
accounts (the "Century City Reserve Accounts" and the "SunAmerica Reserve
Accounts", respectively), in which all related 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
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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 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 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. Pool Custodial Account, Defeasance Deposit Account,
Collection Account and Interest Reserve Account.
(a) The Master Servicer shall establish and maintain one or more
separate accounts (collectively, the "Pool Custodial Account"), in which the
amounts described in clauses (i) through (viii) below (which shall not include
any amounts allocable to the Companion Loans) shall be deposited and held on
behalf of the Trustee in trust for the benefit of the Certificateholders. The
Pool Custodial Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Pool 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 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, and other than amounts required to be deposited in the
Defeasance Deposit Account), 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 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 Pool 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;
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(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;
provided that any amounts described in clauses (i) - (viii) above that relate to
the SunAmerica Mortgage Loan or any related REO Property (other than Liquidation
Proceeds derived from the sale of the SunAmerica Mortgage Loan to or through the
related Companion Loan Noteholder pursuant to the related Co-Lender and
Servicing Agreement or as a Defaulted Mortgage Loan pursuant to Section 3.18)
shall be deposited in the SunAmerica Custodial Account and any amounts described
in clauses (i) - (viii) above that relate to the Century City Mortgage Loan or
any related REO Property shall (other than Liquidation Proceeds derived from the
sale of the Century City Mortgage Loan to or through the related Companion Loan
Noteholder pursuant to the related Co-Lender and Servicing Agreement or as a
Defaulted Mortgage Loan pursuant to Section 3.18) shall be deposited in the
Century City Custodial Account and, in each such case, shall thereafter be
transferred to the Pool Custodial Account.
The foregoing requirements for deposit in the Pool 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, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, 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 Pool Custodial Account. If the Master
Servicer shall deposit in the Pool Custodial Account any amount not required to
be deposited therein, it may at any time withdraw such amount from the Pool
Custodial Account, any provision herein to the contrary notwithstanding. The
Master Servicer shall promptly deliver to the Special Servicer, as additional
special servicing compensation in accordance with Section 3.11(d), all
assumption fees and 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 written
statement 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 written statement is not
required). The Pool 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 (other than the
SunAmerica Mortgage Loan and the Century City Mortgage Loan), the Special
Servicer shall promptly, but in no event later than two Business Days after
receipt, remit such amounts to the Master Servicer for deposit into the Pool
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
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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 (other than an REO Property that relates to a Loan Pair) shall be
deposited by the Special Servicer into the Pool REO Account and remitted to the
Master Servicer for deposit into the Pool Custodial Account pursuant to Section
3.16(c).
If and when any Mortgagor under a Defeasance Loan elects to defease
all or any part of its Mortgage Loan and delivers cash to the Master Servicer to
purchase the required Defeasance Collateral, the Master Servicer shall establish
and maintain one or more separate segregated accounts (collectively, the
"Defeasance Deposit Account"), in which the Master Servicer shall deposit such
cash within one Business Day of receipt by the Master Servicer. The Master
Servicer shall retain such cash in the Defeasance Deposit Account pending its
prompt application to purchase Defeasance Collateral. The Master Servicer shall
hold such cash and maintain the Defeasance Deposit Account on behalf of the
Trustee and, in the case of a Loan Pair, the applicable Companion Loan
Noteholder, to secure payment on the related Defeasance Loan. The Defeasance
Deposit Account shall be an Eligible Account. To the extent permitted by law or
the applicable Defeasance Loan, prior to the purchase of Defeasance Collateral,
funds in the Defeasance Deposit Account 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 related Mortgagor(s) interest, if
any, earned on the investment of funds in the Defeasance Deposit Account, if
required by law or the terms of the related Mortgage Loan(s).
(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
Pool 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 Mortgage 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);
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(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; and
(iii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls.
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
2000), 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 Pool Custodial Account, the Collection Account and
the Interest Reserve Account (other than Additional Interest received in respect
of the ARD Mortgage 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 Pool Custodial
Account as of the Closing Date and of the new location of the Pool Custodial
Account prior to any change thereof. As of the Closing Date, the Collection
Account and the Interest Reserve Account shall be located at the Trustee's
offices in Chicago, Illinois. The Trustee shall give notice to the Master
Servicer, the Special Servicer and the Rating Agencies of any change in the
location of each of the Collection Account and the Interest Reserve Account
prior to any change thereof.
SECTION 3.04A. Century City and SunAmerica Custodial Accounts.
(a) The Master Servicer shall establish and maintain, with respect
to each Loan Pair, one or more separate accounts (the "Century City Custodial
Account", in the case of the Century City Loan Pair, and the "SunAmerica
Custodial Account", in the case of the SunAmerica Loan Pair) in which the
amounts described in clauses (i) through (ix) below shall be deposited and held
in trust for the benefit of the holders of the Mortgage Notes for the particular
Loan Pair, as their interests may appear. The Custodial Account for each such
Loan Pair shall be an Eligible Account. The Master Servicer shall deposit or
cause to be deposited in the SunAmerica Custodial Account or
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the Century City Custodial Account, as the case may be, within one Business Day
of receipt (in the case of payments or other collections on the related Loan
Pair) or as otherwise 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 related
Loan Pair due and payable on or before the Cut-off Date, which payments shall be
held pursuant to the terms of the applicable Co-Lender and Servicing Agreement,
and other than amounts required to be deposited in the Defeasance Deposit
Account):
(i) all payments on account of principal of the related Loan Pair,
including, without limitation, Principal Prepayments;
(ii) all payments on account of interest on the related Loan Pair,
including, without limitation, Default Interest and Additional Interest,
and late payment charges;
(iii) all Prepayment Premiums and/or Yield Maintenance Charges
received in respect of the related Loan Pair;
(iv) all Insurance Proceeds and Liquidation Proceeds received in
respect of the related Loan Pair (other than Liquidation Proceeds derived
from the sale of the Mortgage Loan in the related Loan Pair to or through
the related Companion Loan Noteholder pursuant to the related Co-Lender
and Servicing Agreement or as a Defaulted Mortgage Loan pursuant to
Section 3.18);
(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 such 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 the related REO
Account pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by the related Mortgagor specifically to cover items for
which a Servicing Advance has been made; and
(ix) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03A.
The foregoing requirements for deposit in the Century City Custodial
Account and the SunAmerica Custodial Account shall be exclusive. Notwithstanding
the foregoing, actual payments from the related Mortgagor in the nature of
Escrow Payments, Reserve Funds, assumption fees, assumption application fees,
funds representing such Mortgagor's payment of costs and
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expenses associated with assumptions and defeasance, 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 Century City Custodial Account or the
SunAmerica Custodial Account, as the case may be. If the Master Servicer shall
deposit into either such Custodial Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such Custodial
Account, any provision herein to the contrary notwithstanding. The Master
Servicer shall promptly deliver to the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(d), all assumption fees
and assumption application fees (or the applicable portions thereof) and other
transaction fees received by the Master Servicer with respect to the Century
City Loan Pair or the SunAmerica Loan Pair, to which the Special Servicer is
entitled pursuant to such section upon receipt of a written statement 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 written statement is not required).
Each of the Century City Custodial Account and the SunAmerica 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 the SunAmerica Loan Pair and/or the
Century City Loan Pair, the Special Servicer shall promptly, but in no event
later than two Business Days after receipt, remit such amounts to the Master
Servicer for deposit into the related 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 that relates to the
SunAmerica Loan Pair or the Century City Loan Pair, shall be deposited by the
Special Servicer into the related REO Account and remitted to the Master
Servicer for deposit into the SunAmerica Custodial Account or the Century City
Custodial Account, as the case may be, pursuant to Section 3.16(c).
(b) If and when the related Mortgagor elects to defease the
SunAmerica Loan Pair or the Century City Loan Pair, the provisions of the last
paragraph of Section 3.04(a) relating to the Defeasance Deposit Account shall
apply.
(c) The Master Servicer shall give notice to the Trustee, the
related Companion Loan Noteholder and the Special Servicer of the location of
each of the Century City Custodial Account and the SunAmerica Custodial Account
when first established and of the new location of each such account prior to any
change thereof.
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SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account,
the Collection Account and the Interest Reserve
Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Pool Custodial Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(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 made thereby with respect to any
Mortgage Loan or REO Loan (other than a Mortgage Loan or an REO Loan that
is part of a Loan Pair), 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 (other than a Mortgage Loan or
an REO Loan that is part of a Loan Pair), 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 Loan and REO Loan
(other than a Specially Serviced Loan that is, or an REO Loan that relates
to, a Companion 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 (other than a Mortgage Loan or an
REO Loan that is part of a Loan Pair) 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 Pool 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 Loan, Corrected Loan and/or REO Loan
(other than a Mortgage Loan or an REO Loan that is part of a Loan Pair),
as applicable, in the amounts and from the sources specified in Section
3.11(c);
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(vi) to reimburse the Fiscal Agent, the Trustee, itself or the
Special Servicer, in that order, for any unreimbursed Servicing Advances
made thereby with respect to any Mortgage Loan or REO Property (other than
a Mortgage Loan that is part of, or an REO Property that relates to, a
Loan Pair), 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;
(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
(other than unreimbursed P&I Advances with respect to a Companion Loan or
successor REO Loan) 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 (other than with respect to a Loan Pair or
related REO Property), 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); provided that, in the case of a Mortgaged Property that relates
to a Loan Pair, such payment is to be made only to the extent that it
would not ultimately be payable out of collections on or in respect of
such Loan Pair;
(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 Pool 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 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 special
servicing
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compensation in accordance with Section 3.11(d), Default Interest and late
payment charges actually collected that accrued in respect of Specially
Serviced 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); provided that payments pursuant to
subclauses (B) and (C) of this clause (x) shall not relate to any Loan
Pair;
(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); provided that, in the case of a Mortgaged Property
that relates to a Loan Pair, such payment is to be made only to the extent
that it would not ultimately be payable out of collections on or in
respect of such Loan Pair;
(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; provided that such payment does not relate to a Companion Loan);
(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, any
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 (other than servicing expenses that relate solely to a Companion
Loan or a successor REO Loan); and
(xvi) to clear and terminate the Pool 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 Pool Custodial Account pursuant to
clauses (ii) - (xv) above.
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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 Accounts, 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 written statement of a
Servicing Officer of the Special Servicer or of a Responsible Officer of the
Trustee or the Fiscal Agent 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 written statement is not required).
The Master Servicer may rely conclusively on any such written statement 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
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 Pool Custodial
Account. With respect to each Mortgage Loan for which it makes an Advance, each
of the Trustee and Fiscal Agent shall 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 Pool
Custodial Account for reimbursements of Advances or interest thereon.
(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 its 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)
and/or Section 8.05, 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
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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.
(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 3.05A. Permitted Withdrawals From the Century City and
SunAmerica Custodial Accounts.
The Master Servicer may, from time to time, make withdrawals from
the Century City Custodial Account or the SunAmerica Custodial Account, as the
case may be, for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals):
(i) to make remittances on the applicable Loan Pair Remittance Date
to the related Companion Loan Noteholder and to the Trust in accordance
with Section 4.01 of the related Co-Lender and Servicing Agreement, such
remittances to the Trust to be made into the Pool Custodial Account;
(ii) to reimburse the Century City Fiscal Agent, the SunAmerica
Fiscal Agent, the Fiscal Agent, the Century City Trustee, the SunAmerica
Trustee, the Trustee or itself, as the case may be, in that order, for
unreimbursed P&I Advances with respect to the related Loan Pair, such
party's rights to reimbursement pursuant to this clause (ii) with respect
to any
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P&I Advance 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 loan in the related Loan Pair as to which such P&I Advance was
made;
(iii) to pay to itself earned and unpaid Master Servicing Fees with
respect to the related Loan Pair, the Master Servicer's right to payment
pursuant to this clause (iii) with respect to either loan in such Loan
Pair being limited to amounts received on or in respect of such loan that
are allocable as a recovery of interest thereon;
(iv) to reimburse the Century City Fiscal Agent, the SunAmerica
Fiscal Agent, the Fiscal Agent, the Century City Trustee, the SunAmerica
Trustee, the Trustee, itself or the Special Servicer, as the case may be,
in that order, for any unreimbursed P&I Advances that such party has
determined are Nonrecoverable Advances with respect to the related Loan
Pair;
(v) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of the related Loan Pair while either loan in
such Loan Pair constitutes a Specially Serviced Loan and after the related
Mortgaged Property becomes an REO Property;
(vi) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in
respect of the related Loan Pair in the amounts and from the sources
specified in Section 3.11(c);
(vii) to reimburse itself or the Special Servicer, in that order,
for any unreimbursed Servicing Advances made thereby with respect to the
related Loan Pair or REO Property;
(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 with respect to the related Loan Pair or REO
Property, 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 on or in respect of the related
Loan Pair (or, in the case of interest on a P&I Advance made with respect
to either loan in such Loan Pair, on or in respect of such loan) 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 any other collections on or in respect
of the related Loan Pair;
(ix) to pay for (A) costs and expenses incurred with respect to the
related Mortgaged Property 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), (B) the costs and expenses of
obtaining appraisals of the related Mortgaged Property pursuant to Section
3.03(e) or 4.03A(c) and (C) the fees of any Independent Contractor
retained with respect to
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any related REO Property pursuant to Section 3.17(c) (to the extent that
it has not paid itself such fees prior to remitting collections on such
REO Property to the Special Servicer);
(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 such Custodial Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings
with respect to such Custodial Account for any Collection Period and (B)
Default Interest and late payment charges actually collected that accrued
in respect of the related Loan Pair during a period that they were not
Specially Serviced Loans and the related Mortgaged Property was not an REO
Property (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 special
servicing compensation in accordance with Section 3.11(d), Default
Interest and late payment charges actually collected that accrued in
respect of the related Loan Pair during a period that they were Specially
Serviced Loans or the related Mortgaged Property was an REO Property (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 itself, the Special Servicer, or any of their respective
directors, officers, employees and agents, as the case may be, any amounts
payable to any such Person pursuant to Section 6.03, to the extent such
amounts relate to the related Loan Pair;
(xii) to pay for the cost of recording the related Co-Lender and
Servicing Agreement and any required opinion of counsel related thereto;
and
(xiii) to clear and terminate such Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting records in
connection with any withdrawal from the SunAmerica Custodial Account or the
Century City Custodial Account pursuant to clauses (ii) - (xii) above.
The Master Servicer shall pay to each of the Special Servicer (or to
third party contractors at the direction of the Special Servicer), the Trustee
and the Fiscal Agent from the SunAmerica Custodial Account or the Century City
Custodial Account amounts permitted to be paid thereto from such account
promptly upon receipt of a written statement of a Servicing Officer of the
Special Servicer or a Responsible Officer of the Trustee or the 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 the case
may be, is entitled. The Master Servicer may rely conclusively on any such
written statement and shall have no duty to re-calculate the amounts stated
therein. The Special Servicer, the Trustee and the Fiscal Agent shall each keep
and maintain separate accounting for the purpose of justifying any request for
withdrawal from the SunAmerica Custodial Account or the Century City Custodial
Account on a loan-by-loan basis.
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SECTION 3.06. Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account, the
Custodial Accounts, the Collection Account, the
Interest Reserve Account and the REO Accounts.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or a 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 an 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
Mortgage 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, Reserve Account or the Defeasance Deposit 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
and the Interest Reserve Account will be invested in accordance herewith on the
day of receipt if received by 4:00 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) and, in the case of a Permitted Investment in any
Investment Account solely related to a particular Loan Pair, the related
Companion Loan Noteholder. The Master Servicer (with respect to Permitted
Investments of amounts in the Servicing Accounts, the Reserve Accounts, the
Defeasance Deposit Account and the Custodial Accounts) and the Special Servicer
(with respect to Permitted Investments of amounts in the REO Accounts), on
behalf of the Trustee and, in the case of any Investment Account solely related
to a particular Loan Pair, the related Companion Loan Noteholder, 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 in any Investment Account by the Master Servicer or the Special
Servicer shall constitute "control" by a Person designated by, and acting on
behalf of, the Trustee and, in the case of any Investment Account solely related
to a particular Loan Pair, the related Companion Loan Noteholder, 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 Accounts, Servicing
Accounts, Reserve Accounts and the Defeasance Deposit Account),
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the Trustee (in the case of the Collection Account and the Interest Reserve
Account) or the Special Servicer (in the case of the REO Accounts) 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 Defeasance
Deposit Account, the Custodial Accounts, 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, Reserve Accounts and the Defeasance Deposit Account, 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), 3.04(a), 3.03(f), 3.05(a) or 3.05A(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 any of the REO Accounts,
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 and the Defeasance Deposit
Account (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 Accounts, the Collection Account and
the Interest Reserve Account) and the Special Servicer (in the case of the REO
Accounts) 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, 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.
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(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 and
Companion Loans that are not Specially Serviced Loans) and the Special Servicer
(with respect to Specially Serviced 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 "A" from DCR (if then rated by DCR, and if not then rated by
DCR, then an equivalent rating by at least one additional nationally recognized
statistical rating agency besides Moody's) (or, in the case of either Rating
Agency, such lower rating as will not result in an Adverse Rating Event, as
evidenced in writing by such Rating Agency). Any 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 such Controlling Class Certificateholder. The
related Companion Loan Noteholder may request that earthquake insurance, to the
extent such insurance may reasonably be obtained, be secured for the Century
City Mortgaged Property or the SunAmerica Mortgaged Property at the expense of
such Companion Loan Noteholder. 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 "A" from DCR (if then rated by DCR, and if not then rated by DCR,
then an equivalent rating by at least one additional nationally recognized
statistical rating agency besides Moody's) (or, in the case of either Rating
Agency, such lower rating as will not result in an Adverse Rating Event, 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 and
Companion Loans, including, without limitation, Specially Serviced 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 Servicer or the Special Servicer under any such policies
(other than amounts to be applied to the restoration
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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 applicable Custodial Account, subject to withdrawal pursuant to
Section 3.05(a) or 3.05A(a), in the case of amounts received in respect of a
Mortgage Loan or Companion Loan, or in the applicable 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 a Controlling Class Certificateholder or
a Companion Loan Noteholder) 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, Companion Loan or REO Loan, notwithstanding that the terms of such 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, Companion 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 "A" from DCR (if then rated by DCR, and if not then rated by
DCR, then an equivalent rating by at least one additional nationally recognized
statistical rating agency besides Moody's) (or, in the case of either Rating
Agency, such lower rating as will not result in an Adverse Rating Event, 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 Pool Custodial
Account (or, in the case of a Mortgaged Property that relates to a Loan Pair,
into the Custodial Account that specifically relates to such Loan Pair) 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 or, in the case of a Mortgaged Property that relates to a
Loan Pair, on behalf of itself and the related Companion Loan Noteholder, 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 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
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"Baa3" from Moody's and "A" from DCR (if then rated by DCR, and if not then
rated by DCR, then an equivalent rating by at least one additional nationally
recognized statistical rating agency besides Moody's) (or, in the case of either
Rating Agency, such lower rating as will not result in an Adverse Rating Event,
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
Fannie Mae seller-servicer of multifamily mortgage loans, or in such other form
and amount as would not cause an Adverse Rating Event (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 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
DCR (if then rated by DCR, and if not then rated by DCR, then an equivalent
rating by at least one additional nationally recognized statistical rating
agency besides Moody's) (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event, 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 Fannie Mae
seller-servicer of multifamily mortgage loans, or in such other form and amount
as would not cause an Adverse Rating Event (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" from Moody's and "A" from DCR (if then rated by DCR, and if
not then rated by DCR, then an equivalent rating by at least one additional
nationally recognized statistical rating agency besides Moody's) (or, in the
case of either Rating Agency, such lower rating as will not result in an Adverse
Rating Event, 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).
SECTION 3.08. Enforcement of Alienation Clauses.
(a) In the event that the Master Servicer receives a request from a
Mortgagor pursuant to the provisions of any Mortgage Loan or Companion Loan
(other than a Specially Serviced Loan) that permits, with the lender's consent,
the transfer of the related Mortgaged Property to, and assumption of such
Mortgage Loan or Companion Loan, as the case may be, by, another Person or
transfers of certain interests in such Mortgagor, the Master Servicer shall
promptly obtain relevant information for purposes of evaluating such request. If
the Master Servicer recommends
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to approve such transfer and/or assumption, the Master Servicer shall promptly
provide to the Special Servicer a copy of such recommendation (which shall
include the reason therefor) and the materials upon which such recommendation is
based, and the Special Servicer shall within 10 Business Days of receipt have
the right hereunder to reasonably withhold or, subject to Section 3.08(d) and
Section 6.11, grant consent to any such request for such transfer and/or
assumption in accordance with the terms of the Mortgage Loan and this Agreement,
including, without limitation, the Servicing Standard. If the Special Servicer
does not respond within such 10-Business Day period, the Special Servicer's
consent shall be deemed granted. Upon consent by the Special Servicer to such
proposed transfer and/or assumption, the Master Servicer shall process such
request of the related Mortgagor; and, in the case of a transfer of the related
Mortgaged Property to, and assumption of such Mortgage Loan or Companion Loan,
as the case may be, by, another Person, the Master Servicer shall be authorized
to enter into an assumption or substitution agreement with the Person, which
shall be a Single Purpose Entity, to whom the related Mortgaged Property has
been or is proposed to be conveyed and/or release the original Mortgagor from
liability under the related Mortgage Loan and substitute as obligor thereunder
the Person to whom the related Mortgaged Property has been or is proposed to be
conveyed; provided, however, that the Master Servicer shall not enter into any
such agreement to the extent that any terms thereof would result in an Adverse
REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged
Property that is senior to, or on parity with, the lien of the related Mortgage.
The Master Servicer shall notify the Trustee, the Special Servicer, each Rating
Agency and, in the case of a Loan Pair, the related Companion Loan Noteholder,
of any assumption or substitution agreement executed pursuant to this Section
3.08(a) and shall forward thereto a copy of such agreement together with a
Review Package. The Master Servicer shall be entitled (as additional servicing
compensation) to 50% of each assumption fee, 100% of each assumption application
fee and each other fee for approving a transfer of a Mortgaged Property or an
interest in a Mortgagor collected from a Mortgagor in connection with an
assumption or substitution agreement executed pursuant to this Section 3.08(a)
or a transfer of interest in a Mortgagor approved pursuant to this Section
3.08(a), and the Special Servicer shall be entitled (as additional special
servicing compensation) to the other 50% of the assumption fee. Subject to the
terms of the related Mortgage Loan documents, no assumption of a
Cross-Collateralized Mortgage Loan shall be made without the assumption of all
other Mortgage Loans making up the related Cross- Collateralized Group. Further,
subject to the terms of the related Mortgage Loan documents and applicable law,
no assumption of a Mortgage Loan shall be made or transfer of interest in a
Mortgagor approved if all costs in connection therewith, including, but not
limited to, any arising from seeking Rating Agency confirmation, will not be
paid by the Mortgagor.
(b) Other than with respect to a transfer and assumption referred to
in subsection (a) above, if any Mortgage contains restrictions on transfers of
the related Mortgaged Property and/or transfers of interests in the related
Mortgagor, then the Special Servicer, on behalf of the Trust (and, with respect
to a Loan Pair, the related Companion Loan Noteholder), and not the Master
Servicer, shall, to the extent permitted by applicable law, enforce such
restrictions, unless 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, together with a Review Package
in respect thereof, to the Trustee, the Master Servicer, each Rating Agency and,
with respect to a Loan Pair, the related Companion Loan Noteholder); provided
that, any such waiver of such restrictions shall be subject
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to Section 3.08(d) and Section 6.11. If the Master Servicer receives a request
for a transfer and assumption of a Specially Serviced Loan from a Mortgagor
whose Mortgage contains restrictions on transfers of the related Mortgaged
Property, the Master Servicer shall immediately notify the Special Servicer of
such request and deliver to the Special Servicer the Mortgage File (or a copy
thereof) and such other documents that the Master Servicer shall have received
regarding the proposed transfer and assumption. Upon consent by the Special
Servicer to any proposed transfer of a Mortgaged Property and assumption by the
proposed transferee of the related Mortgage Loan or Companion Loan pursuant to
this Section 3.08(b), the Special Servicer shall process the request of the
related Mortgagor for such transfer and assumption and shall be authorized to
enter into an assumption or substitution agreement with the Person, which shall
be a Single Purpose Entity, to whom the related Mortgaged Property has been or
is proposed to be conveyed and/or release the original Mortgagor from liability
under the related Mortgage Loan and substitute as obligor thereunder the Person
to whom the related Mortgaged Property has been or is proposed to be conveyed;
provided, however, that the Special Servicer shall not enter into any such
agreement to the extent that any terms thereof would result in an Adverse REMIC
Event or Adverse Grantor Trust Event or create any lien on a Mortgaged Property
that is senior to, or on parity with, the lien of the related Mortgage. The
Special Servicer shall notify the Trustee, the Master Servicer, each Rating
Agency and, with respect to a Loan Pair, the related Companion Loan Noteholder,
of any assumption or substitution agreement executed pursuant to this Section
3.08(b) and shall forward thereto a copy of such agreement. The Special Servicer
shall be entitled (as additional special servicing compensation) to 100% of any
assumption fee and/or assumption application fee collected from a Mortgagor in
connection with an assumption or substitution agreement executed pursuant to
this Section 3.08(b). Subject to the terms of the related Mortgage Loan
documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made
without the assumption of all other Mortgage Loans making up the related Cross-
Collateralized Group. Further, subject to the terms of the related Mortgage Loan
documents and applicable law, no assumption of a Mortgage Loan shall be made if
all costs in connection therewith, including, but not limited to, any arising
from seeking Rating Agency confirmation, will not be paid by the Mortgagor.
(c) With respect to all Mortgage Loans and Companion Loans, the
Special Servicer on behalf of the Trustee as the mortgagee of record and, with
respect to a Loan Pair, on behalf of the related Companion Loan Noteholder,
shall, to the extent permitted by applicable law, enforce the restrictions
contained in the related Mortgage on further encumbrances of the related
Mortgaged Property, unless 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, each Rating Agency and, with respect to a Loan Pair, the
related Companion Loan Noteholder); provided that any such waiver of such
restrictions shall be subject to Section 3.08(d) and Section 6.11. Whenever the
Master Servicer becomes aware of a further encumbrance on a Mortgaged Property,
or becomes aware that there is going to be a further encumbrance on a Mortgaged
Property, the Master Servicer shall immediately notify the Special Servicer of
such further encumbrance and deliver to the Special Servicer all documents and
records (or copies thereof) in the Master Servicer's possession regarding the
further encumbrance and such other documents (or copies thereof) regarding the
Mortgage Loan as the Special Servicer shall reasonably require in order to
consider the request. To the extent permitted by the applicable
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Mortgage Loan documents and applicable law, the Special Servicer may charge the
related Mortgagor a fee in connection with any enforcement or waiver
contemplated in the second preceding sentence.
(d) Notwithstanding anything to the contrary contained in this
Section 3.08, if the then unpaid principal balance of the subject Mortgage Loan
or Companion Loan is at least equal to $20,000,000, neither the Master Servicer
nor the Special Servicer shall waive any restrictions contained in the related
Mortgage on transfers of the related Mortgaged Property or on transfers of
interests in the related Mortgagor, unless the Master Servicer or the Special
Servicer, as the case may be, shall have received prior written confirmation
from Moody's and, if the principal balance of the subject Mortgage Loan is also
at least equal to 2% of the then aggregate principal balance of the Mortgage
Pool or if the Century City Companion Loan is involved, from DCR, that such
action would not result in an Adverse Rating Event. In addition, notwithstanding
anything to the contrary contained in this Section 3.08, neither the Master
Servicer nor the Special Servicer shall in any event waive any restrictions
contained in any Mortgage on further encumbrances of the related Mortgaged
Property, unless the Master Servicer or the Special Servicer, as the case may
be, shall have received prior written confirmation from each Rating Agency that
such action would not result in an Adverse Rating Event. In connection with any
request for rating confirmation from a Rating Agency pursuant to this Section
3.08(d), the Master Servicer or the Special Servicer, as the case may be, shall
deliver a Review Package to such Rating Agency. To the extent not collected from
the related Mortgagor, any rating agency charges in connection with the
foregoing shall be paid by the Special Servicer as a Servicing Advance.
SECTION 3.09. Realization Upon Defaulted Loans; Required Appraisals;
Appraisal Reduction Calculation.
(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 and Companion 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) or Section 3.05A, as applicable. The Special Servicer shall be
responsible, consistent with the Servicing Standard, for determining 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 and, in the case of a Mortgaged Property
securing a Loan Pair, on behalf of the related Companion Loan Noteholder, 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. If and when the Master
Servicer or the Special Servicer deems it necessary and prudent for purposes of
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establishing the fair market value of any Mortgaged Property securing a
defaulted Mortgage Loan or Companion 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. If the Master Servicer intends to obtain
an appraisal in connection with the foregoing, the Master Servicer shall so
notify the Special Servicer and consult with the Special Servicer regarding such
appraisal. With respect to each Required Appraisal Loan, the Special Servicer
will be required to obtain or conduct, as applicable, a Required Appraisal
within 90 days of a Mortgage Loan or Companion 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 or conduct, as applicable, an updated Required Appraisal
once every 12 months for so long as such Mortgage Loan or Companion Loan, as the
case may be, remains a Required Appraisal Loan. The Special Servicer shall
deliver copies of all such Required Appraisals and updated Required Appraisals
to the Trustee, the Master Servicer and, in the case of a Mortgaged Property
securing a Loan Pair, the related Companion Loan Noteholder, in each such case,
promptly following the Special Servicer's receipt of the subject item, and to
the Controlling Class Representative upon request, and based thereon, the
Special Servicer shall calculate monthly and notify the Trustee, the Master
Servicer, the Controlling Class Representative and, in the case of a Loan Pair,
the related Companion Loan Noteholder, of any resulting Appraisal Reduction
Amount. Such calculations by the Special Servicer shall be subject to review and
confirmation by the Master Servicer, provided that the Master Servicer may rely
on any information provided by the Special Servicer. 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 related Custodial Account
pursuant to Section 3.05(a) or Section 3.05A. At any time that any Appraisal
Reduction Amount exists with respect to any Required Appraisal Loan, the
Controlling Class 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 monthly the Appraisal Reduction Amount in respect of such Required
Appraisal Loan based on the appraisal delivered by the Controlling Class
Representative and notify the Trustee, the Master Servicer and the Controlling
Class Representative of such recalculated Appraisal Reduction Amount. At any
time that any Appraisal Reduction Amount exists with respect to a Loan Pair that
constitutes a Required Appraisal Loan, the related Companion Loan Noteholder
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 such Companion Loan
Noteholder, the Special Servicer shall recalculate monthly the Appraisal
Reduction Amount in respect of such Required Appraisal Loan based on the
appraisal delivered by such Companion Loan Noteholder and notify the Trustee,
the Master Servicer and such Companion Loan Noteholder of such recalculated
Appraisal Reduction Amount.
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(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer as part of the
Trust Fund (and, in the case of any Mortgaged Property securing a Loan Pair, on
behalf of the related Companion Loan Noteholder) 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 (and, in the case of a Mortgaged Property securing a Loan Pair, on
behalf of the related Companion Loan Noteholder), 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 (and, in the case of
any Mortgaged Property securing a Loan Pair, the related Companion Loan
Noteholder), 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
Officer's Certificate to such effect delivered to the Trustee (and, in the case
of any Mortgaged Property securing a Loan Pair, the related Companion Loan
Noteholder) 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 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, the Master Servicer and, in the case of any
Mortgaged Property securing a Loan Pair, the related Companion Loan Noteholder),
that:
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(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would maximize the
recovery on the related Mortgage Loan to the Certificateholders (as a
collective whole) (or, if a Loan Pair is involved, would maximize the
recovery on such Loan Pair to the Certificateholders and the related
Companion Loan Noteholder (as a collective whole)), on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders (or, in the case of a Loan Pair, to
Certificateholders and the related Companion Loan Noteholder) to be
performed at the related Mortgage Rate (or, in the case of a Loan Pair, at
the weighted average of the Mortgage Rates for such Loan Pair)) 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 on the
related Mortgage Loan to the Certificateholders (as a collective whole)
(or, if a Loan Pair is involved, would maximize the recovery on such Loan
Pair to the Certificateholders and the related Companion Loan Noteholder
(as a collective whole)), on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders (or, in the case of a Loan Pair, to Certificateholders
and the related Companion Loan Noteholder) to be performed at the related
Mortgage Rate (or, in the case of a Loan Pair, at the weighted average of
the Mortgage Rates for such Loan Pair)) 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 related Custodial Account pursuant to Section 3.05 or
3.05A, as applicable (or, in the case of each of the Century City Loan Pair and
the SunAmerica Loan Pair, to the extent the funds are insufficient, shall be
advanced by the Master Servicer).
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(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 (and, if a
Companion Loan is affected, the related Companion Loan Noteholder), subject to
Section 6.11 and provided that the Trustee shall have consented, 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 notified the Certificateholders (and, if a Companion Loan is affected, the
related Companion Loan Noteholder) in writing of the Special Servicer's
intention to so release all or a portion of such Mortgaged Property, (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, and (iv) if a Companion Loan is affected, the related Companion Loan
Noteholder shall have consented thereto in writing. Notwithstanding the
foregoing, whenever the consent of the Trustee or a Companion Loan Noteholder is
required pursuant to this Section 3.09(d), the Trustee or the Companion Loan
Noteholder may, but is not required to, conclusively rely on the recommendation
of the Special Servicer in giving such consent.
(e) The Special Servicer shall report to the Master Servicer, the
Underwriter, the Trustee and, if a Companion Loan is affected, the related
Companion Loan Noteholder, 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 affected Mortgage Loan or Companion 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 Master Servicer shall, with the reasonable cooperation of
the Special Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received with respect to any Mortgaged Property
required by Section 6050H of the Code. Such reports shall be in form and
substance sufficient to meet the reporting requirements imposed by Sections
6050H of the Code.
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(h) The Special Servicer shall, with the reasonable cooperation of
the Master Servicer, prepare and file 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 6050J and 6050P of the Code and each year deliver to the
Trustee, the REMIC Administrator and, in the case of a Mortgaged Property
securing a Loan Pair, the related Companion Loan Noteholder, an Officer's
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 6050J and 6050P of the Code.
(i) 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, the Master Servicer and, if a Companion Loan is
affected, the related Companion Loan Noteholder. 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, the Master Servicer and, in the case of a Mortgaged Property
securing a Loan Pair, the related Companion Loan Noteholder, no later than the
seventh Business Day following such Final Recovery Determination.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan or Companion Loan,
or the receipt by the Master Servicer or the Special Servicer of a notification
that payment in full shall be escrowed in a manner customary for such purposes,
the Master Servicer or the Special Servicer shall promptly notify the Trustee
(and, in the case of a Companion Loan, the related Companion Loan Noteholder) 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 appropriate Custodial Account pursuant
to Section 3.04(a) or 3.04A(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 and, in
the case of a Companion Loan, the original of the related Mortgage Note. Upon
receipt of such certification and request, the Trustee shall release, or cause
any related Custodian to release, the related Mortgage File (and, in the case of
a Companion Loan, the Trustee shall cause the related Companion Loan Noteholder
to release the related Mortgage Note) to the Master Servicer or Special Servicer
and shall deliver to the Master Servicer or Special Servicer, as applicable,
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 Collection Account or any Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan or Companion Loan, the Master Servicer or the
Special Servicer shall otherwise require any Mortgage File (or any portion
thereof) (or the original of the Mortgage Note for a Companion Loan), 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
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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 such portion thereof) (and in the case of a Companion Loan, the Trustee
shall cause the related Companion Loan Noteholder to release the original of the
related Mortgage Note) to the Master Servicer or the Special Servicer, as the
case may be. Upon return of such Mortgage File (or such portion thereof) (or
such original Mortgage Note for a Companion Loan) to the Trustee or related
Custodian (or to the related Companion Loan Noteholder), or the delivery to the
Trustee (or the related Companion Loan Noteholder) of a certificate of a
Servicing Officer of the Special Servicer stating that such Mortgage Loan or
Companion Loan, as the case may be, was liquidated and that all amounts received
or to be received in connection with such liquidation that are required to be
deposited into the related Custodial Account pursuant to Section 3.04(a) or
3.04A(a), as applicable, have been or will be so deposited, or that the related
Mortgaged Property 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 (and, in the case of a
Mortgaged Property securing a Loan Pair, the related Companion Loan Noteholder)
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 (on behalf of the Certificateholders and,
in the case of a Mortgaged Property securing a Loan Pair, also on behalf of the
related Companion Loan Noteholder) 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 counterclaim
filed against the Trust Fund, the Master Servicer, the Special Servicer or any
related Companion Loan Noteholder. Together with such documents or pleadings,
the Special Servicer shall deliver to the Trustee (and, in the case of a
Mortgaged Property securing a Loan Pair, the related Companion Loan Noteholder)
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 (on behalf of the Certificateholders and, in the case of a Mortgaged
Property securing a Loan Pair, also on behalf of the related Companion Loan
Noteholder) 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. Notwithstanding anything contained herein to the contrary,
neither the Master Servicer nor the Special Servicer shall, without the
Trustee's written consent: (i) except as relates to a Mortgage Loan or Companion
Loan that the Master Servicer or the Special Servicer, as applicable, is
servicing pursuant to its respective duties herein (in which case such servicer
shall give notice to the Trustee of the initiation), initiate any action, suit
or proceeding solely under the Trustee's name without indicating the Master
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Servicer's or Special Servicer's, as applicable, representative capacity, or
(ii) take any action with the intent to cause the Trustee to be registered to do
business in any state.
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, Companion Loan and REO Loan. As to each Mortgage Loan,
Companion 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 case of a Companion Loan or the related REO Loan, on an
Actual/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). 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) or 3.05A(a), as applicable. 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 or Companion Loan and accrued during the time that such Mortgage
Loan or Companion Loan, as the case may be, was not a Specially Serviced 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 100%
of each assumption application fee and each other fee for approving a transfer
of a Mortgaged Property or an interest in a Mortgagor, in each case actually
paid by a Mortgagor with respect to any assumption or substitution agreement
entered into by the Special Servicer on behalf of the Trust (or, in the case of
a Companion Loan, on behalf of the related Companion Loan Noteholder) pursuant
to Section 3.08(a) or paid by a Mortgagor with respect to any transfer of an
interest in a Mortgagor pursuant to Section 3.08(a), shall be retained by the
Master Servicer or promptly paid to the Master Servicer by the Special Servicer
and are not required to be deposited in the any Custodial Account; provided that
the Master Servicer's right to receive (pursuant to clause (i) of this sentence)
late payment charges and Default Interest shall be limited to the portion of
such items that have not been applied to pay interest on 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
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Excesses (except in the case of the Companion Loans); (ii) interest or other
income earned on deposits in the Custodial Accounts, 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, the Reserve Accounts and the Defeasance
Deposit Account 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 any of the Custodial Accounts 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 Loan and each REO Loan. As to each Specially Serviced
Loan and REO Loan, for any calendar month (or portion thereof), the Special
Servicing Fee shall: (i) accrue from time to time at the Special Servicing Fee
Rate on the Stated Principal Balance of such Specially Serviced Loan or REO Loan
as the case may be, outstanding immediately following the Distribution Date in
such calendar month; and (ii) be calculated on a 30/360 Basis (or, in the case
of a Companion Loan or related REO Loan, on an Actual /360 Basis) (or, in the
event that a Principal Prepayment in full or other Liquidation Event shall occur
with respect to a Specially Serviced 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 Loan or REO
Loan shall cease to accrue as of the date a Liquidation Event occurs in respect
thereof or it becomes a Corrected 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 appropriate Custodial Account pursuant to
Section 3.05(a) or Section 3.05A, as applicable.
In addition, with respect to each Corrected Loan, the Special
Servicer shall be entitled to receive the Workout Fee, unless the basis on which
any Mortgage Loan became a Corrected 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 any Controlling Class Certificateholder in connection with the
purchase of all the Mortgage Loans and any REO Properties in the Trust Fund
pursuant to Section 9.01 hereof. As to each Corrected 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
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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 Loan. The
Workout Fee with respect to any Corrected Loan will cease to be payable if such
Corrected Loan again becomes a Specially Serviced Loan or if the related
Mortgaged Property becomes an REO Property; provided that a new Workout Fee will
become payable if and when the particular Mortgage Loan or Companion Loan again
becomes a Corrected 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 and
Companion Loans that became Corrected 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 or Companion 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 Loan or REO Property as to which it receives any full,
partial or discounted payoff from the related Mortgagor or any Liquidation
Proceeds (other than in connection with the purchase of any such Specially
Serviced Loan or REO Property by a 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 a Controlling Class Certificateholder pursuant to Section
9.01, by the related Companion Loan Noteholder or its designee pursuant to the
related Co-Lender and Servicing Agreement, 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 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, partial or discounted
payoff and/or Liquidation Proceeds; provided that no Liquidation Fee shall be
payable with respect to any such Specially Serviced Loan that becomes a
Corrected 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 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 with respect to such Mortgage Loan.
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.
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(d) Additional special servicing compensation in the form of (i)
late payment charges or Default Interest actually collected on the Mortgage
Loans and Companion Loans that accrued with respect to a Specially Serviced Loan
or an REO Loan and (ii) all assumption fees, assumption application fees, other
fees payable for approving a transfer of a Mortgaged Property or an interest in
a Mortgagor and modification fees actually collected on the Mortgage Loans that
are not otherwise payable to the Master Servicer as additional servicing
compensation pursuant to Section 3.11(b), 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 any Custodial Account pursuant to
Section 3.04(a) or 3.04A(a); provided that the Special Servicer's right to
receive late payment charges and Default Interest pursuant to clause (i) of this
sentence 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
Loan or REO Property. The Special Servicer shall also be entitled to additional
special servicing compensation in the form of interest or other income earned on
deposits in any of the REO Accounts, if established, 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). 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 any of the Custodial Accounts or REO Accounts, and the
Special Servicer shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable after the
related Mortgage Loan or Companion Loan becomes a Specially Serviced Loan and
annually thereafter for so long as the related Mortgage Loan or Companion Loan
remains a Specially Serviced Loan, the cost of which shall be paid by the
Special Servicer and shall be reimbursable as a Servicing Advance. In addition,
the Special Servicer shall perform or cause to be performed a physical
inspection of each of the REO Properties at least once per calendar year, the
cost of which shall be paid by the Special Servicer and shall be reimbursable as
a Servicing Advance. Beginning in 2000, 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 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 Mortgaged Properties
securing Mortgage Loans (other than Credit Lease Loans) that have outstanding
principal balances of (or Mortgaged Properties having allocated loan amounts 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 Moody's
or S&P has downgraded below "BB+" (or
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the equivalent) or withdrawn its rating of the long-term senior unsecured debt
or similar obligations of the applicable Rated Party, the Master Servicer shall
promptly inspect the related Mortgaged Property and annually thereafter until
the above described ratings of the applicable Rated Party are again at least
"BB+"(or the equivalent) by Moody's or S&P, as the case may be. 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 and the Controlling Class
Representative upon request, subject to payment of a reasonable fee.
The Special Servicer, in the case of any Specially Serviced Loan and
REO Loan, and the Master Servicer, in the case of all other Mortgage Loans and
Companion 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 any 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, upon
request, 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 Loan
and REO Loan, and the Master Servicer with respect to each other Mortgage Loan
and Companion Loan, shall each prepare and maintain and forward to each other
one Operating Statement Analysis Report for each Mortgaged Property and REO
Property, as applicable. The Operating Statement Analysis Report 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 Report 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 Analysis Reports and NOI Adjustment
Worksheets are to be made available by the Master Servicer to the Trustee, the
Special Servicer or any 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 Loans and any REO Properties, providing the
required information as of the end of the preceding calendar month: (i) a CMSA
Property File Report; and (ii) a Comparative Financial Status Report. Not later
than 2:00 p.m. (New York City time) on the third Business Day prior to each
Distribution Date, the Special Servicer shall deliver or cause to be delivered
to the Master Servicer the following reports with respect to the Specially
Serviced Loans, any REO Properties and, to the extent that the subject
information relates to when they were Specially Serviced Loans, any Corrected
Loans: (i) a Delinquent Loan Status Report; (ii) a Loan Payoff Notification
Report; (iii) an Historical Liquidation Report; (iv) an Historical Loan
Modification Report; and (v) an REO Status Report.
(c) Not later than 1:00 p.m. (New York City time) on the second
Business Day prior to each Distribution Date, the Master Servicer shall deliver
or cause to be delivered to the Trustee, the Rating Agencies, the Special
Servicer and, upon request, any Controlling Class Certificateholder: (i) the
most recent Historical Loan Modification Report, Historical Liquidation Report
and REO Status Report received from the Special Servicer pursuant to Section
3.12(b); (ii) the most recent CMSA 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); and (iii) a Servicer Watch List 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), 4.03(d) and/or 4.03A(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,
any Controlling Class Certificateholder 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 3.12A. Delivery of Certain Reports to the Companion Loan
Noteholders.
(a) The Master Servicer and the Special Servicer shall each promptly
prepare or cause to be prepared and deliver to the applicable Companion Loan
Noteholder a written report, prepared in the manner set forth in Section 3.12,
of each such inspection performed by it with respect to the Century City
Mortgaged Property or the SunAmerica Mortgaged Property.
The Master Servicer shall promptly deliver to the applicable
Companion Loan Noteholder: (i) copies of operating statements and rent rolls;
(ii) upon request, annual NOI Adjustment Worksheets (with annual operating
statements as exhibits); and (iii) annual Operating Statement Analysis Reports,
in each case prepared, received or obtained by it pursuant to Section 3.12 with
respect to the Century City Mortgaged Property or the SunAmerica Mortgaged
Property.
(b) If the Century City Loan Pair or the SunAmerica Loan Pair, as
the case may be, constitute Specially Serviced Loans or the related Mortgaged
Property has become an REO Property, then each calendar month, not later than
1:00 p.m. (New York City time) on the later of the related Determination Date in
such month and the second Business Day prior to the related Loan Pair Remittance
Date in such month, the Special Servicer shall deliver or cause to be delivered
to the Master Servicer the following reports with respect to such Loan Pair
and/or the related Mortgaged Property, providing the required information as of
the end of the preceding calendar month: (i) a CMSA Property File Report (as
defined in the related Co-Lender and Servicing Agreement); and (ii) a
Comparative Financial Status Report (as defined in the related Co-Lender and
Servicing Agreement). If the Century City Loan Pair or the SunAmerica Loan Pair,
as the case may be, constitute Specially Serviced Loans or the related Mortgaged
Property has become an REO Property, then each calendar month, not later than
1:00 p.m. (New York City time) on the later of the related Determination Date in
such month and the second Business Day prior to the related Loan Pair Remittance
Date in such month, the Special Servicer shall deliver or cause to be delivered
to the Master Servicer such of the following reports as may be relevant with
respect to such Loan Pair: (i) a Delinquent Loan Status Report; (ii) an
Historical Liquidation Report; (iii) an Historical Loan Modification Report; and
(iv) an REO Status Report (each such report, for the purposes hereof, as defined
in the related Co-Lender and Servicing Agreement).
(c) Not later than 1:00 p.m. (New York City time) on the Business
Day prior to each applicable Loan Pair Remittance Date, the Master Servicer
shall prepare all such Servicing Reports (as defined in the related Co-Lender
and Servicing Agreement) as may be relevant and that are not otherwise required
to be prepared by the Special Servicer pursuant to Section 3.12A(b). 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 4.03A(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 3.12A(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer. The Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer pursuant to Section 3.12A(b). In the case of information or
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reports to be furnished by the Master Servicer to either Companion Loan
Noteholder pursuant to Section 3.12B(a), to the extent that such information is
based on reports to be provided by the Special Servicer pursuant to Section
3.12A(b) and to the extent that such reports are to be prepared and delivered by
the Special Servicer pursuant to Section 3.12A(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 3.12B(a) caused by the Special Servicer's failure to timely
provide any report required under Section 3.12A(b) of this Agreement.
(e) In addition to the foregoing, on the last Business Day of each
calendar month (commencing in October 1999), the Master Servicer shall notify
each Companion Loan Noteholder by facsimile transmission of the expected
remittance to be made thereto on the next succeeding Century City Remittance
Date or SunAmerica Remittance Date, as the case may be, and the Special Servicer
shall provide the Master Servicer, one Business Day prior to such last Business
Day, with such information in the Special Servicer's possession to allow the
Master Servicer to provide such notice to each Companion Loan Noteholder.
SECTION 3.12B Statements to Companion Loan Noteholders.
(a) On the Business Day prior to each applicable Loan Pair
Remittance Date, the Master Servicer shall forward to the applicable Companion
Loan Noteholder all Servicing Reports (as defined in the related Co-Lender and
Servicing Agreement) prepared with respect to the Century City Loan Pair or the
SunAmerica Loan Pair, as the case may be, pursuant to Section 3.12A, during the
calendar month in which such applicable Loan Pair Remittance Date occurs.
(b) The Master Servicer shall only be obligated to deliver the
statements, reports and information contemplated by Section 3.12B(a) to the
extent it receives the necessary underlying information from the Special
Servicer and shall not be liable for its failure to deliver such statements,
reports and information on the prescribed due dates, to the extent caused by the
failure of the Special Servicer to deliver timely such underlying information.
Nothing herein shall obligate the Master Servicer or the Special Servicer to
violate any applicable law prohibiting disclosure of information with respect to
the related Mortgagor, and the failure of the Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereunder.
Absent manifest error, neither the Master Servicer nor the Special
Servicer 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 or the Special Servicer, as applicable. Neither the Master Servicer nor
the Special Servicer shall have any obligation to verify the accuracy or
completeness of any information provided by a Mortgagor, a third party or each
other.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Rating Agencies, the Depositor, the Underwriter, each
Companion Loan Noteholder and each other,
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on or before April 30 of each year, beginning April 30, 2000 (or, as to any such
year, such earlier 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, 1999, 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 preceding calendar 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 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, shall be delivered
on or before March 15 of such following year.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 2000 (or, as
to any such year, such earlier 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 Rating
Agencies, the Depositor, the Underwriter, each Companion Loan Noteholder 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 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 required to file
a Form 10-K with the Commission in respect of the Trust covering any particular
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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,
shall be delivered on or before March 15 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, any
Certificateholder, each Companion Loan Noteholder and any Certificate Owner
(identified as such to the reasonable satisfaction of the Master Servicer or the
Special Servicer as the case may be), and to the OTS, the FDIC and any other
banking or insurance regulatory authority that may exercise authority over any
Certificateholder, Certificate Owner (identified as set forth above) or
Companion Loan Noteholder, access to any records regarding the Mortgage Loans
and the servicing thereof within its control (which access shall be limited, in
the case of any Companion Loan Noteholder or any regulatory authority seeking
such access in respect of a Companion Loan Noteholder, to records relating to
the related Companion Loan), 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 or a Companion Loan Noteholder. 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, Certificate Owner,
Companion Loan Noteholder or any regulatory authority that may exercise
authority over a Certificateholder, Certificate Owner or Companion Loan
Noteholder, the Master Servicer and the Special Servicer may each require
payment from such Certificateholder, Certificate Owner or Companion Noteholder
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 Accounts.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders and, in the case where such REO Property was previously a
Mortgaged Property securing a Companion Loan, on behalf of the related Companion
Loan Noteholder. The Special Servicer, on behalf of the Trust Fund, shall sell
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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 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 in
respect of any Mortgaged Property other than the SunAmerica Mortgaged Property
or the Century City Mortgaged Property, the Special Servicer shall establish and
maintain one or more accounts (collectively, the "Pool 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. If
such REO Acquisition occurs with respect to the SunAmerica Mortgaged Property or
the Century City Mortgaged Property, the Special Servicer shall establish an REO
Account solely with respect to such property (the "SunAmerica REO Account", in
the case of the SunAmerica Loan Pair, and the "Century City REO Account", in the
case of the Century City Loan Pair), to be held for the benefit of the
Certificateholders and the applicable Companion Loan Noteholder. The Pool REO
Account, the Century City REO Account and the SunAmerica REO Account shall each
be Eligible Accounts. The Special Servicer shall deposit, or cause to be
deposited, in the related REO Account, upon receipt, all REO Revenues, Insurance
Proceeds and Liquidation Proceeds received in respect of any REO Property. Funds
in an 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 an REO Account to
pay itself, as additional special servicing compensation in accordance with
Section 3.11(d), interest and investment income earned in respect of amounts
held in such REO Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to such REO Account for any
Collection Period). The Special Servicer shall give notice to the Trustee and
the Master Servicer of the location of each REO Account, and shall give notice
to each Companion Loan Noteholder of the location of the related REO Account, in
each case when first established and of the new location of any such REO Account
prior to any change thereof.
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(c) The Special Servicer shall withdraw from the related 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 each REO
Account and deposit into the corresponding Custodial Account (or deliver to the
Master Servicer or such other Person as may be designated by the Master Servicer
for deposit into the corresponding 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 an REO Account such portion of proceeds and collections in respect
of any related REO Property as may be necessary to maintain 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. The
Pool REO Account, the Century City REO Account and the SunAmerica REO Account
correspond to the Pool Custodial Account, the Century City Custodial Account and
the SunAmerica Custodial Account, respectively.
(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, each REO Account pursuant to Section 3.16(b) or (c).
The Special Servicer shall provide the Master Servicer any information with
respect to each 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, other
than the Century City Mortgaged Property or the SunAmerica 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
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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 Proposed Plan. After receiving the information described in the
preceding sentence from the REMIC Administrator, the Special Servicer
shall implement the Proposed Plan (after acquiring the respective
Mortgaged Property as REO Property), with any amendments required to be
made thereto as a result of the REMIC Administrator's tax reporting
position.
The Special Servicer's decision as to how each REO Property, other
than an REO Property that was formerly the Century City Mortgaged Property or
the SunAmerica Mortgaged Property, shall be managed and operated 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 reasonable 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, other than an REO Property that
was formerly the Century City Mortgaged Property or the SunAmerica Mortgaged
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 Pool REO
Account, to the extent of amounts on deposit therein with respect to any such
REO Property, funds necessary for the proper operation, management, maintenance
and disposition of such REO Property, including, without limitation:
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(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that 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.
To the extent that amounts on deposit in the Pool 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, other than REO
Property that was formerly the Century City Mortgaged Property or the SunAmerica
Mortgaged Property, provided that:
(i) the terms and conditions of any such contract shall 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 such 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 such 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
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Special Servicer of any of its duties and obligations hereunder with
respect to the operation and management of such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by any
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 3.17A Management and Disposition of the Century City
Mortgaged Property and the SunAmerica Mortgaged
Property After Becoming REO Property.
(a) If title to the Century City Mortgaged Property or the
SunAmerica Mortgaged Property is acquired hereunder on behalf of the Trustee (in
trust and for the benefit of the Certificateholders) and the related Companion
Loan Noteholders, the deed or certificate of sale shall be issued to the Trustee
on behalf of the Certificateholders and the related Companion Loan Noteholder.
In such case:
(i) the Special Servicer shall manage, conserve, protect and operate
the REO Property solely for the purpose of its prompt distribution and
sale in a manner that does not and will not cause the REO Property to fail
to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code, or result in the receipt by 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;
and
(ii) the Special Servicer, on behalf of the Trustee (in trust and
for the benefit of the Certificateholders) and the related Companion Loan
Noteholder, shall sell the Mortgaged Property by the end of the third
calendar year following the calendar year in which the ownership of the
REO Property was so acquired for purposes of Section 860G(a)(8) of the
Code.
(b) Subject to the foregoing, if title to the Century City Mortgaged
Property or the SunAmerica Mortgaged Property is acquired hereunder on behalf of
the Trustee (in trust and for the benefit of the Certificateholders) and the
related Companion Loan Noteholder, the Special Servicer shall have full power
and authority to do any and all things in connection with the operation,
management, maintenance and disposition of the REO Property as is consistent
with the Servicing Standard and shall withdraw from the related REO Account, to
the extent of amounts on deposit therein with respect to such REO Property,
funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including, without limitation:
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(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that 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.
To the extent that amounts on deposit in the related REO Account in respect of
any such 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 that was
formerly the Century City Mortgaged Property or the SunAmerica Mortgaged
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 netted
out of collections on the REO Property prior to their being remitted to
the Special Servicer) shall be reasonable and customary in consideration
of the nature and locality of the REO Property;
(iii) 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 the REO Property, including, without limitation, those
listed in Section 3.17A(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 3.17A(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 the
REO Property; and
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(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 the REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any such 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 3.17A(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 and, in the case of the SunAmerica Mortgage Loan or the Century
City Mortgage Loan, in Section 4.03 of the related Co-Lender and Servicing
Agreement.
(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 each
Controlling Class Certificateholder. Any Controlling Class Certificateholder
may, at its option (with priority among such Holders being given to the Holders
of Certificates representing the greater Percentage Interest in the Controlling
Class), 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 no Controlling
Class Certificateholder has purchased any such Defaulted Mortgage Loan within 10
Business Days after its receipt of such notice, then (i) for 5 Business Days
following the expiration of such 10 Business 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 Pool
Custodial Account; and the Trustee, upon receipt of an Officer's Certificate
from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the purchasing 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 such 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
purchasing Controlling Class Certificateholder. Notwithstanding the foregoing,
if any Defaulted Mortgage Loan purchased pursuant to this Section 3.18(b) is the
Century City Mortgage Loan or the SunAmerica Mortgage Loan, the release,
endorsement or assignment of the documents constituting the related Mortgage
File and Servicing File shall be in the manner contemplated by Section 3.28
hereof.
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(c) If no Controlling Class Certificateholder has purchased any
Defaulted Mortgage Loan within 10 Business 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 10 Business Day period and with
priority over the Controlling Class Certificateholders for the first 5 Business
Days following such 10 Business 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 deposited into
the Pool Custodial Account, and the Trustee, upon receipt of an Officer's
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. Notwithstanding the foregoing, if any Defaulted Mortgage Loan
purchased pursuant to this Section 3.18(c) is the Century City Mortgage Loan or
the SunAmerica Mortgage Loan, the release, endorsement or assignment of the
documents constituting the related Mortgage File and Servicing File shall be in
the manner contemplated by Section 3.28 hereof.
(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 Certificateholders (as a collective whole). 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. Notwithstanding the foregoing, if any Defaulted Mortgage Loan purchased
pursuant to this Section 3.18(d) is the Century City Mortgage Loan or the
SunAmerica Mortgage Loan, the release, endorsement or assignment of the
documents constituting the related Mortgage File and Servicing File shall be in
the manner contemplated by Section 3.28 hereof.
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.
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The Special Servicer shall give the Trustee and the Depositor 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 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
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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 Pool Custodial Account.
Any sale of a Defaulted Mortgage Loan or any REO Property shall be final and
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 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) (or, in the case of an REO Property
that relates to a Loan Pair, the best economic interests of the
Certificateholders and the applicable Companion Loan Noteholder (as a collective
whole)). In addition, 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) (or, in the case of an REO Property that relates to a Loan Pair, the best
economic interests of the Certificateholders and the applicable Companion Loan
Noteholder (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 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
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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; provided, however, that if any Prepayment Interest Shortfall
occurs as a result of the Master Servicer's allowing the Mortgagor to deviate
from the terms of the related Mortgage Loan documents regarding principal
prepayments, the Master Servicer shall be obligated to pay an amount equal to
the entire Prepayment Interest Shortfall with respect to such Mortgage Loan
without any limitation of the kind set forth in clauses (1) and (2) above.
(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) 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), 3.05A(a) and 3.03(d), as
applicable, 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 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.
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 and, in the case of a Companion Loan, the related
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Companion Loan Noteholder, agree to any modification, waiver or amendment of any
term of any Mortgage Loan or Companion 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 or Companion Loan other than a
Specially Serviced 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 or Companion 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 Companion 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 Servicer 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 with respect to the Mortgage Loans and Companion
Loans (other than Specially Serviced Loans):
(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;
(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, (D) relate to a Mortgage Loan
that represents 2% or more of the then aggregate principal balance of the
Mortgage Pool or (E) relate to a Companion Loan;
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(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, (B) the related Mortgage Loan does not
represent 2% or more of the then aggregate principal balance of the
Mortgage Pool and (C) neither the Century City Mortgaged Property nor the
SunAmerica Mortgaged Property is involved.
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 and, in the case of a
Companion Loan, the related Companion Loan Noteholder, shall not agree or
consent to any modification, waiver or amendment of any term of any Mortgage
Loan or Companion 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;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), 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;
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(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; or
(v) otherwise result in a tax to a Companion Loan Noteholder.
(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 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 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 Loan or (iv) accept a Principal Prepayment on any Specially Serviced
Loan during any Lockout Period; provided that (A) the related Mortgagor is in
monetary default or material non-monetary default with respect to the Specially
Serviced 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 (as a
collective whole) or, if a Loan Pair is involved, would increase the recovery on
such Loan Pair to Certificateholders and the applicable Companion Loan
Noteholder (as a collective whole), on a present value basis (the relevant
discounting of anticipated collections that will be distributable to the
Certificateholders (or, in the case of a Loan Pair, to Certificateholders and
the related Companion Loan Noteholder), to be performed at the related Mortgage
Rate (or, in the case of a Loan Pair, at the weighted average of the Mortgage
Rates for such Loan Pair)), (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 and (D)
otherwise result in a tax under the Code to a Companion Loan Noteholder.
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 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) (A) extend the maturity
date of a Mortgage Loan or Companion Loan beyond a date that is two years prior
to the Rated Final Distribution Date or (B) extend the maturity date of any
Mortgage Loan (other than the SunAmerica Mortgage Loan and the Century City
Mortgage Loan) for more than 3 one-year periods unless it receives confirmation
from DCR that on Adverse Rating Event would not occur as a result thereof, (ii)
extend the maturity date of any Mortgage Loan or Companion 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 or Companion Loan, as the case may be, is a
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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 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 one or more extensions at the then-existing Mortgage Rate
for such Mortgage Loan or Companion Loan, as the case may be, which extensions
shall not exceed three years in the aggregate (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 or Companion 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 or Companion Loan is
secured by a Ground Lease (but not the related fee interest), extend the
maturity date of such Mortgage Loan or Companion Loan, as the case may be,
beyond a date which is less than 10 years prior to the expiration of the term of
such Ground Lease; or (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.
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, in the case of a Loan Pair, the related Companion Loan
Noteholder) 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 Companion Loan or (2)
it has received prior written confirmation from the applicable Rating Agency or
Agencies as specified below that such action will not result in an Adverse
Rating Event:
(i) with respect to any Mortgaged Property that secures either (A) a
Companion Loan or (B) a Mortgage Loan with an unpaid principal balance
that is at least equal to (1) in the case of Moody's, the lesser of
$20,000,000 and 2% of the then aggregate principal balance of the Mortgage
Pool and (2) in the case of DCR, 5% 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; and
(ii) with respect to (A) each Companion Loan and (B) each Mortgage
Loan with an unpaid principal balance that is at least equal to (1) in the
case of Moody's, the lesser of $20,000,000 and 2% of the then aggregate
principal balance of the Mortgage Pool and (2) in the case of DCR, 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 (I)
the related Mortgagor or (II) the general partner(s), managing member(s),
shareholder(s), limited partner(s) or other equity
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owner(s) of the related Mortgagor or any other entity required to be a
single purpose entity in respect of such Mortgage Loan.
Any party hereto seeking Rating Agency confirmation with respect to the matters
described above shall deliver a Review Package to such Rating Agency.
(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 or Companion 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 or Companion 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, the Trustee and, where a Companion Loan is
affected, the related Companion Loan Noteholder, in writing, of any
modification, waiver or amendment of any term of any Mortgage Loan or Companion
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 or Companion 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.
(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, subject to the next paragraph and
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the related loan documents, (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
Moody's, 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 Moody's and, under the circumstances contemplated by the second following
paragraph, DCR that the acceptance of a pledge of the Defeasance Collateral in
lieu of a full prepayment will not result in an Adverse Rating Event, take such
further action as provided in such Mortgage Note to effectuate such defeasance,
including the purchase and perfection of the Defeasance Collateral on behalf of
the Trustee, as trustee for the registered holders of LB Commercial Mortgage
Trust 1999-C2, Commercial Mortgage Pass-Through Certificates, Series 1999-C2.
Notwithstanding the above, but subject to the related 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) all costs to be incurred in connection
with such defeasance (including Rating Agency fees, accountant's fees and costs
incurred in connection with any required opinions of counsel) would not be paid
by the related Mortgagor, or (iv) in the case of a Defeasance Loan that either
is a Companion Loan or has an unpaid principal balance at least equal to 2% of
the then aggregate principal balance of the Mortgage Pool, Moody's or, under the
circumstances contemplated in the next paragraph, DCR 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 an Adverse Rating
Event.
Furthermore, following any defeasance of a Defeasance Loan, the
Master Servicer shall forward a letter to DCR stating that in connection with
the exercise of the defeasance option by the Mortgagor under such Defeasance
Loan: (1) an independent accounting firm certified that the Defeasance
Collateral pledged by such Mortgagor would generate sufficient funds to satisfy
the obligation of such Mortgagor to make all scheduled payments under such
Defeasance Loan when due; (2) such Defeasance Loan is assumed by, and the
Defeasance Collateral is owned by, a Single Purpose Entity; and (3) counsel
acceptable to the Master Servicer delivered an opinion letter to the effect that
the Trustee, on behalf of the Trust and, in the case of a Loan Pair, the related
Companion Loan Noteholder, has a first priority, perfected security interest in
such Defeasance Collateral. In the event that the satisfaction of the foregoing
conditions is not provided for under the Mortgage Loan documents for a
Defeasance Loan, the Master Servicer shall take such action as is necessary to
obtain confirmation from each Rating Agency that the defeasance of such
Defeasance Loan would not result in an Adverse Rating Event. The foregoing
provisions of this paragraph notwithstanding, the Master Servicer shall not be
required to take any action contrary to the related loan documents.
All expenses related to the defeasance of a Defeasance Loan shall be
charged to the related Mortgagor or other responsible party.
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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 or Companion 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 or Companion 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 or Companion Loan
becoming a Specially Serviced 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 Loan in accordance with the
requirements hereof.
Upon determining that a Specially Serviced Loan has become a
Corrected Loan and if the Master Servicer is not also the Special Servicer, the
Special Servicer shall immediately give notice thereof, and shall within five
Business Days of such occurrence 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, 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 or Companion Loan, as applicable, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such
Mortgage Loan or Companion Loan, as applicable, shall terminate, and the
obligations of the Master Servicer to service and administer such Mortgage Loan
or Companion Loan, as applicable shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Loan, the Master Servicer and the
Special Servicer shall each transfer to the other, as and when applicable, the
servicing of all other Cross- Collateralized Mortgage Loans constituting part of
the same Cross-Collateralized Group; provided that no Cross-Collateralized
Mortgage Loan may become a Corrected Loan at anytime that a continuing Servicing
Transfer Event exists with respect to another Cross-Collateralized Mortgage Loan
in the same Cross-Collateralized Group.
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(b) In servicing any Specially Serviced 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
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 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 Loan and
REO Property during the related Collection Period, (4) in writing, a brief
narrative summary of the status of each Specially Serviced Loan and (5) such
additional information relating to the Specially Serviced 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 Loans and REO
Properties and shall provide the Special Servicer with any information
reasonably 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 Sections
7.01(a)(x) and (xi), provides for events of default with respect to the
Sub-Servicer substantially the same as those set forth in Section 7.01 (modified
as necessary to apply to the Sub-Servicer's obligations under the Sub-Servicing
Agreement); (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
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(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, and any affected Companion Loan
Noteholder shall each 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, the Special Servicer or any
affected Companion Loan Noteholder, 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 or Companion Loan serviced thereunder,
terminate at the time such Mortgage Loan or Companion Loan becomes a Specially
Serviced Loan (or, alternatively, be subject to the Special Servicer's rights to
service the Mortgage Loan or Companion Loan for so long as such Mortgage Loan or
Companion Loan continues to be a Specially Serviced Loan), and each
Sub-Servicing Agreement entered into by the Special Servicer shall relate only
to Specially Serviced Loans and shall terminate with respect to any such
Mortgage Loan or Companion Loan which ceases to be a Specially Serviced 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, to each Companion
Loan Noteholder, copies of any Sub-Servicing Agreement relating to the related
Companion Loan, as well as 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 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), 4.03(d) and 4.03A(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, the Depositor, the Controlling Class
Certificateholders and any affected Companion Loan Noteholder in writing
promptly of the appointment by it of any Sub-Servicer.
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(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
Fannie Mae or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders and, in the case of a Companion Loan,
also for the benefit of the related Companion Loan Noteholder, shall (at no
expense to the Trustee, the Certificateholders, any affected Companion Loan
Noteholder 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 or Companion
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 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) has occurred and is continuing, without paying any
sub-servicer termination fee, and in any additional manner provided for in such
Sub-Servicing Agreement.
The Sub-Servicing Agreements in effect or being negotiated as of the
Closing Date are listed on Exhibit K hereto.
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(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee, the
Certificateholders and the Companion Loan Noteholders 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, the
Companion Loans or REO Properties for which it is responsible.
SECTION 3.23. Representations and Warranties of the Master Servicer.
(a) The Master Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Master Servicer is a national banking association, duly
organized 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 other parties hereto and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Special Servicer is a limited liability company, validly
existing and in good standing under the laws of the State of Delaware, 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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(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 of the Master Servicer and the
Special Servicer.
The Master Servicer and the Special Servicer shall each take all
action reasonably necessary to assure that its computer-based systems deemed to
be "mission critical" to its business (including its performance of its
obligations hereunder) are able to operate and effectively process data
including dates on and after January 1, 2000. At the request of any party
hereto, the Master Servicer and the Special Servicer, as the case may be, shall
provide such requesting party with reasonable assurances of its year 2000
readiness.
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 or the Special Servicer to be year 2000 ready by January 1, 2000, the
sole remedy of the Trust, the Certificateholders, the Companion Loan Noteholders
and any other party hereto with respect to a breach on the part of the Master
Servicer or the Special Servicer to comply with this Section 3.25, as
applicable, shall be to terminate the defaulting party in accordance with the
applicable provisions of Article VII.
SECTION 3.26. Credit Leases.
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
prepare and file a "proof of loss" form 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. With respect to each Lease Enhancement Policy and Residual
Value Insurance Policy, the Master Servicer shall review and familiarize itself
with the terms and conditions relating to enforcement of claims and shall
monitor the dates by which any claim must be made or any action must be taken
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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 take
such action, consistent with the Servicing Standard.
The Master Servicer shall abide by the terms and conditions
precedent to payment of claims under the Lease Enhancement Policies and Residual
Value Insurance Policies and take all such action as may be required to comply
with the terms and provisions of such policies in order to maintain such
policies in full force and effect and to make claims thereunder.
The Master Servicer shall make a Servicing Advance with respect to a
Mortgaged Property subject to a Credit Lease in an amount equal to all such
funds as are necessary for the costs of maintenance or repair of a Mortgaged
Property or other obligation of the related Mortgagor to the extent the failure
to complete such maintenance or repair or other obligation may give rise to a
Maintenance Right or Additional Right of the related Tenant and provided that
the particular Servicing Advance would not, if made, constitute a Nonrecoverable
Servicing Advance. All such Servicing Advances shall be reimbursable from
collections from the related Mortgagor, the related Reserve Funds or excess cash
flow after scheduled debt service on the related Mortgage Loan or as may be
provided in the related Credit Lease or general collections on the Mortgage Pool
if so permitted by Section 3.05(a)(vii). Notwithstanding the foregoing, the
Master Servicer shall not make such Servicing Advance or take such action unless
the Master Servicer shall determine that such Advance or action would not result
in liability to the Master Servicer or the Trust under any applicable law or the
Mortgage Loan documents. The Master Servicer may consult with legal counsel in
making such determination, and the reasonable cost of such consultation shall be
covered by, and be reimbursable, as a Servicing Advance by the Master Servicer.
So long as the related Tenant is making its payments in an amount otherwise
sufficient to make the scheduled Monthly Payments under the Mortgage Loan and
the Master Servicer has not determined that such Servicing Advance plus interest
has or will become a Nonrecoverable Servicing Advance, the Master Servicer may
not transfer the Mortgage Loan to the Special Servicer under clause (c) of the
definition of "Specially Serviced Loan". The Master Servicer shall notify the
Special Servicer of any Credit Lease Loan in respect of which it has made
Servicing Advances pursuant to this Section 3.26. No costs incurred by the
Master Servicer in effecting the foregoing payments shall be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permits. The foregoing
shall in no way limit the Master Servicer's ability to charge and collect from
the Mortgagor or the related Tenant such costs, together with interest thereon.
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 Rating Agencies and the Trustee of such termination in
writing. Upon receipt of such notice, the Master Servicer shall 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 Master Servicer
and shall be reimbursable to it as a Trust Fund expense
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(to the extent not required to be paid, and not actually paid, by the related
Mortgagor under the applicable Mortgage Loan documents).
On each Determination Date, the Master Servicer shall deliver to the
Trustee and the Rating Agencies a report stating with respect to each Credit
Lease Loan as of a date no earlier than three Business Days prior to such
Determination Date: (i) all publicly available ratings of Moody's and S&P for
the related Rated Party as of the Closing Date, the immediately preceding
Determination Date (if any) and the date of such report; and (ii) whether the
related Rated Party has been placed on a "credit watch".
SECTION 3.27. Certain Required Consultations with the Companion Loan
Noteholders.
Notwithstanding anything to the contrary contained in this
Agreement, neither the Master Servicer nor the Special Servicer shall take any
of the following actions relating to any Loan Pair unless the Master Servicer or
the Special Servicer, as the case may be, has provided the related Companion
Loan Noteholder or its designee with written notice at least 10 Business Days
prior to the taking of such action and, upon request, has consulted with such
noteholder or its designee regarding whether such action is in accordance with
the Servicing Standard:
(i) any foreclosure upon or comparable conversion of the ownership
of the related Mortgaged Property;
(ii) any modification, amendment or waiver of a monetary term
(including, without limitation, the timing of payments) or any material
non-monetary term of the Companion Loan in such Loan Pair;
(iii) any proposed sale of the related REO Property;
(iv) any acceptance of a discounted payoff in respect of the
Companion Loan in such Loan Pair;
(v) any determination to bring the related Mortgaged Property into
compliance with applicable environmental laws or to otherwise address
Hazardous Materials located thereon;
(vi) any release of collateral for the Companion Loan in such Loan
Pair (other than in accordance with the terms of, or upon satisfaction of,
such Loan Pair);
(vii) any acceptance of substitute or additional collateral for the
Companion Loan in such Loan Pair;
(viii) any waiver of a "due-on-sale" or "due-on encumbrance" clause
under such Loan Pair; and
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(ix) any acceptance of an assumption agreement releasing the related
Mortgagor from liability under the Companion Loan in such Loan Pair;
provided that, if the Master Servicer or Special Servicer, as the case may be,
determines that immediate action is necessary to protect the interests of the
Trust and the related Companion Loan Noteholder, the Master Servicer or Special
Servicer, as the case may be, may take any such action prior to the expiration
of the aforementioned 10-Business Day period; and provided, further, that
neither the Master Servicer nor the Special Servicer shall have any obligation
to follow any advice of the related Companion Loan Noteholder or its designee.
SECTION 3.28. Certain Matters Regarding the Purchase of the Century
City Mortgage Loan and the SunAmerica Mortgage Loan.
If, pursuant to Section 2.03, Section 3.18 and Section 9.01, the
Century City Mortgage Loan or the SunAmerica Mortgage Loan is purchased or
repurchased from the Trust Fund, the purchaser thereof shall be bound by the
terms of the related Co-Lender and Servicing Agreement and shall assume the
rights and obligations of the "Class A Lender" under the related Co-Lender and
Servicing Agreement. All portions of the related Mortgage File and other
documents pertaining to such Mortgage Loan shall be endorsed or assigned to the
extent necessary or appropriate to the purchaser of such Mortgage Loan in its
capacity as "Class A Lender" (as a result of such purchase or repurchase) under
the related Co-Lender and Servicing Agreement in the manner contemplated under
such agreement, which such purchaser shall be deemed to acknowledge. Thereafter
such Mortgage File shall be held by the custodian under such Co-Lender and
Servicing Agreement for the benefit of the "Class A Lender" and the "Class B
Lender" as their interests appear under such agreement. The related Servicing
File shall be delivered to the master servicer or special servicer, as the case
may be, under the related Co-Lender and Servicing Agreement.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date prior to the Final Distribution Date,
the Trustee shall, based upon 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 to make distributions
in respect of the Senior Certificates, 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 Senior Certificates, up to an amount equal to, and pro rata as
among such Classes 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, if any;
(ii) to distributions of principal to the Holders of the Class A-1
and Class A-2 Certificates, allocable as between such Classes of
Certificateholders as provided below, up to an amount (not to exceed the
aggregate Class Principal Balance of such Classes of Certificates
outstanding prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date; and
(iii) to distributions to the Holders of the Class A-1 and Class A-2
Certificates, up to an amount equal to, pro rata as between such Classes
of Certificateholders 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.
On each Distribution Date prior to the earlier of (i) the Class A
Principal Distribution Cross-Over Date and (ii) the Final Distribution Date, the
Trustee shall pay the distributions of principal made on the Class A-1 and Class
A-2 Certificates pursuant to clause (ii) above, first, to the Holders of the
Class A-1 Certificates, until the Class Principal Balance of such Class has been
reduced to zero, and thereafter, to the Holders of the Class A-2 Certificates,
until the Class Principal Balance of such Class has been reduced to zero. On any
Distribution Date coinciding with or following the Class A Principal
Distribution Cross-Over Date, but prior to the Final Distribution Date, the
Trustee shall pay the distributions of principal made on the Class A-1 and Class
A-2 Certificates pursuant to clause (ii) above to the Holders of both the Class
A-1 Certificates and the Class A-2 Certificates, on a pro rata basis, in
accordance with the respective Class Principal Balances of such Classes
outstanding immediately prior to such Distribution Date, until the Class
Principal Balance of each such Class has been reduced to zero.
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All distributions of interest made in respect of the Class X
Certificates on any Distribution Date pursuant to clause (i) above shall be
deemed to have been made in respect of the various Components 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 paragraph, 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:
(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));
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(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 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;
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(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;
(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));
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(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 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;
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(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;
(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));
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(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 distributions of interest to the Holders of the Class P
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;
(xxxviii) after the Class Principal Balance of the Class N
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class P 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));
(xxxix) to distributions to the Holders of the Class P 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;
(xl) 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)(xxxix) above;
(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 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)(xli) 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 (other than an REO Loan that relates to a Companion Loan) during the
related Collection Period that represents Net
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Prepayment Consideration and shall distribute such Net Prepayment Consideration
to the Holders of the respective Classes of Principal Balance Certificates
(other than any Excluded Class) entitled to distributions of principal pursuant
to Section 4.01(a) or Section 4.01(b) on such Distribution Date, up to an amount
equal to, and pro rata based on, the respective Prepayment Consideration
Entitlements for such Classes of Certificates for such Distribution Date.
Any Net Prepayment Consideration not otherwise distributed in
respect of the Principal Balance Certificates pursuant to the foregoing
paragraph 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 Mortgage Loans and any successor REO Loans during the
related Collection Period and shall distribute such amounts among the Holders of
the Class P Certificates.
(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 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, in
the case of the Class P Certificates, 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
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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 future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Class of Certificates, but taking into account, in the case of
the Class P Certificates, 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.
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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.
(j) All distributions made in respect of each Class of Principal
Balance Certificates on each Distribution Date (including the Final 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, respectively, 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
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
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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 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
(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; CMSA Loan Periodic
Update File Report.
(a) On each Distribution Date, the Trustee shall provide or make
available electronically to the Depositor, the Underwriter, the Master Servicer,
the Special Servicer, the Controlling Class Representative, each Rating Agency,
the Holders of each Class of 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,
substantially in the form attached hereto as Exhibit B (a "Distribution Date
Statement"), based on information provided to it by the Master Servicer and the
Special Servicer, setting forth:
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(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 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) (or 4.03A(a) in the
case of the Century City Mortgage Loan or the SunAmerica Mortgage Loan);
(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) or 4.03A 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, (D) as to which foreclosure
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proceedings have been commenced, and (E) as to which, to the knowledge of
the Master Servicer or the Special Servicer, as applicable, bankruptcy
proceedings have commenced in respect of the related Mortgagor;
(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
or bankruptcy 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 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) and, if available, the Appraised Value
of such REO Property as expressed in the most recent appraisal thereof and
the date of such appraisal;
(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), (D) the amount of any Realized Loss in respect of the
related REO Loan in connection with such
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Final Recovery Determination and (E), if available, the Appraised Value of
such REO Property as expressed in the most recent appraisal thereof and
the date of such appraisal;
(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 for such Distribution Date,
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);
(xx) the aggregate of all Realized Losses incurred during the
related Collection Period and from the Closing Date and all Additional
Trust Fund Expenses (with a description thereof) incurred during the
related Collection Period and from the Closing Date;
(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),
Section 4.03(d) and/or Section 4.03A(d);
(xxv) (A) the loan number for each Required Appraisal Loan and any
related Appraisal Reduction Amount (including an itemized calculation
thereof) as of the related
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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, if any, for each
Class of Regular Interest Certificates;
(xxix) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected (A) during the related Collection Period and
(B) since the Closing Date;
(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; and
(xxxi) 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.
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.
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
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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 Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor, a third
party or each other.
The Trustee shall forward a copy of each Distribution Date Statement
by mail to the Depository. The Trustee shall make available each month, to
Certificateholders, Certificate Owners, the Underwriter, the Rating Agencies,
prospective investors and any other interested party, via the Trustee's internet
website, all Distribution Date Statements, Mortgage Pool Data Update Reports,
Unrestricted Servicer Reports, CMSA Loan Periodic Update Files and CMSA loan
setup files and any additional files containing substantially similar
information in an alternative format and, with the consent or at the direction
of the Depositor, such other information regarding the Certificates and/or the
Mortgage Loans as the Trustee may have in its possession; provided that, unless:
(i) the particular report or information has been filed with the Commission
pursuant to Section 8.15; (ii) the Depositor consents otherwise; or (iii) the
Depositor has notified the Trustee that the Underwriter has sold the
Non-Registered Certificates to unaffiliated third parties, access to such
reports and information on the Trustee's internet website will be
password-protected to the same extent, and limited to the same Persons, as the
Restricted Servicer Reports. The Trustee shall also make the Distribution Date
Statement available via its electronic bulletin board and its ASAP System;
provided that the Trustee shall have received the notice from the Depositor
contemplated in the preceding sentence regarding the sale of the Non-Registered
Certificates. The Trustee shall make the Restricted Servicer Reports and CMSA
Property File Reports available each month, via the Trustee's internet website,
to any Certificateholder, Certificate Owner, any Person identified by any
Certificateholder or Certificate Owner as a prospective transferee of a
Certificate or interest therein, the Underwriter, any Rating Agency, the
Controlling Class Representative or any party hereto, with the use of a password
provided by the Trustee to such person upon receipt by the Trustee from such
Person of a certification substantially in the form of Exhibit W-1 or Exhibit
W-2; provided, however, that the Trustee shall provide such password to each
party hereto, each Certificateholder, the Controlling Class Representative, the
Underwriter and each Rating Agency without requiring such certification. In
addition, the Trustee is hereby directed and authorized to make available, as a
convenience to interested parties (and not in furtherance of the distribution of
the Prospectus or the Prospectus Supplement under the securities laws), this
Agreement, the Prospectus and the Prospectus Supplement via the Trustee's
internet website. The Trustee will make no representations or warranties as to
the accuracy or completeness of such documents and will assume no responsibility
therefor.
The Trustee's internet website shall be located at www.lnbabs.com or
at such other address as shall be specified by the Trustee from time to time in
the Distribution Date Statement and in one or more written notices delivered to
the other parties hereto, the Controlling Class Representative (if any), the
Certificateholders and the Rating Agencies. In connection with providing access
to the Trustee's internet website, the Trustee may require registration and the
acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement. With the prior
written consent of the Depositor and subject to any conditions the Depositor may
impose in connection with granting such consent, the Master Servicer
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may, but is not required to, make available each month, the Distribution Date
Statement, the Unrestricted Servicer Reports, the Restricted Servicer Reports,
the CMSA Loan Periodic Update File Report, the CMSA loan setup file, the CMSA
Property File Report, the Prospectus and/or the Prospectus Supplement on its
internet website. In connection with providing access to the Master Servicer's
internet website, the Master Servicer may require registration and the
acceptance of a disclaimer on its internet website.
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
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 make available
electronically or, if so requested, forward by hard copy, to (i) the Trepp Group
(at 477 Madison Avenue, 18th Floor, New York, New York 10022 or such other
address as the Trepp Group may designate), (ii) Intex Solutions, Inc. (at 35
Highland Circle, Needham, Massachusetts 02194, or such other address as Intex
Solutions, Inc. may hereafter designate) and (iii) Charter Research Corporation
(at 262 Washington Street, Boston, Massachusetts 02108, or such other address as
Charter Research Corporation may hereafter designate), a copy of the reports
forwarded to the Holders of the Certificates on such Distribution Date as
described above.
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.
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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.
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 1:00 p.m. (New York City time) on the second
Business Day prior to each Distribution 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 CMSA Loan Periodic Update File Report providing the required
information for the Mortgage Loans as of the related 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 CMSA Loan
Periodic Update 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
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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 CMSA
Loan Periodic Update 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 CMSA
Loan Periodic Update File Report.
SECTION 4.03. P&I Advances.
(a) On or before 2:00 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
in respect of the Mortgage Pool (other than the Century City Mortgage Loan, the
SunAmerica Mortgage Loan or any related REO Loans), first, by transferring to
the Trustee for deposit in the Collection Account amounts then held in the Pool
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 Pool
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 Pool 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)
593-7735 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone no. (704) 593-7821 (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, pursuant to
Section 4.03(a) 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
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delinquent as to their respective Balloon Payments) and any REO Loans in the
Mortgage Pool (exclusive of the Century City Mortgage Loan, the SunAmerica
Mortgage Loan or any related 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 such Mortgage Loan or REO Loan,
then, in the event of subsequent delinquencies thereon, the amount of each P&I
Advance, if any, required to be made in respect of such Mortgage Loan or REO
Loan, as the case may be, during the period that such Appraisal Reduction Amount
continues to exist, shall be reduced to equal the product of (x) the amount 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 or REO Loan, as the case may be,
net of such Appraisal Reduction Amount, and the denominator of which is equal to
the Stated Principal Balance of such Mortgage Loan or REO Loan, as the case may
be; 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, Class E or Class F 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 pursuant to this Section 4.03 on any particular
Distribution Date, in which case each P&I Advance that would otherwise be made
pursuant to this Section 4.03 on the related P&I Advance Date will be reduced by
that portion thereof (calculated as described in the next sentence) 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, Class E or Class F
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 to be made pursuant to this
Section 4.03 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 to be made pursuant to this
Section 4.03 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, 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 (without regard to such election), and the denominator of which is equal to
the entire Principal Distribution Amount for such Distribution Date (without
regard to such election); provided that such reductions in the P&I Advances to
be made pursuant to this Section 4.03 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
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4.01(b); and provided, further, that no such reductions in any P&I Advance to be
made pursuant to this Section 4.03 shall be in addition to the reduction therein
caused by an Appraisal Reduction Amount for the related Mortgage Loan or REO
Loan, but rather the applicable reduction to such P&I Advance shall equal the
greater of the reduction resulting from such election and the reduction
resulting from such Appraisal Reduction Amount.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03 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 Officer's 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. If, in connection
with the foregoing, it is necessary for the Master Servicer to obtain an
appraisal, the Master Servicer shall so notify the Special Servicer and consult
with the Special Servicer regarding such appraisal. 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 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 under this Section 4.03 (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 not before 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 Pool 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 under this Section 4.03 as soon as practicable after funds available for
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such purpose are deposited in the Pool 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.
SECTION 4.03A P&I Advances on the Loan Pairs.
(a) On or before 2:00 p.m., New York City time, on each Century City
Remittance Date and each SunAmerica Remittance Date, the Master Servicer shall,
subject to Section 4.03A(c) below, satisfy its obligations to make a P&I Advance
with respect to such Century City Remittance Date or SunAmerica Remittance Date,
as the case may be, in respect of the applicable Loan Pair by depositing into
the related Custodial Account, out of amounts held in such Custodial Account for
future distribution (subject to replacement of such amounts by the following
related Loan Pair Remittance Date) and, if such amounts are insufficient, then
out of its own funds, the amount of such P&I Advance required to be 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 4.03A(a) in respect of the Century City Mortgage Loan or the
SunAmerica Mortgage Loan on the preceding related Loan Pair Remittance Date (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) 593-
7735 (or such alternative number provided by the Master Servicer to the Trustee
in writing) and by telephone at telephone no. (704) 593-7821 (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 Advance(s) 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 in respect of the
Century City Mortgage Loan or the SunAmerica Mortgage Loan on the preceding
related Loan Pair Remittance 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 amount of the P&I Advance to be made by the Master Servicer
in respect of any Loan Pair on any related Loan Pair Remittance Date shall,
subject to Section 4.03A(c) below, equal the amount of the aggregate Monthly
Payment on that Loan Pair, net of related Master Servicing Fees and any related
Workout Fees, due (or, if the Mortgaged Property has become an REO Property,
deemed due) in respect of that Loan Pair on their Due Date during the related
Collection Period, but only to the extent that such amount was not paid by or on
behalf of the Mortgagor or otherwise collected (including received as net income
from the Mortgaged Property after it has become an REO Property) 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 that Loan
Pair, then, in the event of subsequent delinquencies on such Loan Pair, each P&I
Advance, if any, required to be made in respect of such Loan Pair during the
period that such Appraisal Reduction Amount continues to exist, shall be reduced
to equal the product of (i) the amount of the
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subject P&I Advance that would otherwise be required in respect of the Mortgage
Loans without regard to this proviso, multiplied by (ii) a fraction, the
numerator of which is equal to the aggregate Stated Principal Balance of such
Loan Pair, net of the Appraisal Reduction Amount as of the related Determination
Date, and the denominator of which is equal to the aggregate Stated Principal
Balance of such Loan Pair; and provided, further, that any reduction in the P&I
Advance to be made on any Remittance Date in accordance with the immediately
preceding proviso shall be allocable, first, against the portion of the
delinquent Monthly Payment allocable to the Companion Loan in such Loan Pair,
and, then, against the portion of the delinquent Monthly Payment allocable to
the Mortgage Loan in such Loan Pair. Notwithstanding the foregoing, at the
request of the related Companion Loan Noteholder, the Master Servicer shall
cease making P&I Advances in respect of such Companion Loan (i.e., the Master
Servicer shall not advance the portion of the delinquent Monthly Payment
allocable to such Companion Loan) until such time as the related Companion Loan
Noteholder requests that such P&I Advances again commence (each such request to
be made at least five (5) Business Days prior to the date on which the P&I
Advance would otherwise be made).
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03A if such P&I Advance would,
if made, constitute a Nonrecoverable P&I Advance. The determination by the
Master Servicer that any proposed P&I Advance, if made, would constitute a
Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate
delivered to the Trustee and the Companion Loan Noteholder for the affected
Companion Loan on or before the related Loan Pair Remittance Date, setting forth
the basis for such determination, together with any other information that
supports such determination, including an appraisal (which appraisal shall be an
expense payable out of the related Custodial Account 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), Mortgagor operating statements and financial statements,
budgets and rent rolls of the Mortgaged Property (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 that support such
determination by the Master Servicer. If, in connection with the foregoing, it
is necessary for the Master Servicer to obtain an appraisal, the Master Servicer
shall so notify the Special Servicer and consult with the Special Servicer
regarding such appraisal. The Trustee and the Fiscal Agent shall be entitled to
rely, conclusively, on any determination by the Master Servicer that a P&I
Advance to be made in respect of the Century City Mortgage Loan or the
SunAmerica Mortgage Loan, if made, would be a Nonrecoverable Advance; provided,
however, that if the Master Servicer has failed to make such 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 shall make such
Advance within the time periods required by Section 4.03A(a) unless the Trustee
or the Fiscal Agent, in good faith, makes a determination prior to the times
specified in Section 4.03A(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.
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(d) Subject to the next sentence, the Master Servicer shall 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 under this Section 4.03A (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
Companion 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 for such Collection
Period are insufficient, but not before the related Advance has been reimbursed
pursuant to this Agreement, out of any other collections on deposit in any
Custodial Account. The Master Servicer shall, in accordance with Section
3.05A(a), reimburse itself for any outstanding P&I Advance made thereby under
this Section 4.03A as soon as practicable after funds available for such purpose
are deposited in any Custodial Account, and in no event shall interest accrue in
accordance with this Section 4.03A(d) on any P&I Advance for any related Loan
Pair Remittance Date as to which the corresponding Late Collection was received
as of such related Loan Pair Remittance Date.
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 P, 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 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 P, 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
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(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 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 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 G and Class H 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
Class A-1, Class A-2, Class B, Class C, Class D, Class E and Class F
Certificates, $250,000 in the case of the Class X Certificates, and $250,000 in
the case of the remaining Regular 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.
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)
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as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The offices of the
Trustee responsible for its duties as initial Certificate Register shall be
located, as of the Closing Date, at 135 South LaSalle, Suite 1625, Chicago,
Illinois 60603, Attention: Asset-Backed Securities Trust Services Group--LB
Commercial Mortgage Trust, Series 1999-C2. 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 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
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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 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
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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, Class E or Class F 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.
(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
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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 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
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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 pursuant to this subsection (d)(iii) and
Section 10.01(h)(i).
(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 an Adverse Rating Event; and
(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
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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.
(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) The Class A-1, Class A-2, Class B, Class C, Class D, Class E,
Class F, Class X, Class G and Class H 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
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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 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.
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(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.
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
or the Companion 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 an Adverse Rating Event, 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, the
Certificateholders or the Companion Loan Noteholders 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, or protect the Master Servicer or the
Special Servicer against any liability to the Companion Loan Noteholders, 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 loss, liability or reasonable expense (including legal fees and
expenses) incurred in connection with any legal action or claim relating to this
Agreement or the Certificates (including in connection with the dissemination of
information and reports as contemplated by this Agreement), other than any such
loss, liability or expense: (i) specifically required to be borne by such party
without right of reimbursement pursuant to the terms hereof; (ii) which
constitutes a Servicing Advance that is otherwise reimbursable hereunder; (iii)
incurred in connection with any breach on the part of the party seeking
indemnification of a representation, warranty or covenant made herein; or (iv)
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, and 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 interests of the Companion Loan Noteholders. In such event, other
than with respect to a Loan Pair and/or the related Companion Loan Noteholder,
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 Pool Custodial Account as provided in Section 3.05;
and, if a Loan Pair and/or the related Companion Loan Noteholder is involved,
such expenses, costs and liabilities shall be the expenses, costs and
liabilities of the related Custodial Account, payable therefrom pursuant to
Section 3.05A. In no
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event shall the Master Servicer or the Special Servicer be liable or responsible
for any action taken or omitted to be taken by the other of them (unless they
are the same Person or Affiliates) or by the Depositor, the Trustee, any
Certificateholder or any Companion Loan Noteholder, 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 reasonably
acceptable to the Depositor has been found (provided that if the Depositor has
not responded to a request for consent to a successor within 15 days, such
successor shall be deemed approved thereby), (ii) each of the Rating Agencies
confirms in writing that the successor's appointment will not result in an
Adverse Rating Event, (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 and agrees in writing to be bound by
the terms and conditions of this Agreement. 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, Trustee and Companion Loan
Noteholders in Respect of Master Servicer and the
Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, the Underwriter, the Trustee and each Companion Loan Noteholder, upon
reasonable notice, during
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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, the
Trustee and each Companion Loan Noteholder with its most recent publicly
available financial statements and such 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, Trustee and Companion
Loan Noteholder to Cooperate with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish (and each Companion Loan Noteholder, pursuant to the terms of the
related Co-Lender and Servicing Agreement, is obligated to furnish the Master
Servicer) 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, Trustee and Companion Loan
Noteholder to Cooperate with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish (and each Companion Loan Noteholder, pursuant to the terms of the
related Co-Lender and Servicing Agreement, is obligated to furnish the Special
Servicer) such reports, certifications and information as are reasonably
requested by the Special Servicer in order to enable it to perform its duties
hereunder.
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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 (including in connection with termination pursuant
to Section 7.01) 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 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, each Companion Loan Noteholder 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 an
Adverse Rating Event; (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 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 any Custodial Account or any REO
Account or should have been delivered to the Master Servicer or that are
thereafter received with respect to Specially Serviced Loans and REO Properties.
The Trustee shall notify the other parties hereto, the Certificateholders and
the Companion Loan Noteholders of any termination of the Special Servicer and
appointment of a new Special Servicer in accordance with this Section 6.09.
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(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.
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
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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
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 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;
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders (as a
collective whole) or, in the case of the Century City Loan Pair or the
SunAmerica Loan Pair, to protect the interests of the Certificateholders and the
related Companion Loan Noteholder (as a collective whole), the Special Servicer
may take any such action without waiting for the Controlling Class
Representative's response.
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 subject to Section 6.11(b). 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
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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 (and, in the case of the Century City
Mortgage Loan, the SunAmerica Mortgage Loan or any Companion Loan, the related
Companion Loan Noteholder) of any release or substitution of collateral for a
Mortgage Loan (or Companion Loan) even if such release or substitution is in
accordance with such Mortgage Loan (or Companion Loan).
(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 or Companion Loan Noteholders 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.
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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 a Custodial
Account, any amount, including a P&I Advance, required to be so deposited
or remitted by it under this Agreement, which failure continues unremedied
for one Business Day following the date on which a deposit or remittance
was first required to be made; or
(ii) any failure by the Special Servicer to deposit into an REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, a Custodial Account, any amount required to be so deposited or
remitted under this Agreement, which failure continues unremedied for one
Business Day following the date on which a deposit or remittance was first
required to be made; 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 any failure by the Master Servicer to make
the required payments (including any P&I Payments) to the Companion Loan
Noteholders on any Loan Pair Remittance 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 a Companion Loan Noteholder; 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 (15 days in the case of
payment of insurance premiums) 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 a Companion
Loan Noteholder or the Holders of Certificates entitled to at least 25% of
the Voting Rights, provided, however, that with respect to any such
failure which is not curable within such 30- day period, the Master
Servicer or the Special Servicer, as the case may be,
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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 and each Companion Loan Noteholder
with an Officer's Certificate certifying that it has diligently pursued,
and is continuing to pursue, a full cure; or
(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 or either Companion Loan Noteholder 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 a Companion Loan Noteholder or 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 breach within the initial 30-day period and provided the
Trustee and each Companion Loan Noteholder 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 (or the securities backed by any Companion Loan then serviced
and administered hereunder) has been qualified (in the case of ratings
assigned by Moody's), downgraded or withdrawn, or
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otherwise made the subject of a "negative" credit watch, which such Rating
Agency has determined, and given notice in writing (including through a
publication or newsletter) or electronically (including through an
internet website), is solely or in material part a result of the Master
Servicer or Special Servicer, as the case may be, acting in such capacity;
or
(xi) the receipt by the Trustee of notice from either Rating Agency
to the effect that 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 and
such failure to be so "approved" shall cause an Adverse Rating Event or
cause the Certificates (or the securities backed by any Companion Loan
then serviced and administered hereunder) to be made the subject of a
"negative" credit watch unless an approved servicer is substituted
therefor.
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 or, to the extent that it is affected by such
Event of Default, a Companion Loan Noteholder, 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, subject to Section 7.01(d), 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,
subject to Section 7.01(d), 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 within 30 days following the occurrence
of such Event of Default. 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), the Mortgage Loans, the Companion 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, the Companion
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
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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 a
Custodial Account, the Collection Account, the Defeasance Deposit 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 Companion 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 an REO Account, a 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 Loan,
Companion 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. 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 Corporate Trust Office 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.
(c) If the Master Servicer is terminated solely due to an Event of
Default under Section 7.01(a)(x) or (xi), and if the terminated Master Servicer
provides the Trustee with the appropriate "request for proposal" materials
within the five Business Days after such termination, then the Trustee shall
promptly thereafter (using such "request for proposal" materials provided by the
terminated Master Servicer) solicit good faith bids for the rights to master
service the Mortgage Loans under this Agreement from at least three (3) Persons
qualified to act as Master Servicer hereunder in accordance with Sections 6.02
and 7.02 (any such Person so qualified, a "Qualified Bidder") or, if three (3)
Qualified Bidders cannot be located, then from as many Persons as the Trustee
can determine are Qualified Bidders; provided that, at the Trustee's request,
the terminated Master Servicer shall supply the Trustee with the names of
Persons from whom to solicit such bids; and provided, further, that the Trustee
shall not be responsible if less than three (3) or no Qualified Bidders submit
bids for the right to master service the Mortgage Loans under this Agreement.
The bid proposal shall require any Successful Bidder (as defined below), as a
condition of such bid, to enter into this Agreement as successor Master
Servicer, and to agree to be bound by the terms hereof,
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within 45 days after the termination of Master Servicer. The Trustee shall
solicit bids (i) on the basis of such successor Master Servicer retaining all
Sub-Servicers to continue the primary servicing of the Mortgage Loans pursuant
to the terms of the respective Sub-Servicing Agreements and to enter into a
Sub-Servicing Agreement with the terminated Master Servicer to service each of
the Mortgage Loans not subject to a Sub-Servicing Agreement at a servicing fee
rate per annum equal to the Master Servicing Fee Rate minus five basis points
per Mortgage Loan serviced (each, a "Servicing-Retained Bid") and (ii) on the
basis of terminating each Sub-Servicing Agreement and Sub-Servicer that it is
permitted to terminate in accordance with Section 3.22 (each, a
"Servicing-Released Bid"). The Trustee shall select the Qualified Bidder with
the highest cash Servicing-Retained Bid (or, if none, the highest cash Servicing
Released Bid) (the "Successful Bidder") to act as successor Master Servicer
hereunder. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Master Servicer pursuant to the terms hereof (and, if the
successful bid was a Servicing- Retained Bid, to enter into a Sub-Servicing
Agreement with the terminated Master Servicer as contemplated above) no later
than 45 days after the termination of the Master Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out of pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the Trustee was appointed as
successor Master Servicer or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer shall reimburse the Trustee for
all reasonable "out-of-pocket" expenses incurred by the Trustee in connection
with such bid process and the Trustee shall have no further obligations under
this Section 7.01(c). The Trustee thereafter may act or may select a successor
to act as Master Servicer hereunder in accordance with Section 7.02.
(d) Notwithstanding Section 7.01(b), if any Event of Default occurs
that affects only a Companion Loan or the securities backed thereby, and no
Mortgage Loan or the Certificates are affected by such Event of Default, then,
instead of terminating the Master Servicer in accordance with Section 7.01(b),
the Trustee shall require the Master Servicer to appoint, within 30 days of the
Trustee's request, a Sub-Servicer (or, if such Loan Pair is currently being
sub-serviced, to replace, within 30 days of the Trustee's request, the
then-current Sub-Servicer with a new Sub-Servicer) with respect to the related
Loan Pair. In connection with the Master Servicer's appointment of a
Sub-Servicer at the request of the Trustee in accordance with this Section
7.01(d), the Master Servicer shall obtain written confirmation from each Rating
Agency that such appointment will not result in an Adverse Rating Event. The
related Sub-Servicing Agreement shall provide that any Sub- Servicer appointed
by the Master Servicer at the request of the Trustee in accordance with this
Section 7.01(d) shall be responsible for all duties, and shall be entitled to
all compensation, of the Master Servicer under this Agreement and the related
Co-Lender and Servicing Agreement with respect to the related Loan Pair, except
that the Master Servicer shall be entitled to retain a portion of the Master
Servicing Fee for the Mortgage Loan in such Loan Pair calculated at 0.05% per
annum.
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Such Sub-Servicing Agreement shall also provide that such Sub-Servicer shall
become the master servicer under the related Co-Lender and Servicing Agreement
in the event that the related Loan Pair is ever again serviced and administered
thereunder. Furthermore, such Sub-Servicer may not be terminated except for
cause and shall otherwise meet the requirements of Section 3.22. If any Sub-
Servicer appointed by the Master Servicer at the request of the Trustee in
accordance with this Section 7.01(d) shall at any time resign or be terminated,
the Master Servicer shall be required to promptly appoint a substitute
Sub-Servicer, which appointment shall not result in an Adverse Rating Event (as
evidenced in writing by each Rating Agency).
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 and until a successor is appointed
pursuant to Section 6.04 or Section 7.01(c), 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 or
Companion 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 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
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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 and
Companion Loans as it and such successor shall agree, subject to the terms
hereof and in the related Co-Lender and Servicing Agreement limiting the use of
funds received in respect of a Loan Pair to matters related to such Loan Pair;
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 and to each
Companion Loan Noteholder.
(b) Not later than 10 days after a Responsible Officer of the
Trustee has notice of the occurrence of any event which constitutes or, with
notice or lapse of time or both, would constitute an Event of Default, the
Trustee shall transmit by mail to the Depositor, all the Certificateholders,
each Companion Loan Certificateholder 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, together with any Companion Loan Noteholder affected by such Event of
Default, 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, together
with any Companion Loan Noteholder affected by such Event of Default. Upon any
such waiver of an Event of Default, such Event of Default shall cease to exist
and shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
Voting Rights with respect to the matters described above.
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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 and on behalf of any Companion Loan Noteholder, 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 and the Companion Loan
Noteholders (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
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;
(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;
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(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, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or, 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 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;
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(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 and
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 Section 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,
or any funds deposited in or withdrawn from a 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.
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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 and
by 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 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 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.
(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.
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(d) The Trustee shall indemnify and hold harmless the Trust Fund
against any losses arising out of any errors made solely by the Trustee in
calculating distributions to be made hereunder and any other calculation or
reporting hereunder (in each case not attributable to information provided to
the Trustee by the Master Servicer or the Special Servicer); provided that such
loss arose by reason of willful misfeasance, bad faith or negligence on the part
of the Trustee. The provisions of this Section 8.05(d) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
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 $50,000,000 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 "Aa3" 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 "A3" or "A-", as applicable) from each Rating Agency (or, in the
case of either Rating Agency, such other rating as shall not result in an
Adverse Rating Event, 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
$50,000,000 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 an Adverse Rating Event, 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.
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, all Certificateholders and each Companion
Loan Noteholder. 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
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Special Servicer, the Certificateholders and each Companion Loan Noteholder 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, CMSA Loan
Periodic Update File Report, CMSA 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, the
Certificateholders and each Companion Loan Noteholder 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, the
remaining Certificateholders and each Companion Loan Noteholder 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).
(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.
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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, the Certificateholders and each Companion Loan Noteholder.
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, 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.
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
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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.
(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
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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 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.
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(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.
(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.
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(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 at its offices for review by the Depositor, the Rating Agencies, the
Companion Loan Noteholders and their designees, 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, any private placement 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 made available 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 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
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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 (at the expense of such
Certificateholder or Certificate Owner if the Master Servicer or Special
Servicer charge a fee to cover the reasonable cost of making such copies
available) 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 Analysis Reports 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 written confirmation executed by the requesting Person
substantially in the form of Exhibit W-1 (or in such other form as may be
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 substantially in the form of Exhibit W-2 (or in such other form as may be
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 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).
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(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 and
Related Reports.
(a) With respect to the Trust's fiscal year 1999 (and, if as of the
beginning of any other fiscal year for the Trust, the Registered Certificates
are held (directly or, in the case of Registered Certificates held in book-entry
form, through the Depository) by at least 300 Holders and/or Depository
Participants having accounts with the Depository), the Trustee shall:
(i) during such fiscal year, in accordance with the Exchange Act,
the rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, prepare for filing, execute and
properly file with the Commission monthly, with respect to the Trust, a
Current Report on Form 8-K with copies of the Distribution Date
Statements, Mortgage Pool Data Update Reports and Unrestricted Servicer
Reports attached as exhibits;
(ii) during such fiscal year, (A) monitor for and promptly notify
the Depositor of the occurrence or existence of any of the matters
identified in Section 11.11(a) and/or Section 8.15(b) (in each case to the
extent that a Responsible Officer of the Trustee has actual knowledge
thereof), (B) cooperate with the Depositor in obtaining all necessary
information in order to enable the Depositor to prepare a Current Report
on Form 8-K reporting any such matter in accordance with the Exchange Act,
the rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, and (C) execute and promptly file with
the Commission any such Current Report on Form 8-K prepared by or on
behalf of the Depositor and delivered to the Trustee; and
(iii) within ninety (90) days following the end of such fiscal year,
prepare, execute and properly file with the Commission, with respect to
the Trust, an Annual Report on Form 10-K which complies in all material
respects with the requirements of the Exchange Act, the rules and
regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable (or readily convertible into a format suitable) for electronic filing
via the EDGAR system and shall not have any responsibility to convert any such
items (other than those generated by it) to such format and (y) the Depositor
shall be responsible for preparing, executing and filing (via the EDGAR system
within fifteen (15) days following the Closing Date) a Current Report on Form
8-K reporting the establishment of the Trust and whereby this Agreement is filed
as an exhibit. Each of the other parties to this Agreement shall deliver to the
Trustee in the format required (or readily convertible into the format required)
for electronic filing via the EDGAR system any and all items (including, in the
case of the Master Servicer and the Special Servicer, Unrestricted Servicer
Reports) contemplated to be filed with the Commission pursuant to this Section
8.15(a).
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(b) At all times during the Trust's fiscal year 1999 (and, if as of
the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository, at all times during
such other fiscal year), the Trustee shall promptly notify the Depositor of the
occurrence or existence of any of the following matters of which a Responsible
Officer of the Trustee has actual knowledge:
(i) any failure of the Trustee to make any monthly distributions to
the Holders of any Class of Certificates, which failure is not otherwise
reflected in the Certificateholder Reports filed with the Commission or
has not otherwise been reported to the Depositor pursuant to any other
section of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage Loan
or an REO Property, which acquisition or disposition has not otherwise
been reflected in the Certificateholder Reports filed with the Commission
or has not otherwise been reported to the Depositor pursuant to any other
section of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments, Mortgage
Loans and REO Properties), other than in the normal course of business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary routine
litigation incidental to the business of the Trust, to which the Trust (or
any party to this Agreement on behalf of the Trust) is a party or of which
any property included in the Trust Fund is subject, or any threat by a
governmental authority to bring any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect
of or pertaining to the Trust or any party to this Agreement, or any
actions by or on behalf of the Trust or any party to this Agreement
indicating its bankruptcy, insolvency or inability to pay its obligations;
and
(vii) any change in the rating or ratings assigned to any Class of
Certificates not otherwise reflected in the Certificateholder Reports
filed with the Commission;
provided that (a) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited (except where the Trustee received information regarding
such proceeding from the Master Servicer or the Special Servicer pursuant to
subsection (c) below) to circumstances where it would be reasonable for the
Trustee to identify such property as an asset of, or as securing an asset of,
the Trust or such threatened proceedings as concerning the Trust and (b) no
Responsible Officer of the Trustee shall be deemed to have actual knowledge of
the matters described in clauses (vi) and (vii) of this Section 8.15(b) unless
(x) any
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such matter contemplated in clause (vi) occurred or related specifically to the
Trust or (y) such Responsible Officer was notified in a written instrument
addressed to it.
(c) The Master Servicer, the Special Servicer and the Depositor shall
each, as applicable, promptly notify the Trustee of the occurrence or existence
of any of the following matters of which a Servicing Officer thereof has actual
knowledge:
(i) any material legal proceedings, other than ordinary routine
litigation incidental to the business of such Person, to which the Trust
or such Person or such Person on behalf of the Trust is a party or of
which any property included in the Trust Fund is subject, or any threat by
a governmental authority to bring any such legal proceedings; and
(ii) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect
of such Person or the Trust, or any actions by or on behalf of such Person
or the Trust indicating its bankruptcy, insolvency or inability to pay its
obligations.
(d) If as of the beginning of any fiscal year for the Trust (other
than fiscal year 1999), the Registered Certificates are held (directly or, in
the case of Registered Certificates held in book-entry form, through the
Depository) by less than 300 Holders and/or Depository Participants having
accounts with the Depository, the Trustee shall, in accordance with the Exchange
Act and the rules and regulations promulgated thereunder, timely file a Form 15
with respect to the Trust.
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 and the Companion Loan Noteholders, 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 DCR (or,
in the case of either Rating Agency, such lower rating as will not (as confirmed
in writing by such Rating Agency) result in an Adverse Rating Event).
(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 this 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 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
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succession of such proposed successor fiscal agent would not, in and of itself,
result in an Adverse Rating Event.
(e) The Trustee shall promptly notify the other parties hereto, the
Certificateholders and each Companion Loan Noteholder 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 and the
Companion Loan Noteholders, 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.
(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
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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.
SECTION 8.19. Year 2000 Readiness of the Trustee.
The Trustee covenants that it has used and is continuing to use
reasonable commercial efforts to cure any deficiencies with regards to the
manipulation or calculation of dates beyond December 31, 1999 in the internally
maintained computer software systems used by the Trustee in the conduct of its
business that could materially and adversely affect the ability of the Trustee
to perform its obligations under this Agreement. The Trustee further covenants
that it will use reasonable commercial efforts to obtain reasonable assurance
from each third party vendor of licensed computer software systems used by the
Trustee in the conduct of their respective business that such vendors shall use
reasonable commercial efforts to cure any deficiencies with regards to the
manipulation or calculation of dates beyond December 31, 1999 in such systems
that could materially and adversely affect the ability of the Trustee to perform
its obligations under this Agreement.
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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 any
Controlling Class Certificateholder of all Mortgage Loans and each REO Property
remaining in REMIC I at a price equal to (1) the sum (x) of the aggregate
Purchase Price of all the Mortgage Loans and (y) the aggregate Appraised Values
of any REO Properties then included in REMIC I, 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) or
Section 4.03A(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, any
Controlling Class Certificateholder (with priority among such Holders being
given to the Holder of Certificates representing the greater Percentage Interest
in the Controlling Class) 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 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
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Fund is to be terminated in connection with the Master Servicer's, the Special
Servicer's, a 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, such
Controlling Class Certificateholder, the Underwriter or the Depositor, as
applicable, shall deliver to the Trustee for deposit in the Pool Custodial
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;
provided, however, that if any REO Property being purchased pursuant to the
foregoing was formerly the Century City Mortgaged Property or the SunAmerica
Mortgaged Property, the portion of the above-described purchase price allocable
to such REO Property shall initially be deposited into the Custodial Account
specifically related to the corresponding Loan Pair. 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 Pool Custodial Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Pool Custodial Account that would otherwise be held
for future distribution. Upon confirmation that such final deposits have been
made, subject to Section 3.28, the Trustee shall release or cause to be released
to the Master Servicer, the Special Servicer, the purchasing 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 purchasing 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 such Controlling Class
Certificateholder (or their respective designees), as applicable. Any transfer
of Mortgage Loans, except in the case of the Century City Mortgage Loan or the
SunAmerica Mortgage Loan, pursuant to this paragraph shall be on a
servicing-released basis and, if any Mortgage Loan purchased pursuant to this
Section 9.01 is the Century City Mortgage Loan or the SunAmerica Mortgage Loan,
the release, endorsement or assignment of the documents constituting the related
Mortgage File and Servicing File shall be in the manner contemplated by Section
3.28 hereof.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and Companion Loan Noteholders 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 a 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
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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 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;
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(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;
(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;
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(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;
(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
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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;
(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;
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(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 distributions of interest to the Holders of the Class P
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class P Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xli) to distributions of principal to the Holders of the Class P
Certificates, up to an amount equal to the Class Principal Balance of the
Class P Certificates outstanding immediately prior to such Distribution
Date;
(xlii) to distributions to the Holders of the Class P 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
P Certificates and not previously reimbursed;
(xliii) 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
(xlii) above;
(xliv) 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
(xlv) 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 (xliv) above.
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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), 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, 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 to the
Holders of the Class P 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 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).
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SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor, the Underwriter, any 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 an Adverse REMIC Event:
(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 purchasing 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 proceedings with respect to the Trust Fund that involve the Internal
Revenue Service or state tax authorities which extraordinary expenses shall be
payable or
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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 (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
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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 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).
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(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 Pool
Custodial Account, the Collection Account, the Interest Reserve Account or the
Pool 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 Pool Custodial Account, the Collection Account,
the Interest Reserve Account or the Pool 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 or
result in the imposition of a tax upon the Grantor Trust or its assets or
transactions (any such endangerment or imposition, an "Adverse Grantor Trust
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 taking any action for
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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 or Companion Loan Noteholders, (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 or the Grantor Trust 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 the Grantor
Trust; 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 or Companion Loan
Noteholder, 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 an Adverse Rating Event.
(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 or which are required to be distributed to either Companion Loan
Noteholder without the consent of such Companion Loan Noteholder, (ii) adversely
affect in any material respect the interests of the Holders of any Class of
Certificates or of either Companion Loan Noteholder in a manner other than as
described in (i) without the consent of the Holders of all Certificates of such
Class or such Companion Loan Noteholder, as the case may be, (iii) modify the
provisions of this Section 11.01 without the consent of the Holders of all
Certificates then
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outstanding and of the Companion Loan Noteholders, (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 and of the Companion Loan
Noteholders or (v) modify the specified percentage of Voting Rights which are
required to be held 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 an
Adverse Rating Event, (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 and each Companion Loan
Noteholder.
(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
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Counsel required in connection therewith pursuant to Section 11.01(a) or (c)
shall be payable out of the Pool Custodial Account or the Collection Account
pursuant to Section 3.05(a) and (b).
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 Pool Custodial Account pursuant to Section 3.05(a)) to the effect
that such recordation materially and beneficially affects the interests of the
Certificateholders and/or the Companion Loan Noteholders; 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 and
Companion Loan Noteholders.
(a) The death or incapacity of any Certificateholder or Companion
Loan Noteholder shall not operate to terminate this Agreement or the Trust Fund,
nor entitle such Certificateholder's or Companion Loan Noteholder'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 or Companion Loan Noteholder 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 or Companion Loan Noteholders from time to time as partners
or members of an association; nor shall any Certificateholder or Companion Loan
Noteholder 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 or Companion Loan Noteholder 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
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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 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 1999-C2, Series 1999-C2, facsimile
number: 212-526-3746; (ii) in the case of the Master Servicer, First Union
National Bank, First Union Capital Markets, NC 1075, 8739 Research Drive, URP-4,
Charlotte, North Carolina 28288-1075, Attention: LB Commercial Mortgage Trust
1999-C2, Commercial Mortgage Pass- Through Certificates, Series 1999-C2,
facsimile number: (704) 593-7735; (iii) in the case of the Special Servicer,
ORIX Real Estate Capital Markets, LLC, 1717 Main Street, 12th Floor, Dallas,
Texas 75201, Attention: Paul Smyth, with a copy to ORIX Real Estate Capital
Markets, LLC, 1717 Main Street, 14th Floor, Dallas, Texas 75201, Attention:
Edgar L. Smith II, facsimile number: 214- 237-2040; (iv) in the case of the
Trustee, LaSalle Bank National Association, 135 South LaSalle Street, Suite
1625, Chicago, Illinois 60603, Attention: Asset-Backed Securities Trust Services
Group--LB Commercial Mortgage Trust 1999-C2, 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: Tricia Hall/Commercial Mortgage
Trading, facsimile number: 212-526-3746; (vi) in the case of the Rating
Agencies, (A) Moody's Investors Services, Inc., 99 Church Street, New York, New
York 10007, Attention: CMBS Monitoring, facsimile number: (212) 553-1350; and
(B) Duff & Phelps Credit Rating Co., 55 East Monroe Street, Suite 3800, Chicago,
Illinois 60603, Attention: CMBS Monitoring, facsimile number: (312) 263-2852,
e-mail address:
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[email protected]; 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 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 Pool Custodial Account, the Collection Account, the Interest Reserve Account
and, if established, the Pool REO Account and the Defeasance Deposit Account and
any 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 right to receive the reports, statements and other information to
which it is entitled hereunder, to preserve the Underwriter's 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 in effect on the Closing Date (or being negotiated
as of the Closing Date and in effect within 60 days thereafter) 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. The Companion Loan
Noteholders or any designees thereof shall be third-party beneficiaries to this
Agreement with respect to their rights as specifically provided for herein. The
Century City Trustee, the Century City Fiscal Agent, the SunAmerica Trustee and
the SunAmerica Fiscal Agent shall be third-party beneficiaries to this Agreement
solely with respect to reimbursement of P&I Advances made by such Persons, with
interest, as provided in Section 3.05A hereof. 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.
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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.
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 any Custodial Account.
(c) The Special Servicer shall furnish each Rating Agency with
respect to a Specially Serviced Loan such information as the Rating Agency shall
reasonably request and which the Special Servicer can reasonably provide in
accordance with applicable law, with copies to the Trustee.
(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
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(iii) any Officer's Certificate delivered by it to the Trustee
pursuant to Section 3.03(e), 4.03(c) or 4.03A(c).
(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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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: /s/ James Blakemore
-------------------------------------
Name: James Blakemore
Title: Vice President
FIRST UNION NATIONAL BANK
Master Servicer
By: /s/ Lisa Traylor
-------------------------------------
Name: Lisa Traylor
Title: Vice President
ORIX REAL ESTATE CAPITAL MARKETS, LLC
Special Servicer
By: /s/ Edgar L. Smith, II
-------------------------------------
Name: Edgar L. Smith, II
Title: Chief Operating Officer
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Eric Lindahl
-------------------------------------
Name: Eric Lindahl
Title: Assistant Vice President
<PAGE>
ABN AMRO BANK N.V.
Fiscal Agent
By: /s/ Mary C. Casey
-------------------------------------
Name: Mary C. Casey
Title: Vice President
By: /s/ Irene Pazik
-------------------------------------
Name: Irene Pazik
Title: Vice President
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 14th day of October, before me, a notary public in and for
said State, personally appeared James Blakemore, known to me to be a Vice
President 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.
Rhona Ramsay
-------------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECHLENBURG )
On the 8th day of October, before me, a notary public in and for
said State, personally appeared Lisa Traylor known to me to be a Vice President
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.
Katrina Schwarting
-------------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 13th day of October, before me, a notary public in and for
said State, personally appeared Edgar L. Smith, II, known to me to be a Chief
Operating Officer of ORIX REAL ESTATE CAPITAL MARKETS, LLC, 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.
Jerry Newman
-------------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 14th day of October, before me, a notary public in and for
said State, personally appeared Eric Lindahl, known to me to be an Assistant
Vice President of LASALLE BANK NATIONAL ASSOCIATION, 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.
Vanessa Bethea
-------------------------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 14th day of October, 1999, before me, a notary public in and
for said State, personally appeared Mary C. Casey and Irene Pazik, known to me
to be a Vice President and Vice President, respectively, of ABN AMRO BANK N.V.,
one of the entities that executed the within instrument, and also known to me to
be the persons who executed it on behalf of such entity, and acknowledged to me
that such 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.
Vanessa Bethea
-------------------------------------
Notary Public
[Notarial Seal]
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
<PAGE>
LB Commercial Mortgage Trust Series 1999-C2
Mortgage Loan Schedule - All Mortgage Loans
<TABLE>
<CAPTION>
Control
Number Property Name Address City State Zip Code
==============================================================================================================================
<S> <C> <C> <C> <C> <C>
1 SunAmerica 1999 Avenue of the Stars Los Angeles CA 90067
2 Century City Shopping Center 10250 Santa Monica Boulevard Los Angeles CA 90067
3 Embassy Suites Sea-Tac 15920 West Valley Highway Tukwila WA 98188
4 Weberstown Mall 4950 Pacific Avenue Stockton CA 95207
5 Monmouth Executive Center 100 Willowbrook Road, 2 & 3 Paragon Way Freehold NJ 07728
6 Shoreline Office Center 100 Shoreline Highway Mill Valley CA 94941
7 Capital Senior Living - Tesson Heights 12335 West Bend Drive St. Louis MO 63128
8 Capital Senior Living - Veranda Club 6061 Palmetto Circle North Boca Raton FL 33433
9 Arizona Portfolio Various Various AZ Various
10 Village Center on Seven 46950 Community Plaza Sterling VA 20164
11 Rhode Island Avenue Shopping Center 680 Rhode Island Avenue, NE Washington DC 20002
12 1011 Grandview 1011-1015 Grandview Avenue Glendale CA 91201
13 Santa Fe Ridge 1415 Santa Fe Lane Silverdale WA 98383
14 Evergreen Pointe Apartments 3089 Woodland Hills Drive Ann Arbor MI 48108
15 Corona Market Place SWC Magnolia & Corona Freeway Corona CA 91719
16 Ralph's 670 South Western Avenue Los Angeles CA 90010
17 200 South Virginia Street 200 South Virginia Street Reno NV 89501
18 The Pines Apartments 720 Ivey Road Graham NC 27253
19 MacArthur Properties 135 East 54th Street & New York NY Various
233 East 70th Street
20 Lillibridge Health Trust Various Various TN Various
21 Hatcher Square 2400 North Columbia Street Milledgeville GA 31061
22 Caton Research Center I 3916-3922 Vero Road Catonsville MD 21227
23 Prince of Orange Mall 2930 Chestnut Street Orangeburg SC 29115
24 Courtyard by Marriott - Boise 2222 Broadway Avenue Boise ID 83702
25 Johnstown Shopping Center Comrie Avenue and Route 29 Johnstown NY 12095
26 Oaks of Brittany Apartments 1201 Wilcrest Drive Houston TX 77042
27 White Rock Marketplace 11255 Garland Road Dallas TX 75230
28 Riverview Place 520 North Delaware Avenue Philadelphia PA 19125
29 Cypress Run Apartments 3430 Broad River Road Columbia SC 29210
30 Kearny Industrial Building 700 Belleville Turnpike Kearny NJ 07032
31 Hawk Ridge Apartments 400 Hawk Ridge Drive Clemmons NC 27012
32 Valli Hi Apartments 5832 & 5846 Mandarin Ave., 10-78 Goleta CA 93117
Magnolia Ave., 11, 31, 51 Nectarine
Avenue
33 Courtyard by Marriott - Jacksonville 4670 Lenoir Avenue Jacksonville FL 32216
34 Beltway West Corp Center 5700-5750 Executive Drive Baltimore MD 21228
35 Crossroads Plaza 6750 West Peoria Avenue Peoria AZ 85373
36 Travelodge 1450 Lombard Street San Francisco CA 94123
37 Oxford Center 3500 West 8th Street Los Angeles CA 90005
38 Cactus Flower 7037 East Bell Road Phoenix AZ 85254
39 4311 Wilshire Boulevard 4311 Wilshire Boulevard Los Angeles CA 90010
40 East Avenue Mobile Home Park 732 Linden Avenue Penfield NY 14625
41 Taft Office Park 6491-6565 Taft Street Hollywood FL 33024
42 Capital Senior Living - Heatherwood 22800 Civic Center Southfield MI 48034
43 Comfort - Inn Rehoboth State Route 1 Rehoboth DE 19971
44 111 LaQuinta Shopping Center Highway 111 & Washington Street La Quinta CA 92253
45 Benson Avenue 3900 Benson Avenue Baltimore MD 21227
46 4727 Wilshire Boulevard 4727 Wilshire Boulevard Los Angeles CA 90010
47 Center at Monocacy 5104 and 5108 Pegasus Court Frederick MD 21704
48 Lantern Estates Mobile Home Community 2909 South Lynhurst Drive Indianapolis IN 46032
49 JPH - Loan Level Various Indio CA 92201
50 8520 Bluffton Road 8520 Bluffton Road Fort Wayne IN 46809
51 Fresh Fields Shopping Center 339 East Lancaster Avenue Wynnewood PA 19096
52 Kent Business Campus 823-841 Central Avenue North Kent WA 98032
53 Park Glen Apartments 7425 Lavista Drive Dallas TX 75214
54 Washington Gardens Apartments 1750 South Westmoreland Avenue Los Angeles CA 90006
55 Fairfield Inn Potomac 2610 Prince William Parkway Woodbridge VA 22192
56 Indio - Loan Level Various Indio CA 92201
57 Hampton Inn Gadsden 129 River Road Gadsden AL 35901
58 Summit Tower 5835 Callaghan Road San Antonio TX 78228
59 Eastside Gardens 2078 Scenic Highway Snellville GA 30078
60 Shoppes at Three Fountains 4520 University Avenue West Des Moines IA 50266
61 Zulanis Distributors 4545 East 51st Avenue Denver CO 80216
62 Meridian Apartments 10200 Old Bammel North Houston Houston TX 77086
63 35 Hartwell Avenue 35 Hartwell Avenue Lexington MA 02421
64 Award Metals 1000 Whipple Road Union City CA 94587
65 Meadow Ridge Apartments 1168 North Douglas Boulevard Midwest City OK 73130
66 Pfizer Building 194 Howard Street New London CT 06320
67 Broadwalk 201 East Broad Street Spartanburg SC 29306
68 Walgreens SWC Gratiot Avenue &
Wellington Crescent Clinton Township MI 48036
69 A-American Self Storage 401 Farnel Road Santa Maria CA 93454
70 Forest Lawn Mobile Home Park 452 Linden Avenue Penfield NY 14625
71 CVS - Myrtle Beach 4401 Kings Highway North Myrtle Beach SC 29582
72 Penn Valley Mobile Home Park 17522 Penn Valley Drive Penn Valley CA 95946
73 11700 Carolina Place 11700 Carolina Place Pineville NC 28134
74 Galleria at Manalapan 51 US Highway 9 South Manalapan NJ 07726
75 Farmington Mobile Home Park 1191 Mertensia Road Farmington NY 14425
76 Windsor Plaza 4104 Windsor Spring Road Hephzibah GA 30815
77 Lexington Commons 10174 West Broad Street Richmond VA 23060
78 Casa Serena Apartments 2930-32 West Camelback Road Phoenix AZ 85017
79 Archway Apartments 110 Archway Drive Dickson TN 37055
80 Park Centre Plaza 1111 Park Centre Boulevard Miami FL 33169
81 Wayne Forest Apartments 33095 Forest Avenue Wayne MI 48148
82 Eckerd - Virginia Beach 5300 Princess Anne Road Virginia Beach VA 23462
83 West Hills Plaza 129-165 Bessemer Super Highway Midfield AL 35228
84 Countryside Plaza 1706-1730 East Warner Road Tempe AZ 85284
85 Montpelier Professional Center 9811 Mallard Drive Laurel MD 20708
86 6361 Thompson 6361 Thompson East Syracuse NY 13057
87 Chapman Building 100 East Wilshire Avenue Fullerton CA 92832
88 CVS - Lancaster 2020 Columbia Avenue Lancaster PA 17603
89 Fairfield Inn Fredericksburg 10330 Spotsylvania Avenue Fredericksburg VA 22408
90 K-Mart US Route 6 Dickson City PA 18403
91 Oak Gate Apartments 623 East 16th St Plano TX 75074
92 Windsor Place Shopping Center 2512 Tobacco Road Augusta GA 30815
93 Evergreen Acres Mobile Home Park 1345 Scottsville Road Chili NY 14624
94 Caledonia Mobile Home Park 3572 Iroquois Road Caledonia NY 14423
95 Columbia I 9505 Berger Road Columbia MD 21046
96 CVS - Marietta 3930 Shallowford Road Marietta GA 30062
97 CVS - Fairfax 9009 Silverbrook Road Fairfax VA 22039
98 Venice Way Apartments 702-704 Venice Way & 740 Glenway Drive Inglewood CA 90302
99 CVS - Lake Wylie 4730 SC Highway 49 Lake Wylie SC 29710
100 CVS - Hilton Head 10 Pope Avenue Hilton Head SC 29928
101 Windsor Square 3120 Peach Orchard Road Augusta GA 30906
102 CVS - Clinton 507 College Street Clinton NC 28328
103 Salisbury Mobile Home Park Route 13 North Salisbury MD 21804
104 Dowlen Shopping Center 4105 Dowlen Road Beaumont TX 77706
105 Mountain Road Plaza 3201 Mountain Road Pasadena MD 21122
106 Halifax Plaza 416-434 Plymouth Street Halifax MA 02338
107 33 Journey 33 Journey Aliso Viejo CA 92656
108 Meyerland Commons 4946-4990 Beechnut Houston TX 77096
109 Canandaigua Mobile Home Park 129 Saltonstall Street Canandaigua NY 14424
110 Hondo Parkway Apartments 11022 West Hondo Parkway El Monte CA 91731
111 Luskin's Plaza 8400 Midlothian Richmond VA 23235
112 Camelback Office Plaza 1777 West Camelback Road Phoenix AZ 85015
113 Cinemark 359 Park Marina Circle Redding CA 96001
114 Plantation Merchandise Mart 4301-4379 West Sunrise Boulevard Plantation FL 33313
115 Ana Street Industrial 3039 East Ana Street Rancho Dominguez CA 90221
116 Palm Coast Data Building 6 Commerce Boulevard Palm Coast FL 32137
117 2990 Richmond 2990 Richmond Avenue Houston TX 77098
118 Knecht Avenue 1615 Knecht Avenue Catonsville MD 21227
119 University Village Shopping Center 2317 West University Drive Denton TX 76201
120 North Main Plaza 870 North Main Street Fall River MA 02720
121 7600 Pelham 7600 Pelham Road Greenville SC 29615
122 Concord Court Apartments 2221 Ben Hill Road East Point GA 30344
123 Manor Apartments 5911-5951 Imperial Highway South Gate CA 90280
124 CVS - Cartersville SEC N Tennessee St. and E Church St Cartersville GA 30303
125 Rite Aid - Guilderland 3916 Carman Road Guilderland NY 12303
126 Boulevard Shops 11375 SW 211th Street Miami FL 33189
127 Greenbriar on the Bayou Apartments 1947 Greenbriar Colony Houston TX 77032
128 Valley Ho Mobile Home Park 1823 Washington Street North Grand Forks ND 58201
129 Woodford Shoppes 681 Battlefield Boulevard Chesapeake VA 23321
130 6901 South Yosemite 6901 South Yosemite Street Englewood CO 80112
131 McDonald's 5100 South Broadway Street Englewood CO 80110
132 Wesleyville Mobile Home Park 3322 North Street Wesleyville PA 16510
133 Pleasant Valley Mobile Home Park Kings Creek Road Weirton WV 26062
134 Lakeview Mobile Home Park 3525 East Lake Road Canandaigua NY 14425
<CAPTION>
Remaining Remaining
Control Cut-off Date Monthly P&I term to Amortization
Number Balance Payment Rate Maturity Maturity/ ARD Term
====================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
1 146,500,000.00 1,105,675.39 7.93500 120 10/01/2009 360
2 128,000,000.00 922,580.26 7.58000 105 07/01/2008 360
3 20,923,277.04 164,873.48 8.20000 56 06/01/2004 296
4 20,434,760.38 142,357.64 7.43000 79 05/01/2006 355
5 16,589,041.37 122,731.96 8.08000 83 09/01/2006 359
6 15,814,826.15 118,443.23 8.21000 59 09/01/2004 359
7 14,934,784.08 117,374.25 8.20000 119 09/01/2009 299
8 13,466,280.25 105,833.08 8.20000 119 09/01/2009 299
9 12,866,790.04 96,725.58 8.25000 119 09/01/2009 359
10 12,463,912.76 92,065.88 7.85000 116 06/01/2009 332
11 11,693,282.48 92,127.52 8.76000 119 09/01/2009 359
12 10,988,237.39 82,098.63 8.18000 118 08/01/2009 358
13 10,483,873.03 77,705.07 8.09000 81 07/01/2006 357
14 10,466,052.51 72,485.11 7.37000 79 05/01/2006 355
15 10,225,934.75 74,212.92 7.86000 140 06/01/2011 356
16 10,078,855.21 73,771.84 7.76000 117 07/01/2009 333
17 9,801,932.57 71,135.80 7.86000 56 06/01/2004 356
18 9,609,994.71 70,893.42 8.04000 117 07/01/2009 357
19 9,183,031.14 65,795.01 7.65000 107 09/01/2008 347
20 9,038,936.68 71,584.56 8.81000 81 07/01/2006 357
21 8,765,305.76 64,755.25 8.06000 118 08/01/2009 358
22 8,690,336.66 64,080.28 8.04000 118 08/01/2009 358
23 8,365,747.64 61,803.45 8.06000 118 08/01/2009 358
24 8,281,185.68 68,802.73 8.85000 117 07/01/2009 297
25 8,244,950.50 63,143.25 8.45000 119 09/01/2009 359
26 7,913,577.69 54,386.40 7.31120 106 07/31/2008 358
27 7,889,372.28 58,584.98 8.11000 117 07/01/2009 357
28 7,834,077.01 59,804.26 8.40000 80 06/01/2006 356
29 7,591,828.58 56,616.12 8.16000 118 08/01/2009 358
30 7,189,106.45 53,535.43 8.14000 117 07/01/2009 357
31 6,991,949.95 50,925.02 7.91000 118 08/01/2009 358
32 6,988,760.11 51,071.03 7.94000 117 07/01/2009 357
33 6,684,326.95 54,901.66 8.71000 117 07/01/2009 297
34 6,543,110.27 49,161.92 8.24000 118 08/01/2009 358
35 6,530,346.62 46,473.19 7.65000 55 05/01/2004 355
36 6,161,192.00 51,440.34 8.91000 117 07/01/2009 297
37 6,084,585.07 45,870.15 8.26000 115 05/01/2009 355
38 6,076,774.77 47,040.39 7.99000 116 06/01/2009 296
39 5,996,409.81 46,390.19 8.56000 119 09/01/2009 359
40 5,728,784.87 43,382.81 8.32000 117 07/01/2009 357
41 5,643,841.99 41,891.77 8.11000 118 08/01/2009 358
42 5,594,300.42 43,966.25 8.20000 119 09/01/2009 299
43 5,295,335.21 44,768.12 9.08000 119 09/01/2009 299
44 5,096,714.52 38,135.48 8.20000 119 09/01/2009 359
45 4,844,612.96 35,722.92 8.04000 118 08/01/2009 358
46 4,797,068.14 36,771.86 8.46000 119 09/01/2009 359
47 4,644,835.10 34,249.81 8.04000 118 08/01/2009 358
48 4,549,336.07 33,063.16 7.87500 56 06/01/2004 356
49 4,517,118.38 36,226.43 8.41000 116 06/01/2009 296
50 4,475,248.61 33,530.85 8.21000 118 08/01/2009 358
51 4,394,886.09 31,887.78 7.87000 118 08/01/2009 358
52 4,389,117.89 31,248.93 7.66000 56 06/01/2004 356
53 4,297,031.77 31,133.23 7.86000 119 09/01/2009 359
54 4,293,562.22 32,754.86 8.11000 142 08/01/2011 322
55 4,287,331.42 37,425.33 8.54000 118 08/01/2009 238
56 4,252,050.35 34,100.63 8.41000 116 06/01/2009 296
57 4,068,670.44 35,907.27 8.71000 119 09/01/2009 239
58 3,988,670.09 28,961.14 7.86000 115 05/01/2009 355
59 3,915,028.97 30,698.78 8.70000 117 07/01/2009 357
60 3,795,756.48 27,936.05 8.02000 118 08/01/2009 358
61 3,694,783.56 28,109.62 8.37000 81 07/01/2006 357
62 3,693,741.07 26,532.83 7.76000 117 07/01/2009 357
63 3,495,150.38 27,474.34 8.45000 58 08/01/2004 322
64 3,493,526.72 27,245.83 8.10000 118 08/01/2009 298
65 3,297,722.06 23,892.94 7.86000 119 09/01/2009 359
66 3,119,240.77 26,230.36 7.94000 78 04/01/2006 234
67 3,096,967.86 23,836.32 8.50000 118 08/01/2009 358
68 3,000,000.00 24,425.26 7.64000 240 10/01/2019 240
69 2,979,609.15 23,475.43 8.22000 58 08/01/2004 298
70 2,972,737.05 22,511.88 8.32000 117 07/01/2009 357
71 2,953,926.08 23,659.72 8.37000 244 02/01/2020 244
72 2,897,839.15 20,237.52 7.48000 83 09/01/2006 359
73 2,896,796.19 21,400.60 8.06000 118 08/01/2009 358
74 2,795,978.07 21,153.69 8.31000 117 07/01/2009 357
75 2,771,026.30 20,984.37 8.32000 117 07/01/2009 357
76 2,697,017.16 19,924.69 8.06000 118 08/01/2009 358
77 2,696,240.86 20,588.69 8.41000 117 07/01/2009 357
78 2,664,951.37 19,358.52 7.73000 99 01/01/2008 339
79 2,643,085.78 18,438.54 7.45000 116 06/01/2009 356
80 2,642,389.19 19,094.92 7.81000 115 05/01/2009 355
81 2,593,717.61 18,626.72 7.75000 116 06/01/2009 356
82 2,552,114.36 20,581.41 8.76000 230 12/01/2018 230
83 2,548,333.64 18,942.61 8.13000 119 09/01/2009 359
84 2,542,897.09 18,568.98 7.92000 115 05/01/2009 355
85 2,494,553.01 18,588.69 8.14000 116 06/01/2009 356
86 2,397,290.99 17,576.90 7.98000 118 08/01/2009 358
87 2,396,043.94 17,360.04 7.85000 117 07/01/2009 357
88 2,347,052.70 18,653.13 8.02000 244 02/01/2020 276
89 2,346,101.92 19,145.06 8.64000 118 08/01/2009 298
90 2,342,948.77 16,673.59 7.65000 115 05/01/2009 355
91 2,294,691.77 16,756.49 7.92500 56 06/01/2004 356
92 2,272,486.67 16,788.40 8.06000 118 08/01/2009 358
93 2,153,911.27 16,311.09 8.32000 117 07/01/2009 357
94 2,128,947.07 16,122.04 8.32000 117 07/01/2009 357
95 2,097,667.48 15,467.65 8.04000 118 08/01/2009 358
96 2,039,176.06 15,416.70 8.17000 220 02/01/2018 251
97 2,021,962.79 15,035.55 8.19000 237 07/01/2019 274
98 2,021,757.98 14,788.21 7.95000 57 07/01/2004 357
99 2,001,333.55 14,872.22 7.85000 238 08/01/2019 270
100 1,992,454.13 15,998.39 8.10000 237 07/01/2019 237
101 1,972,818.11 14,574.54 8.06000 118 08/01/2009 358
102 1,937,095.84 14,367.56 7.06000 236 06/01/2019 236
103 1,920,246.34 14,541.60 8.32000 117 07/01/2009 357
104 1,845,117.13 13,716.78 8.11000 79 05/01/2006 355
105 1,844,745.31 13,381.70 7.85000 115 05/01/2009 355
106 1,798,947.11 14,057.89 8.67000 119 09/01/2009 359
107 1,798,111.84 13,522.80 8.25000 118 08/01/2009 358
108 1,795,616.69 12,858.12 7.72000 80 06/01/2006 356
109 1,758,478.34 13,316.56 8.32000 117 07/01/2009 357
110 1,757,365.01 13,406.64 8.11000 142 08/01/2011 322
111 1,746,370.33 13,233.42 8.32000 116 06/01/2009 356
112 1,746,042.10 14,518.53 8.86000 117 07/01/2009 297
113 1,594,950.87 13,339.60 8.92000 116 06/01/2009 296
114 1,593,872.42 12,306.69 7.96000 116 06/01/2009 296
115 1,533,520.01 12,391.28 8.53000 119 09/01/2009 299
116 1,495,798.39 10,902.08 7.90000 115 05/01/2009 355
117 1,489,236.75 13,188.74 8.68000 115 05/01/2009 235
118 1,398,444.98 10,311.77 8.04000 118 08/01/2009 358
119 1,348,060.86 10,199.10 8.31000 117 07/01/2009 357
120 1,298,497.05 9,439.44 7.89000 118 08/01/2009 358
121 1,283,261.20 9,880.54 8.50000 117 07/01/2009 357
122 1,196,939.59 8,423.47 7.54000 116 06/01/2009 356
123 1,138,293.24 8,683.85 8.11000 142 08/01/2011 322
124 1,135,931.71 9,086.24 7.98000 236 06/01/2019 236
125 1,093,961.33 10,141.30 8.92000 230 12/01/2018 230
126 999,037.43 8,079.24 8.54000 119 09/01/2009 299
127 995,205.26 7,619.06 7.85000 115 05/01/2009 295
128 974,602.40 7,380.45 8.32000 117 07/01/2009 357
129 973,684.87 7,503.82 8.51000 117 07/01/2009 357
130 947,521.26 7,070.36 8.15000 115 05/01/2009 355
131 938,097.29 7,062.14 7.73000 232 02/01/2019 232
132 733,947.51 5,558.02 8.32000 117 07/01/2009 357
133 524,248.21 3,970.02 8.32000 117 07/01/2009 357
134 483,306.92 3,659.98 8.32000 117 07/01/2009 357
892,435,593.60
<CAPTION>
Secured by
Control Accrual Administrative Letter of Amortization
Number Basis Cost Rate Ground Lease? Mortgage Loan Seller Defeasance Credit Type
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
1 Act/360 0.1031 No Lehman Brothers Yes No Hyperam
2 Act/360 0.1031 No Lehman Brothers Yes No Hyperam
3 Act/360 0.1231 Yes LUBS Yes No Balloon
4 Act/360 0.1031 No LUBS Yes No Balloon
5 Act/360 0.1031 No Lehman Brothers Yes No Balloon
6 Act/360 0.1031 Yes Lehman Brothers Yes No Balloon
7 Act/360 0.1031 No Lehman Brothers Yes No Balloon
8 Act/360 0.1031 No Lehman Brothers Yes No Balloon
9 Act/360 0.1031 No Lehman Brothers Yes No Balloon
10 Act/360 0.1031 No LUBS Yes No Balloon
11 Act/360 0.1031 No Lehman Brothers Yes No Balloon
12 Act/360 0.1231 No Lehman Brothers Yes No Balloon
13 Act/360 0.1031 No Lehman Brothers Yes No Balloon
14 Act/360 0.1031 No LUBS Yes No Balloon
15 Act/360 0.1031 No LUBS Yes No Balloon
16 Act/360 0.1031 No LUBS Yes No Balloon
17 Act/360 0.1231 No LUBS Yes No Balloon
18 Act/360 0.1031 No LUBS Yes No Balloon
19 Act/360 0.1031 No Lehman Brothers Yes No Balloon
20 Act/360 0.1031 Yes Lehman Brothers Yes No Balloon
21 Act/360 0.1031 No Lehman Brothers Yes No Balloon
22 Act/360 0.1031 No Lehman Brothers Yes No Balloon
23 Act/360 0.1031 No Lehman Brothers Yes No Balloon
24 Act/360 0.1031 No Lehman Brothers Yes No Balloon
25 Act/360 0.1031 No Lehman Brothers Yes No Balloon
26 Act/360 0.1031 No Lehman Brothers Yes No Balloon
27 Act/360 0.1031 No Lehman Brothers Yes No Balloon
28 Act/360 0.1031 No LUBS Yes No Balloon
29 Act/360 0.1031 No Lehman Brothers Yes No Balloon
30 Act/360 0.1031 Yes Lehman Brothers Yes No Balloon
31 Act/360 0.1031 No Lehman Brothers Yes No Balloon
32 Act/360 0.1031 No LUBS Yes No Balloon
33 Act/360 0.1231 No Lehman Brothers Yes No Balloon
34 Act/360 0.1031 No Lehman Brothers Yes No Balloon
35 Act/360 0.1531 No LUBS Yes No Balloon
36 Act/360 0.1031 No Lehman Brothers Yes No Balloon
37 Act/360 0.1231 No LUBS Yes No Balloon
38 Act/360 0.1531 No LUBS Yes No Balloon
39 Act/360 0.1231 No Lehman Brothers Yes No Balloon
40 Act/360 0.1031 No Lehman Brothers Yes No Balloon
41 Act/360 0.1031 No Lehman Brothers Yes No Balloon
42 Act/360 0.1031 No Lehman Brothers Yes No Balloon
43 Act/360 0.1031 No Lehman Brothers Yes No Balloon
44 Act/360 0.1031 No Lehman Brothers Yes No Balloon
45 Act/360 0.1031 No Lehman Brothers Yes No Balloon
46 Act/360 0.1231 No Lehman Brothers Yes No Balloon
47 Act/360 0.1031 No Lehman Brothers Yes No Balloon
48 Act/360 0.1031 No LUBS Yes No Balloon
49 Act/360 0.1231 No Lehman Brothers Yes No Balloon
50 Act/360 0.1231 No Lehman Brothers Yes No Balloon
51 Act/360 0.1231 No Lehman Brothers Yes No Balloon
52 Act/360 0.1231 No LUBS Yes No Balloon
53 Act/360 0.1031 No Lehman Brothers Yes No Balloon
54 Act/360 0.1031 No Lehman Brothers Yes No Balloon
55 Act/360 0.1031 No Lehman Brothers Yes No Balloon
56 Act/360 0.1231 No Lehman Brothers Yes No Balloon
57 Act/360 0.1231 No Lehman Brothers Yes No Balloon
58 Act/360 0.1231 No LUBS Yes No Balloon
59 Act/360 0.1031 No LUBS Yes No Balloon
60 Act/360 0.1031 No Lehman Brothers Yes No Balloon
61 Act/360 0.1231 No Lehman Brothers Yes No Balloon
62 Act/360 0.1031 No LUBS Yes No Balloon
63 Act/360 0.1031 No Lehman Brothers Yes No Balloon
64 Act/360 0.1031 No Lehman Brothers Yes No Balloon
65 Act/360 0.1031 No Lehman Brothers Yes No Balloon
66 Act/360 0.1231 No Lehman Brothers Yes No Balloon
67 Act/360 0.1231 No Lehman Brothers Yes No Balloon
68 30/360 0.1331 No Lehman Brothers Yes No Fully Amortizing
69 Act/360 0.1031 No Lehman Brothers Yes No Balloon
70 Act/360 0.1031 No Lehman Brothers Yes No Balloon
71 30/360 0.1331 No Lehman Brothers Yes No Fully Amortizing
72 Act/360 0.1031 No Lehman Brothers Yes No Balloon
73 Act/360 0.1031 No Lehman Brothers Yes No Balloon
74 Act/360 0.1031 No Lehman Brothers Yes No Balloon
75 Act/360 0.1031 No Lehman Brothers Yes No Balloon
76 Act/360 0.1031 No Lehman Brothers Yes No Balloon
77 Act/360 0.1031 No Lehman Brothers Yes No Balloon
78 Act/360 0.1531 No Lehman Brothers No No Balloon
79 Act/360 0.1031 No LUBS Yes No Balloon
80 Act/360 0.1031 No LUBS Yes No Balloon
81 Act/360 0.1231 No LUBS Yes No Balloon
82 30/360 0.1331 No Lehman Brothers Yes No Fully Amortizing
83 Act/360 0.1231 No Lehman Brothers Yes No Balloon
84 Act/360 0.1531 No LUBS Yes No Balloon
85 Act/360 0.1031 No LUBS Yes No Balloon
86 Act/360 0.1031 No Lehman Brothers Yes No Balloon
87 Act/360 0.1231 No LUBS Yes No Balloon
88 30/360 0.1331 No Lehman Brothers Yes No Balloon
89 Act/360 0.1031 No Lehman Brothers Yes No Balloon
90 Act/360 0.1031 No LUBS Yes No Balloon
91 Act/360 0.1531 No LUBS Yes No Balloon
92 Act/360 0.1031 No Lehman Brothers Yes No Balloon
93 Act/360 0.1031 No Lehman Brothers Yes No Balloon
94 Act/360 0.1031 No Lehman Brothers Yes No Balloon
95 Act/360 0.1031 No Lehman Brothers Yes No Balloon
96 Act/360 0.1331 No Lehman Brothers Yes No Balloon
97 Act/360 0.1331 No LUBS Yes No Balloon
98 Act/360 0.1231 No LUBS Yes No Balloon
99 Act/360 0.1331 No Lehman Brothers Yes No Balloon
100 30/360 0.1331 No Lehman Brothers Yes No Fully Amortizing
101 Act/360 0.1031 No Lehman Brothers Yes No Balloon
102 30/360 0.1331 No LUBS Yes No Fully Amortizing
103 Act/360 0.1031 No Lehman Brothers Yes No Balloon
104 Act/360 0.1231 No LUBS Yes No Balloon
105 Act/360 0.1031 No LUBS Yes No Balloon
106 Act/360 0.1231 No Lehman Brothers Yes No Balloon
107 Act/360 0.1231 No Lehman Brothers Yes No Balloon
108 Act/360 0.1231 No LUBS Yes No Balloon
109 Act/360 0.1031 No Lehman Brothers Yes No Balloon
110 Act/360 0.1031 No Lehman Brothers Yes No Balloon
111 Act/360 0.1031 No LUBS Yes No Balloon
112 Act/360 0.1531 No Lehman Brothers Yes No Balloon
113 Act/360 0.1031 No LUBS Yes No Balloon
114 Act/360 0.1031 No LUBS Yes No Balloon
115 Act/360 0.1231 No Lehman Brothers Yes No Balloon
116 Act/360 0.1031 No LUBS Yes No Balloon
117 Act/360 0.1531 Yes LUBS Yes No Balloon
118 Act/360 0.1031 No Lehman Brothers Yes No Balloon
119 Act/360 0.1031 No Lehman Brothers Yes No Balloon
120 Act/360 0.1031 No Lehman Brothers Yes No Balloon
121 Act/360 0.1231 No Lehman Brothers Yes No Balloon
122 Act/360 0.1231 No LUBS Yes No Balloon
123 Act/360 0.1031 No Lehman Brothers Yes No Balloon
124 30/360 0.1331 Yes Lehman Brothers Yes No Fully Amortizing
125 30/360 0.1331 Yes Lehman Brothers Yes No Fully Amortizing
126 Act/360 0.1231 No Lehman Brothers Yes No Balloon
127 Act/360 0.1231 No LUBS Yes No Balloon
128 Act/360 0.1031 No Lehman Brothers Yes No Balloon
129 Act/360 0.1231 No Lehman Brothers Yes No Balloon
130 Act/360 0.1031 No LUBS Yes No Balloon
131 30/360 0.1331 No LUBS Yes No Fully Amortizing
132 Act/360 0.1031 No Lehman Brothers Yes No Balloon
133 Act/360 0.1031 No Lehman Brothers Yes No Balloon
134 Act/360 0.1031 No Lehman Brothers Yes No Balloon
<CAPTION>
Final Maturity Lease Residual
Control for ARD ARD Rate Cross Lockbox Enhancement Value
Number Loans Increase CTL? CTL Guarantor Rated Party Collateralized Account Policy Insurance
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 10/01/2029 5.00 No Springing
2 07/01/2030 5.00 No Springing
3 No Hard
4 No Hard
5 No Springing
6 No Springing
7 No Springing
8 No Springing
9 LB99C2-1 Springing
10 No Springing
11 No Springing
12 No Springing
13 No Springing
14 No Springing
15 No Springing
16 No Springing
17 No Springing
18 No Springing
19 No Springing
20 LB99C2-2 Springing
21 No Springing
22 No Springing
23 No Springing
24 No None
25 No Springing
26 No Springing
27 No Hard
28 No Springing
29 No Springing
30 No Springing
31 No Springing
32 No Springing
33 No Springing
34 No Springing
35 No None
36 No Springing
37 No Springing
38 No Springing
39 No Springing
40 No Springing
41 No Springing
42 No Springing
43 No Springing
44 No Springing
45 No Springing
46 No Springing
47 No Springing
48 No Springing
49 LB99C2-3 Springing
50 No Springing
51 No Springing
52 No Springing
53 No Springing
54 No Springing
55 No None
56 LB99C2-3 Springing
57 No Springing
58 No Springing
59 No Springing
60 No Springing
61 No Springing
62 No None
63 No Springing
64 No Springing
65 No Springing
66 No Hard
67 No Springing
68 CTL Walgreen No Hard Yes No
69 No Springing
70 No Springing
71 CTL CVS Corporation CVS No Hard Yes No
72 No Springing
73 No Springing
74 No Springing
75 No Springing
76 No Springing
77 No Springing
78 No Springing
79 No Springing
80 No Springing
81 No Springing
82 CTL JC Penney No Hard Yes No
83 No Springing
84 No None
85 No Springing
86 No Springing
87 No Springing
88 CTL CVS Corporation CVS No Hard Yes Yes
89 No None
90 No Springing
91 No Springing
92 No Springing
93 No Springing
94 No Springing
95 No Springing
96 CTL CVS Corporation CVS No Hard Yes Yes
97 CTL CVS Corporation CVS No Hard Yes Yes
98 No Springing
99 CTL CVS Corporation CVS No Hard Yes Yes
100 CTL CVS Corporation CVS No Hard Yes No
101 No Springing
102 CTL CVS Corporation CVS No Hard Yes No
103 No Springing
104 No Springing
105 No Springing
106 No None
107 No Springing
108 No Springing
109 No Springing
110 No Springing
111 No Springing
112 No Springing
113 No Springing
114 No Springing
115 No Springing
116 No Springing
117 No Springing
118 No Springing
119 No Springing
120 No Springing
121 No Springing
122 No Springing
123 No Springing
124 CTL CVS Corporation CVS No Hard Yes No
125 CTL Rite Aid Corp Rite Aid No Hard Yes No
126 No Springing
127 No Springing
128 No Springing
129 No Springing
130 No Springing
131 CTL McDonald's No Hard Yes No
132 No Springing
133 No Springing
134 No Springing
</TABLE>
<PAGE>
SCHEDULE II
SCHEDULE OF EXCEPTIONS
TO MORTGAGE FILE DELIVERY
[NONE]
<PAGE>
SCHEDULE III
EXCEPTIONS TO REPRESENTATIONS
AND WARRANTIES OF THE DEPOSITOR
<PAGE>
Schedule III-A
ITALICS indicate mortgage loans secured by multiple properties.
<TABLE>
<CAPTION>
Control Original Balance Cut-off Date
No. Property Name City State ($) Balance ($)
============================================================================================================================
<S> <C> <C> <C> <C> <C>
10 Village Center on Seven Sterling VA 12,500,000 12,463,913
20 Lillibridge Health Trust Various TN 9,050,000 9,038,937
20a Lillibridge - Magdalene Clarke Tower Knoxville TN
20b Lillibridge - Farragut Medical Center Farragut TN
20c Lillibridge - Halls Medical Center Knoxville TN
20d Lillibridge - Professional Office Building Knoxville TN
20e Lillibridge - West Medical Center Knoxville TN
20f Lillibridge - Clinton Medical Center Clinton TN
20g Lillibridge - Norwood Medical Center Knoxville TN
20h Lillibridge - John Deere Building Jefferson City TN
20i Lillibridge - Physicians Office Building Knoxville TN
97 CVS - Fairfax Fairfax VA 2,024,708 2,021,963
<CAPTION>
Maturity or
Control % of Aggregate Anticipated
No. Property Name Cut-off Date Balance Origination Date Repayment Date Property Type
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
10 Village Center on Seven 1.40 5/13/1999 6/1/2009 Retail
20 Lillibridge Health Trust 1.01 6/14/1999 7/1/2006 Office
20a Lillibridge - Magdalene Clarke Tower Office
20b Lillibridge - Farragut Medical Center Office
20c Lillibridge - Halls Medical Center Office
20d Lillibridge - Professional Office Building Office
20e Lillibridge - West Medical Center Office
20f Lillibridge - Clinton Medical Center Office
20g Lillibridge - Norwood Medical Center Office
20h Lillibridge - John Deere Building Office
20i Lillibridge - Physicians Office Building Office
97 CVS - Fairfax 0.23 6/15/1999 7/1/2019 Credit Tenant Lease
</TABLE>
<PAGE>
Schedule III-B
<TABLE>
<CAPTION>
Control Original Balance Cut-off Date
No. Property Name City State ($) Balance ($)
===========================================================================================================================
<S> <C> <C> <C> <C> <C>
13 Santa Fe Ridge Silverdale WA 10,500,000 10,483,873
14 Evergreen Pointe Apartments Ann Arbor MI 10,500,000 10,466,053
64 Award Metals Union City CA 3,500,000 3,493,527
<CAPTION>
Maturity or
Control % of Aggregate Anticipated
No. Property Name Cut-off Date Balance Origination Date Repayment Date Property Type
================================================================================================================================
<S> <C> <C> <C> <C> <C>
13 Santa Fe Ridge 1.17 7/1/1999 7/1/2006 Multi-Family
14 Evergreen Pointe Apartments 1.17 4/30/1999 5/1/2006 Multi-Family
64 Award Metals 0.39 7/21/1999 8/1/2009 Industrial/Warehouse
</TABLE>
<PAGE>
Schedule III-C
ITALICS indicate mortgage loans secured by multiple properties.
<TABLE>
<CAPTION>
Control Original Balance Cut-off Date
No. Property Name City State ($) Balance ($)
===========================================================================================================================
<S> <C> <C> <C> <C> <C>
3 Embassy Suites Sea-Tac Tukwila WA 21,000,000 20,923,277
6 Shoreline Office Center Mill Valley CA 15,825,000 15,814,826
20 Lillibridge Health Trust Various TN 9,050,000 9,038,937
30 Kearny Industrial Building Kearny NJ 7,200,000 7,189,106
117 2990 Richmond Houston TX 1,500,000 1,489,237
124 CVS - Cartersville Cartersville GA 1,138,966 1,135,932
125 Rite Aid - Guilderland Guilderland NY 1,097,936 1,093,961
<CAPTION>
Maturity or
Control % of Aggregate Anticipated
No. Property Name Cut-off Date Balance Origination Date Repayment Date Property Type
=================================================================================================================================
<S> <C> <C> <C> <C> <C>
3 Embassy Suites Sea-Tac 2.34 5/27/1999 6/1/2004 Hotel
6 Shoreline Office Center 1.77 8/13/1999 9/1/2004 Office
20 Lillibridge Health Trust 1.01 6/14/1999 7/1/2006 Office
30 Kearny Industrial Building 0.81 6/24/1999 7/1/2009 Industrial/Warehouse
117 2990 Richmond 0.17 4/27/1999 5/1/2009 Office
124 CVS - Cartersville 0.13 7/29/1999 6/1/2019 Credit Tenant Lease
125 Rite Aid - Guilderland 0.12 7/19/1999 12/1/2018 Credit Tenant Lease
</TABLE>
<PAGE>
Schedule III-D
<TABLE>
<CAPTION>
Control Original Balance Cut-off Date
No. Property Name City State ($) Balance ($)
=========================================================================================================================
<S> <C> <C> <C> <C> <C>
3 Embassy Suites Sea-Tac Tukwila WA 21,000,000 20,923,277
<CAPTION>
Control % of Aggregate
No. Property Name Cut-off Date Balance Exception
===========================================================================================================================
<S> <C> <C> <C>
3 Embassy Suites Sea-Tac 2.34 Application of insurance proceeds or condemnation
proceeds is subject to [the value of the leasehold].
</TABLE>
<PAGE>
Schedule III-E.1
<TABLE>
<CAPTION>
Control Original Balance Cut-off Date
No. Property Name City State ($) Balance ($)
===========================================================================================================================
<S> <C> <C> <C> <C> <C>
82 Eckerd - Virginia Beach Virginia Beach VA 2,555,974 2,552,114
125 Rite Aid - Guilderland Guilderland NY 1,097,936 1,093,961
<CAPTION>
Maturity or
Control % of Aggregate Anticipated
No. Property Name Cut-off Date Balance Origination Date Repayment Date Property Type
===================================================================================================================================
<S> <C> <C> <C> <C> <C>
82 Eckerd - Virginia Beach 0.29 7/2/1999 12/1/2018 Credit Tenant Lease
125 Rite Aid - Guilderland 0.12 7/19/1999 12/1/2018 Credit Tenant Lease
</TABLE>
<PAGE>
Schedule III-E.2
<TABLE>
<CAPTION>
Control Original Balance Cut-off Date
No. Property Name City State ($) Balance ($)
===========================================================================================================================
<S> <C> <C> <C> <C> <C>
68 Walgreens Clinton Township MI 3,000,000 3,000,000
82 Eckerd - Virginia Beach Virginia Beach VA 2,555,974 2,552,114
<CAPTION>
Maturity or
Control % of Aggregate Anticipated
No. Property Name Cut-off Date Balance Origination Date Repayment Date Property Type
==================================================================================================================================
<S> <C> <C> <C> <C> <C>
68 Walgreens 0.34 8/31/1999 10/1/2019 Credit Tenant Lease
82 Eckerd - Virginia Beach 0.29 7/2/1999 12/1/2018 Credit Tenant Lease
</TABLE>
<PAGE>
Schedule III-E.3
<TABLE>
<CAPTION>
Control Original Balance Cut-off Date % of Aggregate
No. Property Name City State ($) Balance ($) Cut-off Date Balance
===============================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
71 CVS - Myrtle Beach North Myrtle Beach SC 2,956,961 2,953,926 0.33
88 CVS - Lancaster Lancaster PA 2,350,000 2,347,053 0.26
96 CVS - Marietta Marietta GA 2,040,699 2,039,176 0.23
97 CVS - Fairfax Fairfax VA 2,024,708 2,021,963 0.23
99 CVS - Lake Wylie Lake Wylie SC 2,004,425 2,001,334 0.22
100 CVS - Hilton Head Hilton Head SC 2,000,000 1,992,454 0.22
102 CVS - Clinton Clinton NC 1,948,807 1,937,096 0.22
124 CVS - Cartersville Cartersville GA 1,138,966 1,135,932 0.13
125 Rite Aid - Guilderland Guilderland NY 1,097,936 1,093,961 0.12
<CAPTION>
Maturity or
Control Anticipated
No. Property Name Origination Date Repayment Date Property Type Lease Guarantor
==================================================================================================================
<S> <C> <C> <C> <C> <C>
71 CVS - Myrtle Beach 8/13/1999 2/1/2020 Credit Tenant Lease CVS Corporation
88 CVS - Lancaster 8/26/1999 2/1/2020 Credit Tenant Lease CVS Corporation
96 CVS - Marietta 8/26/1999 2/1/2018 Credit Tenant Lease CVS Corporation
97 CVS - Fairfax 6/15/1999 7/1/2019 Credit Tenant Lease CVS Corporation
99 CVS - Lake Wylie 7/22/1999 8/1/2019 Credit Tenant Lease CVS Corporation
100 CVS - Hilton Head 6/23/1999 7/1/2019 Credit Tenant Lease CVS Corporation
102 CVS - Clinton 5/26/1999 6/1/2019 Credit Tenant Lease CVS Corporation
124 CVS - Cartersville 7/29/1999 6/1/2019 Credit Tenant Lease CVS Corporation
125 Rite Aid - Guilderland 7/19/1999 12/1/2018 Credit Tenant Lease Rite Aid Corp
</TABLE>
<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1 AND CLASS A-2 CERTIFICATES
LB COMMERCIAL MORTGAGE TRUST 1999-C2
CLASS [A-1] [A-2] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 1999-C2
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
<TABLE>
<S> <C>
Pass-Through Rate: ___% Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Date of Pooling and Servicing $____________
Agreement: October 1, 1999
Cut-off Date: October 1, 1999 Class Principal Balance of all the Class [A-1]
[A-2] Certificates as of the Closing Date:
Closing Date: October 14, 1999 $____________
First Distribution Date: Aggregate unpaid principal balance of the
November 15, 1999 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
First Union National Bank $892,435,594
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Trustee: Fiscal Agent:
LaSalle Bank National Association ABN AMRO Bank N.V.
Certificate No. [A-1] [A-2]-___ CUSIP No. _____________
</TABLE>
<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, ORIX REAL ESTATE
CAPITAL MARKETS, LLC, LASALLE BANK NATIONAL ASSOCIATION, 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 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 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), ORIX Real Estate Capital Markets, LLC as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), LaSalle Bank National Association 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
A-1-2
<PAGE>
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.
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 Pool Custodial Account, the Collection Account
and, if established, the Pool 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-1-3
<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 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 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 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, Lehman Brothers Inc., the Master
Servicer, the Special Servicer or any 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, Lehman Brothers Inc., the Master Servicer, the Special Servicer
or any 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-1-4
<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 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 BANK
NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1][A-2] Certificates referred to in the
within-mentioned Agreement.
Dated: October 14, 1999
LASALLE BANK
NATIONAL ASSOCIATION,
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
LB COMMERCIAL MORTGAGE TRUST 1999-C2
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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
<TABLE>
<S> <C>
Pass-Through Rate: Variable Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
Date of Pooling and Servicing $____________
Agreement: October 1, 1999
Cut-off Date: October 1, 1999 Class Notional Amount of all the Class X
Certificates as of the Closing Date:
Closing Date: October 14, 1999 $_____________
First Distribution Date: Aggregate unpaid principal balance of the
November 15, 1999 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
First Union National Bank $892,435,594
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Trustee: Fiscal Agent:
LaSalle Bank National Association ABN AMRO Bank N.V.
Certificate No. X-___ CUSIP No.___________________
</TABLE>
<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, ORIX REAL ESTATE
CAPITAL MARKETS, LLC, LASALLE BANK NATIONAL ASSOCIATION, 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 OCTOBER 14, 1999. 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.]
A-2-2
<PAGE>
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 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), ORIX Real Estate Capital
Markets, LLC as special servicer (the "Special Servicer", which term includes
any successor entity under the Agreement), LaSalle Bank National Association 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
A-2-3
<PAGE>
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 Pool Custodial Account, the Collection Account
and, if established, the Pool 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 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 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, Lehman Brothers Inc., the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder
A-2-4
<PAGE>
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, Lehman Brothers Inc., the Master Servicer, the Special
Servicer or any 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-2-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK
NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated: October 14, 1999
LASALLE BANK
NATIONAL ASSOCIATION,
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, CLASS E AND CLASS F CERTIFICATES
LB COMMERCIAL MORTGAGE TRUST 1999-C2
CLASS [B][C][D][E][F] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 1999-C2
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
<TABLE>
<S> <C>
Pass-Through Rate: ____% Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Date of Pooling and Servicing $_______________
Agreement: October 1, 1999
Cut-off Date: October 1, 1999 Class Principal Balance of all the Class
[B][C][D][E][F] Certificates as of the Closing
Closing Date: October 14, 1999 Date: $____________
First Distribution Date: Aggregate unpaid principal balance of the
November 15, 1999 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
Master Servicer: before such date (the "Initial Pool Balance"):
First Union National Bank $892,435,594
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Trustee: Fiscal Agent:
LaSalle Bank National Association ABN AMRO Bank N.V.
Certificate No. [B][C][D][E][F]-___ CUSIP No. _____________
</TABLE>
<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, ORIX REAL ESTATE
CAPITAL MARKETS, LLC, LASALLE BANK NATIONAL ASSOCIATION, 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 OCTOBER 14, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF
A-3-2
<PAGE>
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 Cede & Co. 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), ORIX Real Estate Capital Markets, LLC as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), LaSalle Bank National Association 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,
A-3-3
<PAGE>
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 Pool Custodial Account, the Collection Account
and, if established, the Pool 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.
A-3-4
<PAGE>
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 by the Depositor, Lehman
Brothers Inc. 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.
A-3-5
<PAGE>
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, Lehman Brothers Inc., the Master
Servicer, the Special Servicer or any 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, Lehman Brothers Inc., the Master Servicer, the Special Servicer
or any 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 BANK
NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B][C][D][E][F] Certificates referred to in
the within-mentioned Agreement.
Dated: October 14, 1999
LASALLE BANK
NATIONAL ASSOCIATION,
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 G, CLASS H, CLASS J,
CLASS K, CLASS L, CLASS M, CLASS N AND CLASS P CERTIFICATES
LB COMMERCIAL MORTGAGE TRUST 1999-C2
CLASS [G] [H] [J] [K] [L] [M] [N] [P] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 1999-C2
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
<TABLE>
<S> <C>
Pass-Through Rate: ____% Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
Date of Pooling and Servicing $____________
Agreement: October 1, 1999
Cut-off Date: October 1, 1999 Class Principal Balance of all the Class [G] [H]
[J] [K] [L] [M] [N] [P] Certificates as of the
Closing Date: October 14, 1999 Closing Date:
$____________
First Distribution Date:
November 15, 1999 Aggregate unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
Master Servicer: deducting payments of principal due on or before
First Union National Bank such date (the "Initial Pool Balance"):
$892,435,594
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Fiscal Agent:
Trustee: ABN AMRO Bank N.V.
LaSalle Bank National Association
Certificate No.
[G][H][J][K][L][M][N][P-___ CUSIP No. ____________
</TABLE>
<PAGE>
[FOR CLASS G AND CLASS H 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, ORIX REAL ESTATE
CAPITAL MARKETS, LLC, LASALLE BANK NATIONAL ASSOCIATION, 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 OCTOBER 14, 1999. 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 MORTGAGE 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), ORIX Real Estate
Capital Markets, LLC as special servicer (the "Special Servicer", which term
includes any successor entity under the Agreement), LaSalle Bank National
Association 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 Pool Custodial Account, the Collection Account
and, if established, the Pool 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. 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, Lehman Brothers Inc. 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
A-4-5
<PAGE>
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 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, Lehman Brothers
Inc., the Trustee, the Master Servicer, the Special Servicer, the Fiscal Agent,
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, Lehman Brothers Inc. 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 G and Class H 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 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 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, Lehman Brothers Inc., the Master
Servicer, the Special Servicer or any 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, Lehman Brothers Inc., the Master Servicer, the Special Servicer
or any 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 BANK
NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [G] [H] [J] [K] [L] [M] [N] [P]
Certificates referred to in the within-mentioned Agreement.
Dated: October 14, 1999
LASALLE BANK
NATIONAL ASSOCIATION,
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
LB COMMERCIAL MORTGAGE TRUST 1999-C2
CLASS [R-I][R-II][R-III] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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
<TABLE>
<S> <C>
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: October 1, 1999 Certificate in the related Class: ___%
Cut-off Date: October 1, 1999
Aggregate unpaid principal balance of the
Closing Date: October 14, 1999 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or
First Distribution Date: before such date (the "Initial Pool
November 15, 1999 Balance"): $892,435,594
Master Servicer:
First Union National Bank
Special Servicer:
ORIX Real Estate Capital Markets, LLC
Trustee: Fiscal Agent:
LaSalle Bank National Association ABN AMRO Bank N.V.
Certificate No. [R-I][R-II][R-III]- __
</TABLE>
<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, ORIX REAL ESTATE
CAPITAL MARKETS, LLC, LASALLE BANK NATIONAL ASSOCIATION, 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), ORIX Real Estate Capital Markets, LLC as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), LaSalle Bank National Association 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 Pool Custodial Account, the Collection Account
and, if established, the Pool 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. 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 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, Lehman Brothers Inc., the Trustee, 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.
A-5-4
<PAGE>
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, Lehman Brothers Inc. 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 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
A-5-5
<PAGE>
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. In addition,
the Certificate Registrar shall not register the transfer of an Ownership
Interest in this Certificate to any entity classified as a partnership under the
Code unless at the time of transfer, all of its beneficial owners are United
States Persons.
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; provided that, if such
a Transferee is classified as a partnership under the Code, such Transferee can
only be a Permitted Transferee if all of its beneficial owners are United States
Persons.
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
A-5-6
<PAGE>
farmers' cooperatives described in Section 521 of the Code) which is exempt from
the tax imposed by Chapter 1 of the Code (including the tax imposed by Section
511 of the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 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 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 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, Lehman Brothers Inc., the Master
Servicer, the Special Servicer or any 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, Lehman Brothers Inc., the Master Servicer, the Special Servicer
or any 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 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-5-8
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK
NATIONAL ASSOCIATION,
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: October 14, 1999
LASALLE BANK
NATIONAL ASSOCIATION,
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>
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
<PAGE>
<TABLE>
<S> <C> <C> <C>
ABN AMRO Structured Asset Securities Corporation Statement Date: 11/15/99
LaSalle Bank N.A. First Union National Bank, as Master Servicer Payment Date: 11/15/99
Orix Real Estate Capial Markets LLC, as Special Servicer Prior Payment: NA
Administrator: LB Commercial Mortgage Trust 1999-C2 Record Date: 10/29/99
Eric Lindahl (800) 246-5761 Commercial Mortgage Pass Through Certificates, Series 1999-C2
135 S. LaSalle Street Suite 1625 ABN AMRO Acct: 99-9999-99-9 WAC:
Chicago, IL 60603 WAMM
</TABLE>
================================================================================
Number Of Pages
---------------
Table Of Contents
REMIC Certificate Report
Other Related Information
Asset Backed Facts Sheets
Delinquency Loan Detail
Mortgage Loan Characteristics
Loan Level Listing
Total Pages Included In This Package
Specially Serviced Loan Detail Appendix A
Modified Loan Detail Appendix B
Realized Loss Detail Appendix C
==================================================================
Information is available for this issue from the following sources
------------------------------------------------------------------
LaSalle Web Site www.lnbabs.com
Servicer Website www.firstunion.com
LaSalle Bulletin Board (714) 282-3990
LaSalle ASAP Fax System (312) 904-2200
ASAP #:
Monthly Data File Name:
==================================================================
================================================================================
02/24/97 - 13:09 (A99-A999) (C) 1999 LaSalle Bank N.A.
<PAGE>
<TABLE>
<S> <C> <C> <C>
ABN AMRO Structured Asset Securities Corporation Statement Date: 11/15/99
LaSalle Bank N.A. First Union National Bank, as Master Servicer Payment Date: 11/15/99
Orix Real Estate Capial Markets LLC, as Special Servicer Prior Payment: NA
Administrator: LB Commercial Mortgage Trust 1999-C2 Record Date: 10/29/99
Eric Lindahl (800) 246-5761 Commercial Mortgage Pass Through Certificates, Series 1999-C2
135 S. LaSalle Street Suite 1625 ABN AMRO Acct: 99-9999-99-9 WAC:
Chicago, IL 60603 WAMM
</TABLE>
<TABLE>
<CAPTION>
================================================================================================================================
Original Opening Principal Principal Negative Closing Interest Interest Pass-Through
Class Face Value (1) Balance Payment Adj. or Loss Amortization Balance Payment Adjustment Rate (2)
CUSIP Per $1,000 Per $l,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $l,000 Next Rate (3)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
================================================================================================================================
Total P&I Payment 0.00
=============================
</TABLE>
Notes: (1) N denotes notional balance not included in total (2) Interest Paid
minus Interest Adjustment minus Deferred Interest equals Accrual (3) Estimated
02/24/97 - 13:09 (A99-A999) (C) 1999 LaSalle Bank N.A.
<PAGE>
<TABLE>
<S> <C> <C> <C>
ABN AMRO Structured Asset Securities Corporation Statement Date: 11/15/99
LaSalle Bank N.A. First Union National Bank, as Master Servicer Payment Date: 11/15/99
Orix Real Estate Capial Markets LLC, as Special Servicer Prior Payment: NA
Administrator: LB Commercial Mortgage Trust 1999-C2 Record Date: 10/29/99
Eric Lindahl (800) 246-5761 Commercial Mortgage Pass Through Certificates, Series 1999-C2
135 S. LaSalle Street Suite 1625 ABN AMRO Acct: 99-9999-99-9
Chicago, IL 60603 Other Related Information
</TABLE>
================================================================================
================================================================================
02/24/97 - 13:09 (A99-A999) (C) 1999 LaSalle Bank N.A.
<PAGE>
<TABLE>
<S> <C> <C> <C>
ABN AMRO Structured Asset Securities Corporation Statement Date: 11/15/99
LaSalle Bank N.A. First Union National Bank, as Master Servicer Payment Date: 11/15/99
Orix Real Estate Capial Markets LLC, as Special Servicer Prior Payment: NA
Administrator: LB Commercial Mortgage Trust 1999-C2 Record Date: 10/29/99
Eric Lindahl (800) 246-5761 Commercial Mortgage Pass Through Certificates, Series 1999-C2
135 S. LaSalle Street Suite 1625 ABN AMRO Acct: 99-9999-99-9
Chicago, IL 60603
</TABLE>
<TABLE>
<CAPTION>
===============================================================================
Distribution Delinq. 1 Month Delinq. 2 Months Delinq. 3+ Months Foreclosure/Bankruptcy
-------------------------------------------------------------------------------
Date # Balance # Balance # Balance # Balance
===============================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
11/15/99 0 0 0 0 0 0 0 0
0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000%
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
===============================================================================
<CAPTION>
==================================================================
Distribution REO Modifications Prepayments Curr Weighted Avg.
------------------------------------------------------------------
Date # Balance # Balance # Balance Coupon Remit
==================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
11/15/99 0 0 0 0 0 0
0.00% 0.000% 0.00% 0.000% 0.00% 0.000%
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
==================================================================
</TABLE>
Note: Foreclosure and REO Totals are Included in the Appropriate Delinquency
Aging Category
02/24/97 - 13:09 (A99-A999) (C) 1999 LaSalle Bank N.A.
<PAGE>
<TABLE>
<S> <C> <C> <C>
ABN AMRO Structured Asset Securities Corporation Statement Date: 11/15/99
LaSalle Bank N.A. First Union National Bank, as Master Servicer Payment Date: 11/15/99
Orix Real Estate Capial Markets LLC, as Special Servicer Prior Payment: NA
Administrator: LB Commercial Mortgage Trust 1999-C2 Record Date: 10/29/99
Eric Lindahl (800) 246-5761 Commercial Mortgage Pass Through Certificates, Series 1999-C2
135 S. LaSalle Street Suite 1625 ABN AMRO Acct: 99-9999-99-9
Chicago, IL 60603
Delinquent Loan Detail
</TABLE>
<TABLE>
<CAPTION>
====================================================================================================================================
Paid Outstanding Out. Property Special
Disclosure Doc Thru Current P&I P&I Protection Advance Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Description (1) Transfer Date Date Date Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
====================================================================================================================================
</TABLE>
A. P&I Advance - Loan in Grace Period
B. P&I Advance - Late Payment but < one month delinq
1. P&I Advance - Loan delinquent 1 month
2. P&I Advance - Loan delinquent 2 months
3. P&I Advance - Loan delinquent 3 months or More
4. Matured Balloon/Assumed Scheduled Payment
================================================================================
** Outstanding P&I Advances include the current period P&I Advance
02/24/97 - 13:09 (A99-A999) (C) 1999 LaSalle Bank N.A.
<PAGE>
<TABLE>
<S> <C> <C> <C>
ABN AMRO Structured Asset Securities Corporation Statement Date: 11/15/99
LaSalle Bank N.A. First Union National Bank, as Master Servicer Payment Date: 11/15/99
Orix Real Estate Capial Markets LLC, as Special Servicer Prior Payment: NA
Administrator: LB Commercial Mortgage Trust 1999-C2 Record Date: 10/29/99
Eric Lindahl (800) 246-5761 Commercial Mortgage Pass Through Certificates, Series 1999-C2
135 S. LaSalle Street Suite 1625 ABN AMRO Acct: 99-9999-99-9
Chicago, IL 60603 Pool Total
</TABLE>
Distribution of Principal Balances
- --------------------------------------------------------------------------------
(2) Current Scheduled Number (2) Scheduled Based on
Balances of Loans Balance Balance
================================================================================
$0 to $500,000
$500,000 to $1,000,000
$1,000,000 to $1,500,000
$1,500,000 to $2,000,000
$2,000,000 to $2,500,000
$2,500,000 to $3,000,000
$3,000,000 to $3,500,000
$3,500,000 to $4,000,000
$4,000,000 to $5,000,000
$5,000,000 to $6,000,000
$6,000,000 to $7,000,000
$7,000,000 to $8,000,000
$8,000,000 to $9,000,000
$9,000,000 to $10,000,000
$10,000,000 to $11,000,000
$11,000,000 to $12,000,000
$12,000,000 to $13,000,000
$13,000,000 to $14,000,000
$14,000,000 to $15,000,000
$15,000,000 & Above
================================================================================
Total 0 0 0.00%
- --------------------------------------------------------------------------------
Average Scheduled Balance is 0
Maximum Scheduled Balance is 0
Minimum Scheduled Balance is 0
Distribution of Property Types
- --------------------------------------------------------------------------------
Number (2) Scheduled Based on
Property Types of Loans Balance Balance
================================================================================
================================================================================
Total 0 0 0.00%
- --------------------------------------------------------------------------------
Distribution of Mortgage Interest Rates
- --------------------------------------------------------------------------------
Current Mortgage Number (2) Scheduled Based on
Interest Rate of loans Balance Balance
================================================================================
7.000% or less
7.000% to 7.125%
7.125% to 7.375%
7.375% to 7.625%
7.625% to 7.875%
7.875% to 8.125%
8.125% to 8.375%
8.375% to 8.625%
8.625% to 8.875%
8.875% to 9.125%
9.125% to 9.375%
9.375% to 9.625%
9.625% to 9.875%
9.875% to 10.125%
10.125% & Above
================================================================================
Total 0 0 0.00%
- --------------------------------------------------------------------------------
W/Avg Mortgage Interest Rate is 0.0000%
Minimum Mortgage Interest Rate is 0.0000%
Maximum Mortgage Interest Rate is 0.0000%
Geographic Distribution
- --------------------------------------------------------------------------------
Number (2) Scheduled Based on
Geographic Location of Loans Balance Balance
================================================================================
================================================================================
Total 0 0 0.00%
- --------------------------------------------------------------------------------
02/24/97 - 13:09 (A99-A999) (C) 1999 LaSalle Bank N.A.
<PAGE>
<TABLE>
<S> <C> <C> <C>
ABN AMRO Structured Asset Securities Corporation Statement Date: 11/15/99
LaSalle Bank N.A. First Union National Bank, as Master Servicer Payment Date: 11/15/99
Orix Real Estate Capial Markets LLC, as Special Servicer Prior Payment: NA
Administrator: LB Commercial Mortgage Trust 1999-C2 Record Date: 10/29/99
Eric Lindahl (800) 246-5761 Commercial Mortgage Pass Through Certificates, Series 1999-C2
135 S. LaSalle Street Suite 1625 ABN AMRO Acct: 99-9999-99-9
Chicago, IL 60603 Pool Total
</TABLE>
Loan Seasoning
- --------------------------------------------------------------------------------
Number (2) Scheduled Based on
Number of Years of Loans Balance Balance
================================================================================
================================================================================
- --------------------------------------------------------------------------------
Weighted Average Seasoning is 0.0
Distribution of Amortization Type
- --------------------------------------------------------------------------------
Number (2) Scheduled Based on
Amortization Type of Loans Balance Balance
================================================================================
Total 0 0 0.00%
- --------------------------------------------------------------------------------
Distribution of Remaining Term
Fully Amortizing
- --------------------------------------------------------------------------------
Fully Amortizing Number (2) Scheduled Based on
Mortgage Loans of Loans Balance Balance
================================================================================
60 months or less
61 to 120 months
121 to 180 months
181 to 240 months
241 to 360 months
================================================================================
Total 0 0 0.00%
- --------------------------------------------------------------------------------
Weighted Average Months to Maturity is 0
Distribution of Remaining Term
Balloon Loans
- --------------------------------------------------------------------------------
Balloon Number (2) Scheduled Based on
Mortgage Loans of Loans Balance Balance
================================================================================
12 months or less
13 to 24 months
25 to 36 months
37 to 48 months
49 to 60 months
61 to 120 months
121 to 180 months
181 to 240 months
================================================================================
Total 0 0 0.00%
- --------------------------------------------------------------------------------
Weighted Average Months to Maturity is 0
Distribution of DSCR
- --------------------------------------------------------------------------------
Debt Service Number (2) Scheduled Based on
Coverage Ratio (1) of Loans Balance Balance
================================================================================
0.500 or less
0.500 to 0.625
0.625 to 0.750
0.750 to 0.875
0.875 to 1.000
1.000 to 1.125
1.125 to 1.250
1.250 to 1.375
1.375 to 1.500
1.500 to 1.625
1.625 to 1.750
1.750 to 1.875
1.875 to 2.000
2.000 to 2.125
2.125 & above
Unknown
================================================================================
Total 0 0 0.00%
- --------------------------------------------------------------------------------
Weighted Average Debt Service Coverage Ratio is 0.000
NOI Aging
- --------------------------------------------------------------------------------
Number (2) Scheduled Based on
NOI Date of Loans Balance Balance
================================================================================
1 year or less
1 to 2 years
2 Years or More
Unknown
================================================================================
Total 0 0 0.00%
- --------------------------------------------------------------------------------
(1) Debt Service Coverage Ratios are calculated as described in the prospectus,
values are updated periodically as new NOI figures became available from
borrowers on an asset level
Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data provided by the borrower for this
calculation
02/24/97 - 13:09 (A99-A999) (C) 1999 LaSalle Bank N.A.
<PAGE>
<TABLE>
<S> <C> <C> <C>
ABN AMRO Structured Asset Securities Corporation Statement Date: 11/15/99
LaSalle Bank N.A. First Union National Bank, as Master Servicer Payment Date: 11/15/99
Orix Real Estate Capial Markets LLC, as Special Servicer Prior Payment: NA
Administrator: LB Commercial Mortgage Trust 1999-C2 Record Date: 10/29/99
Eric Lindahl (800) 246-5761 Commercial Mortgage Pass Through Certificates, Series 1999-C2
135 S. LaSalle Street Suite 1625 ABN AMRO Acct: 99-9999-99-9
Chicago, IL 60603 Pool Total
</TABLE>
Distribution of Maximum Rates
- --------------------------------------------------------------------------------
Number (2) Scheduled Based on
Maximum Rates of Loans Balance Balance
================================================================================
No Maximum
0.01% to 12.00%
12.01% to 12.50%
12.51% to 13.00%
13.01% to 13.50%
13.51% to 14.00%
14.01% to 14.50%
14.51% to 15.00%
15.01% to 15.50%
15.51% to 16.00%
16.01% to 16.50%
16.51% to 17.00%
17.01% to 17.50%
Fixed Rate Mortgage
================================================================================
0 0 0.00%
- --------------------------------------------------------------------------------
Weighted Average for Mtge with a Maximum Rate is 13.49%
Distribution of Payment Adjustment
- --------------------------------------------------------------------------------
Interest Adjustment Number (2) Scheduled Based on
Frequency of Loans Balance Balance
================================================================================
================================================================================
Total 0 0 0.00%
- --------------------------------------------------------------------------------
Distribution of Indices of Mortgage Loans
- --------------------------------------------------------------------------------
Number (2) Scheduled Based on
Indices of Loans Balance Balance
================================================================================
================================================================================
Total 0 0 0.00%
- --------------------------------------------------------------------------------
Distribution of Mortgage Loan Margins
- --------------------------------------------------------------------------------
Number (2) Scheduled Based on
Mortgage Loan Margins of Loans Balance Balance
================================================================================
No Margin
0.000% to 0.000%
0.010% to 1.000%
1.010% to 1.500%
1.510% to 2.000%
2.010% to 2.500%
2.510% to 3.000%
3.010% to 3.500%
3.510% to 4.000%
4.010% to 4.500%
4.510% & Above
Fixed Rate Mortgage
================================================================================
Total 0 0 0.00%
- --------------------------------------------------------------------------------
Weighted Average for Mtge with a Margin is 0.00%
Distribution of Minimum Rates
- --------------------------------------------------------------------------------
Number (2) Scheduled Based on
Minimum Rates (1) of Loans Balance Balance
================================================================================
No Minimum
0.010% to 3.000%
3.010% to 3.500%
3.510% to 4.000%
4.010% to 4.500%
4.510% to 5.000%
5.010% to 5.500%
5.510% to 6.000%
6.010% to 6.500%
6.510% to 7.000%
7.010% to 7.500%
7.510% to 8.000%
8.010% to 8.500%
8.510% to 99.000%
Fixed Rate Mortgage
================================================================================
0 0 0.00%
- --------------------------------------------------------------------------------
Weighted Average for Mtge with a Minimum Rate is 0.00%
Distribution of Interest Adjustment
- --------------------------------------------------------------------------------
Payment Adjustment Number (2) Scheduled Based on
Frequency of Loans Balance Balance
================================================================================
================================================================================
0 0 0.00%
- --------------------------------------------------------------------------------
(1) For adjustable mortgage loans where a minimum rate does not exist the gross
margin was used.
02/24/97 - 13:09 (A99-A999) (C) 1999 LaSalle Bank N.A.
<PAGE>
<TABLE>
<S> <C> <C> <C>
ABN AMRO Structured Asset Securities Corporation Statement Date: 11/15/99
LaSalle Bank N.A. First Union National Bank, as Master Servicer Payment Date: 11/15/99
Orix Real Estate Capial Markets LLC, as Special Servicer Prior Payment: NA
Administrator: LB Commercial Mortgage Trust 1999-C2 Record Date: 10/29/99
Eric Lindahl (800) 246-5761 Commercial Mortgage Pass Through Certificates, Series 1999-C2
135 S. LaSalle Street Suite 1625 ABN AMRO Acct: 99-9999-99-9
Chicago, IL 60603
Loan Level Detail
</TABLE>
<TABLE>
<CAPTION>
====================================================================================================================================
Appraisal Property Operating Ending Loan
Disclosure Reduction Type Maturity Statement Principal Note Scheduled Prepayment Status
Control # Amounts Code Date DSCR NOI Date Balance Rate P&I Prepayment Date Code (1)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
====================================================================================================================================
</TABLE>
* NOI and DSCR, if available and reportable under the terms of the trust
agreement, are based on information obtained from the related borrower,
and no other party to the agreement shall be held liable for the accuracy
or methodology used to determine such figures.
- --------------------------------------------------------------------------------
(1) Legend
A P&I Adv - in Grace Period
B P&I Adv - < one month delinq
1 P&I Adv - delinquent 1 month
2 P&I Adv - delinquent 2 months
3 P&I Adv - delinquent 3+ months
4 Mat Balloon/Assumed P&I
5 Prepaid in Full
6 Specially Serviced
7 Foreclosure
8 Bankruptcy
9 REO
10 DPO
11 Modification
================================================================================
02/24/97 - 13:09 (A99-A999) (C) 1999 LaSalle Bank N.A.
<PAGE>
<TABLE>
<S> <C> <C> <C>
ABN AMRO Structured Asset Securities Corporation Statement Date: 11/15/99
LaSalle Bank N.A. First Union National Bank, as Master Servicer Payment Date: 11/15/99
Orix Real Estate Capial Markets LLC, as Special Servicer Prior Payment: NA
Administrator: LB Commercial Mortgage Trust 1999-C2 Record Date: 10/29/99
Eric Lindahl (800) 246-5761 Commercial Mortgage Pass Through Certificates, Series 1999-C2
135 S. LaSalle Street Suite 1625 ABN AMRO Acct: 99-9999-99-9
Chicago, IL 60603
Specially Serviced Loan Detail
</TABLE>
================================================================================
Beginning Specially
Disclosure Scheduled Interest Maturity Property Serviced
Control # Balance Rate Date Type Status Code (1) Comments
================================================================================
================================================================================
(1) Legend:
1) Request for waiver of Prepayment Penalty
2) Payment default
3) Request for Loan Modification or Workout
4) Loan with Borrower Bankruptcy
5) Loan in Process of Foreclosure
6) Loan now REO Property
7) Loans Paid Off
8) Loans Returned to Master Servicer
================================================================================
Appendix A
02/24/97 - 13:09 (A99-A999) (C) 1999 LaSalle Bank N.A.
<PAGE>
<TABLE>
<S> <C> <C> <C>
ABN AMRO Structured Asset Securities Corporation Statement Date: 11/15/99
LaSalle Bank N.A. First Union National Bank, as Master Servicer Payment Date: 11/15/99
Orix Real Estate Capial Markets LLC, as Special Servicer Prior Payment: NA
Administrator: LB Commercial Mortgage Trust 1999-C2 Record Date: 10/29/99
Eric Lindahl (800) 246-5761 Commercial Mortgage Pass Through Certificates, Series 1999-C2
135 S. LaSalle Street Suite 1625 ABN AMRO Acct: 99-9999-99-9
Chicago, IL 60603
Modified Loan Detail
</TABLE>
================================================================================
Disclosure Modification Modification
Control # Date Description
- --------------------------------------------------------------------------------
================================================================================
Appendix B
02/24/97 - 13:09 (A99-A999) (C) 1999 LaSalle Bank N.A.
<PAGE>
<TABLE>
<S> <C> <C> <C>
ABN AMRO Structured Asset Securities Corporation Statement Date: 11/15/99
LaSalle Bank N.A. First Union National Bank, as Master Servicer Payment Date: 11/15/99
Orix Real Estate Capial Markets LLC, as Special Servicer Prior Payment: NA
Administrator: LB Commercial Mortgage Trust 1999-C2 Record Date: 10/29/99
Eric Lindahl (800) 246-5761 Commercial Mortgage Pass Through Certificates, Series 1999-C2
135 S. LaSalle Street Suite 1625 ABN AMRO Acct: 99-9999-99-9
Chicago, IL 60603
Realized Loss Detail
</TABLE>
<TABLE>
<CAPTION>
=================================================================================================================================
Beginning Gross Proceeds Aggregate Net Net Proceeds
Dist. Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation Liquidation as a % of Realized
Date Control # Date Value Balance Proceeds Sched Principal Expenses * Proceeds Sched. Balance Loss
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
Current Total 0.00 0.00 0.00 0.00 0.00
Cumulative 0.00 0.00 0.00 0.00 0.00
=================================================================================================================================
</TABLE>
Appendix C
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc.
02/24/97 - 13:09 (A99-A999) (C) 1999 LaSalle Bank N.A.
<PAGE>
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: LB Commercial Mortgage Trust 1999-C2 Commercial Mortgage Pass Through
Certificates, Series 1999-C2 (the "Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement dated
as of October 1, 1999, relating to the above-referenced Certificates (the
"Agreement"), LaSalle Bank National Association, in its capacity as trustee (the
"Trustee"), hereby certifies as to each Mortgage Loan subject as of the date
hereof to the Agreement (except as identified in the exception report attached
hereto) that: (i) all documents specified in clauses (i) through (v), (vii) and
(viii) (without regard to the second parenthetical in such clause (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) of the Agreement 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) of the Agreement and in
this Certification 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.
Neither the Trustee nor 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, neither the Trustee nor 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. In performing the review contemplated herein, the Trustee or any
Custodian may rely on the Depositor as to the purported genuineness of any such
document and any signature thereon.
<PAGE>
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
C-2
<PAGE>
Schedule A
First Union National Bank
First Union Capital Markets
NC 1075
8739 Research Drive, URP-4
Charlotte, NC 28288-1075
Attn: LB Commercial Mortgage Trust 1999-C2
ORIX Real Estate Capital Markets, LLC
1717 Main Street
Dallas, TX 74201
Attn: LB Commercial Mortgage Trust 1999-C2
Structured Asset Securities Corporation
200 Vesey Street
New York, NY 10285
Attn: LB Commercial Mortgage Trust 1999-C2
Lehman Brothers Inc.
Three World Financial Center
New York, NY 10285
Attn: LB Commercial Mortgage Trust 1999-C2
C-3
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
___________
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
Group-LB Commercial Mortgage Trust 1999-C2
Re: LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2
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 October 1, 1999 (the "Pooling and Servicing Agreement"),
by and among Structured Asset Securities Corporation as depositor, the
undersigned as master servicer (the "Master Servicer"), ORIX Real Estate Capital
Markets, LLC as special servicer, you as trustee (the "Trustee") ABN AMRO Bank
N.V. as fiscal agent, 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.
Property Name:
------------------------------------------------------
Address:
------------------------------------------------------------
Control 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
___________
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
Group-LB Commercial Mortgage Trust 1999-C2
Re: LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage Pass-
Through Certificates, Series 1999-C2
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 October 1, 1999 (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"), you as trustee (the "Trustee") and
ABN AMRO Bank N.V. as fiscal agent, 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.
Property Name:
------------------------------------------------------
Address:
------------------------------------------------------------
Control 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 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.
ORIX REAL ESTATE CAPITAL MARKETS, LLC
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
D-2-2
<PAGE>
EXHIBIT E
CALCULATION OF DEBT SERVICE COVERAGE RATIOS
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.
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 September 29, 1999 relating to LB Commercial
Mortgage Trust 1999-C2, Commercial Mortgage Pass-Through Certificates, Series
1999-C2.
<PAGE>
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 and (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 charge or expense such
as depreciation.
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.
E-2
<PAGE>
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
______________, 19__
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
Group-LB Commercial Mortgage Trust 1999-C2
Re: LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, Class __, [having
an initial aggregate Certificate Principal Balance as of
October 14, 1999 (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 October 1, 1999, among
Structured Asset Securities Corporation as Depositor, First Union National Bank
as Master Servicer, ORIX Real Estate Capital Markets, LLC as Special Servicer,
LaSalle Bank National Association 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 with
any
<PAGE>
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,
----------------------------------------
(Transferor)
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
F-1-2
<PAGE>
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_____________, 19__
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
Group-LB Commercial Mortgage Trust 1999-C2
Re: LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, Class __, [having
an initial aggregate Certificate Principal Balance as of
October 14, 1999 (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 October 1, 1999, among
Structured Asset Securities Corporation as Depositor, First Union National Bank
as Master Servicer, ORIX Real Estate Capital Markets, LLC as Special Servicer,
LaSalle Bank National Association, 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 such entity'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
Yes No 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.
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.
|_| |_| Will the Transferee be purchasing the
Yes No 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 Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
Group-LB Commercial Mortgage Trust 1999-C2
Re: LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, Class __, [having
an initial aggregate Certificate Principal Balance as of
October 14, 1999 (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 October 1, 1999, among
Structured Asset Securities Corporation as Depositor, First Union National Bank
as Master Servicer, ORIX Real Estate Capital Markets, LLC as Special Servicer,
LaSalle Bank National Association 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 1999-C2, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, Class __, [having
an initial aggregate Certificate Principal Balance as of
October 14, 1999 (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 Company ('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 October 1, 1999, among Structured Asset
Securities Corporation as Depositor, First Union National Bank as Master
Servicer, ORIX Real Estate Capital Markets, LLC as Special Servicer, LaSalle
Bank National Association 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 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.
<PAGE>
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 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 such
entity'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.)______________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
F-2C-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 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
Yes No 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 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 terms "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.
F-2C-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-2C-10
<PAGE>
EXHIBIT F-2D
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN BOOK-ENTRY NON-REGISTERED
CERTIFICATES
____________, 19__
[TRANSFEROR]
Re: LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, Class __, [having
an initial aggregate Certificate Principal Balance as of
October 14, 1999 (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 Company ("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 October 1, 1999, among Structured Asset
Securities Corporation as Depositor, First Union National Bank as Master
Servicer, ORIX Real Estate Capital Markets, LLC as Special Servicer, LaSalle
Bank National Association 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 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
<PAGE>
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.
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
F-2D-2
<PAGE>
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)
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 NON-REGISTERED CERTIFICATES)
[Date]
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
Group-LB Commercial Mortgage Trust 1999-C2
Re: LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2 (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 October 14, 1999 (the "Closing Date") of $__________] [evidencing
a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of October 1, 1999, among Structured Asset
Securities Corporation as depositor, First Union National Bank as master
servicer, ORIX Real Estate Capital Markets, LLC as special servicer, LaSalle
Bank National Association 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 1999-C2, Commercial Mortgage Pass-
Through Certificates, Series 1999-C2 (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 October 14, 1999 (the "Closing Date") of $__________] [evidencing
a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of October 1,
1999 (the "Pooling and Servicing Agreement"), among Structured Asset Securities
Corporation, as depositor, First Union National Bank as master servicer, ORIX
Real Estate Capital Markets, LLC as special servicer, LaSalle Bank National
Association 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
TRANSFER AFFIDAVIT PURSUANT TO SECTIONS
860D(a)(6)(A) and 860E(e)(4)
OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
Re: LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2 (the "Certificates") issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of October 1, 1999, among Structured Asset Securities Corporation
as Depositor, First Union National Bank, as Master Servicer, ORIX Real
Estate Capital Markets, LLC as Special Servicer, LaSalle Bank National
Association as Trustee and ABN AMRO Bank N.V. as Fiscal Agent.
STATE OF ________ )
) ss.: ____________________
COUNTY OF ________ )
I, _______________, under penalties of perjury, declare that, to the
best of my knowledge and belief, the following representations are true, correct
and complete, and being first sworn, depose and say that:
1. I am a ___________ of ____________________ (the "Purchaser"), on
behalf of which I have the authority to make this affidavit.
2 The Purchaser is acquiring [Class R-I] [Class R-II] [Class R-III]
Certificates representing the residual interest in the real estate mortgage
investment conduit ("REMIC") designated as ["REMIC I"] ["REMIC II"] ["REMIC
III"] relating to the Certificates for which an election is to be made under
Section 860D of the Internal Revenue Code of 1986 (the "Code").
3. The Purchaser is not a "Disqualified Organization" (as defined
below), and that the Purchaser is not acquiring the [Class R-I] [Class R-II]
[Class R-III] Certificates for the account of, or as agent or nominee of, or
with a view to the transfer of direct or indirect record or beneficial ownership
thereof, to a Disqualified Organization. For the purposes hereof, a Disqualified
Organization is any of the following: (i) the United States, (ii) any state or
political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative 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, (vii) any
<PAGE>
organization described in section 1381(a)(2)(C) of the Code, or (viii) any other
entity designated as a "disqualified organization" by relevant legislation
amending the REMIC Provisions and in effect at or proposed to be effective as of
the time of determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax (except for the Federal Home
Loan Mortgage Corporation) and a majority of its board of directors is not
selected by such governmental unit. The terms "United States" and "international
organization" shall have the meanings set forth in Section 7701 of the Code.
4. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
[Class R-I] [Class R-II] [Class R-III] Certificates to a Disqualified
Organization.
5. The Purchaser is a "United States person" as defined in Section
7701(a) of the Code and the regulations promulgated thereunder (the Purchaser's
U.S. taxpayer identification number is __________). The Purchaser is not
classified as a partnership under the Code or if so classified, all of its
beneficial owners are United States persons.
6. No purpose of the acquisition of the [Class R-I] [Class R-II]
[Class R-III] Certificates is to impede the assessment or collection of tax.
7. The Purchaser historically has paid its debts as they have come
due and intends to pay its debts as they come due in the future and the
Purchaser intends to pay taxes associated with holding the [Class R-I] [Class
R-II] [Class R-III] Certificates as they become due.
8. The Purchaser understands that it may incur tax liabilities with
respect to the [Class R-I] [Class R-II] [Class R-III] Certificates in excess of
any cash flows generated by such Certificates.
9. The Purchaser will not transfer the [Class R-I] [Class R-II]
[Class R-III] Certificates to any person or entity as to which the Purchaser has
not received an affidavit substantially in the form of this affidavit or to any
person or entity as to which the Purchaser has actual knowledge that the
requirements set forth in paragraphs 3, 5 or 7 hereof are not satisfied, or to
any person or entity with respect to which the Purchaser has not (at the time of
such transfer) satisfied the requirements under the Code to conduct a reasonable
investigation of the financial condition of such person or entity (or its
current beneficial owners if such person or entity is classified as a
partnership under the Code).
10. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the prohibition
against transferring the [Class R-I] [Class R-II] [Class R-III] Certificates to
a Disqualified Organization, an agent thereof or a person that does not satisfy
the requirements of paragraphs 5 and 7.
H-1-2
<PAGE>
11. The Purchaser consents to the designation of the Trustee as the
agent of the Tax Matters Person of REMIC I, REMIC II and REMIC III pursuant to
Section 10.01(d) of the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
H-1-3
<PAGE>
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf by its duly authorized officer this ___ day of
October, 1999.
By:
-------------------------------------
Name:
Title:
Personally appeared before me _________________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be a __________________ of the Purchaser, and acknowledged to me that he/she
executed the same as his/her free act and deed and as the free act and deed of
the Purchaser.
Subscribed and sworn before me this
____ day of _______, 1999.
--------------------------------------------------------------------
Notary Public
H-1-4
<PAGE>
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING RESIDUAL INTEREST CERTIFICATES
[Date]
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
Group-LB Commercial Mortgage Trust 1999-C2
Re: LB Commercial Mortgage Trust 1999-C2, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2 (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 October 1, 1999 (the
"Pooling and Servicing Agreement"), among Structured Asset Securities
Corporation, as depositor, First Union National Bank as master servicer, ORIX
Real Estate Capital Markets, LLC as special servicer, LaSalle Bank National
Association 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.
<PAGE>
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or the
beneficial owners of the Transferee if it is classified as a partnership under
the Code) as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and,
as a result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due in the future. The Transferor understands that the
transfer of the Residual 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
[Date]
Moody's Investors Service, Inc.
99 Church Street, 4th Floor
New York, New York 10007
Attention: Commercial Mortgage Surveillance
Duff & Phelps Credit Rating Co.
55 E. Monroe Street, Suite 3500
Chicago, Illinois 60603
Attention: CMBS Monitoring
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling and
Servicing Agreement, dated as of October 1, 1999 and relating to LB Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C2
(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 BANK
NATIONAL ASSOCIATION,
as Trustee
By: ____________________________________
Name:
Title:
Receipt acknowledged:
MOODY'S INVESTORS SERVICE, INC.
By: ______________________________
Name:
Title:
Date:
DUFF & PHELPS CREDIT RATING CO.
By: ______________________________
Name:
Title:
Date:
I-1-2
<PAGE>
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
[FISCAL AGENT]
Re: LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2
Ladies and Gentlemen:
Pursuant to Section of the Pooling and Servicing Agreement, dated as of
October 1, 1999, relating to LB Commercial Mortgage Trust 1999-C2, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2 (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 Bank National Association as trustee for the holders of the Debtor's
LB Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 1999-C2 (referred to as the "Secured Party" for purposes of this
financing statement only), under that certain Pooling and Servicing Agreement,
dated as of October 1, 1999 (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"), ORIX Real Estate Capital Markets, LLC
as special servicer (the "Special Servicer"), and ABN AMRO Bank N.V. as fiscal
agent relating to the issuance of the Debtor's LB Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2. 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 under each Mortgage Loan, the related mortgage, deed of
trust or other similar instrument securing such Mortgage Note 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 Accounts 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 Accounts, (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 Accounts 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 Accounts, (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;
J-2
<PAGE>
(6) (a) the Servicing Accounts, Reserve Accounts and the Interest
Reserve Account required to be maintained by the Master Servicer and/or the
Special Servicer pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Servicing Accounts, Reserve Accounts and the
Interest Reserve 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;
(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 Trust 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 1999- C2 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 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
J-3
<PAGE>
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.
J-4
<PAGE>
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE
IN EFFECT OR BEING NEGOTIATED AS OF THE CLOSING DATE
<PAGE>
GMAC Commercial Mortgage Corporation
Holliday Fenoglio
L.J. Melody & Company
Collateral Mortgage, Ltd.
Laureate Realty Services, Inc.
Legg Mason Real Estate Services, Inc.
Northland/Marquette Capital Group, Inc.
<PAGE>
EXHIBIT L
FORM OF CMSA LOAN PERIODIC UPDATE 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> <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 CMSA 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 1999-C2
COMPARATIVE FINANCIAL STATUS REPORT
as of _______________
<TABLE>
<CAPTION>
============================================================================================================================
S4 S57 S58 P7 P8 P57 S72 S69 S70 S83 S84
- ----------------------------------------------------------------------------------------------------------------------------
Original Underwriting
- ----------------------------------------------------------------------------------------------------------------------------
Information
- ----------------------------------------------------------------------------------------------------------------------------
Basis Year
- ----------------------------------------------------------------------------------------------------------------------------
Last Current Financial
Property Allocated Paid Allocated Info
Inspect Loan Thru Debt as of % Total % (1)
Prospectus ID City State Date Amount Date Service Date Occ Revenue NCF DSCR
- ----------------------------------------------------------------------------------------------------------------------------
yy/mm yy/mm
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
List all properties currently in deal with or without information largest to smallest loan
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
This report should reflect the information provided in the CSSA Property and Loan file
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
Total: $ $ WA $ $ WA
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
============================================================================================================================
- ----------------------------------------------------------------------------------------------------------------------------
(1) DSCR should match to Operating Statement and is normally calculated using
NCF / Debt Service times the allocated loan percentage.
- ----------------------------------------------------------------------------------------------------------------------------
(2) Net change should compare the latest year to the underwriting year
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
<CAPTION>
====================================================================================================================================
S4 P65 P64 P59 P94 P95 P58 P57 P52 P92 P93 P72 P73 P66 P96 P97
- ------------------------------------------------------------------------------------------------------------------------------------
2nd Preceding Annual Operating Preceding Annual Operating Most Recent Financial
- ------------------------------------------------------------------------------------------------------------------------------------
Information Information Information
- ------------------------------------------------------------------------------------------------------------------------------------
as of _______ Normalized as of _______ Normalized *normalized or actual
- ------------------------------------------------------------------------------------------------------------------------------------
Financial Financial
Info Info FS FS
as of % Total $ (1) as of % Total $ (1) Start End % Total $ (1)
Prospectus ID Date Occ Revenue NCF DSCR Date Occ Revenue NCF DSCR Date Date OCC Revenue NCF DSCR
- ------------------------------------------------------------------------------------------------------------------------------------
yy/mm yy/mm yy/mm yy/mm
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Total: WA $ $ WA WA $ $ WA WA $ $ WA
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
- ------------------------------------------------------------------------------------------------------------------------------------
(1) DSCR should match to Operating Statement and is normally calculated using
NCF / Debt Service times the allocated loan percentage.
- ------------------------------------------------------------------------------------------------------------------------------------
(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 DSCR
- -------------------------------------------------------------
- -------------------------------------------------------------
<S> <C> <C> <C>
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
Total: WA $ WA
- -------------------------------------------------------------
- -------------------------------------------------------------
=============================================================
- -------------------------------------------------------------
(1) DSCR should match to Operating Statement and is normally
calculated using NCF / Debt Service times the allocated
loan percentage.
- -------------------------------------------------------------
(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 1999-C2
REO STATUS REPORT
as of ___________
<TABLE>
<CAPTION>
======================================================================================================================
S4 S55 S61 S57 S58 S62 or P7 P37 P39 P38
- ----------------------------------------------------------------------------------------------------------------------
S63 (a) (b) (c) (d)
- ----------------------------------------------------------------------------------------------------------------------
Other
Short Name Sq Ft Scheduled Total P&I Total Advances
(When Property or Loan Advances Expenses (Taxes &
Prospectus ID Appropriate) Type City State Units Balance To Date To Date Escrow)
- ----------------------------------------------------------------------------------------------------------------------
<S> <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 8 or P P93 or P97 P74 P75
- --------------------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (k) (f)=(k/j) (g) (h)=(.90*g)-e
- --------------------------------------------------------------------------------------------------------------------------
Value Appraisal Appraisal Loss
Current LTM LTM using BPO or BPO or using 90%
Total Monthly Maturity NCF NOI/ Valuation NOI & Internal Internal Appr. or
Prospectus ID Exposure P&I Date Date DSC Date Cap Rate Value Source** Value BPO (f)
- --------------------------------------------------------------------------------------------------------------------------
<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 P35 P77 P82 P79
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
Total Appraisal REO Pending
Reduction Transfer Acquisition Resolution
Prospectus ID Realized Date Date Date Comments
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT P
FORM OF SERVICER WATCH LIST REPORT
<PAGE>
LB Commercial Mortgage Trust 1999-C2
SERVICER WATCH LIST
as of ___________
<TABLE>
<CAPTION>
====================================================================================================================================
S4 S55 S61 S57 S58 P7 P8 P11 P93 P97
- ------------------------------------------------------------------------------------------------------------------------------------
Short Name Scheduled Paid Preceeding Most
Prospectus (When Property Loan Thru Maturity Fiscal Year Recent Comment / Action
ID Appropriate) Type City State Balance Date Date DSCR NCF DSCR NCF to be taken
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
List all loans on watch list and reason sorted in decending balance order.
- ------------------------------------------------------------------------------------------------------------------------------------
Should not include loans that are specially serviced
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Total: $
====================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT Q
FORM OF DELINQUENT LOAN STATUS REPORT
<PAGE>
LB Commercial Mortgage Trust 1999-C2
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>
- ------------------------------------------------------------------------------------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
===================================================================================================================
P58 P92 P93
S4 P25 P10 P11 or P73 or P96 or P97 P81 P74
- -------------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (f)=P38/P81
- -------------------------------------------------------------------------------------------------------------------
Value
Current Current LTM LTM ***Cap using
Total Monthly Interest Maturity NCF LTM DSCR Rate NOI &
Prospectus ID Exposure P&I Rate Date Date NCF (NCF) Assigned Cap Rate
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
FCL - Foreclosure
LTM - Latest 12 Months either Last Normalized Annual, Trailing 12 months or
Normalized YTD
* 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.
<PAGE>
EXHIBIT R
FORM OF HISTORICAL LOAN MODIFICATION REPORT
<PAGE>
LB Commercial Mortgage Trust 1999-C2
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:
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
Current Month Only:
- -------------------------------------------------------------------------------------------------------------------------
<CAPTION>
=================================================================================================
S4 P50* P25* P25* P11* P11* P47
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
(2) Est.
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> <C> <C> <C>
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
=================================================================================================
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
</TABLE>
* The information in these columns is from a particular point in time and
should not change on this report once assigned.
Future modifications done on the same loan are additions to the report.
(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.
<PAGE>
EXHIBIT S
FORM OF HISTORICAL LOSS ESTIMATE REPORT
<PAGE>
HISTORICAL LOSS ESTIMATE REPORT
AS OF
<TABLE>
<CAPTION>
====================================================================================================================================
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>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
Total all Loans:
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
====================================================================================================================================
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
=============================================================================================================================
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
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 1999-C2
Form of NOI ADJUSTMENT WORKSHEET for "year"
as of _____________
PROPERTY OVERVIEW
--------
Prospectus Loan ID
----------------------
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
<PAGE>
EXHIBIT U
FORM OF OPERATING STATEMENT ANALYSIS
<PAGE>
LB Commercial Mortgage Trust 1999-C2
OPERATING STATEMENT ANALYSIS REPORT
as of _____________
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW
---------------
Prospectus Loan ID
-----------------------------
Sch Bal/Paid to Date/Allocated %
------------------------------------------------------------------------------------------
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
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
DSCR: (NOI/Debt Service)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
(1)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
<PAGE>
EXHIBIT V
FORM OF LOAN PAYOFF NOTIFICATION REPORT
<PAGE>
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:
=====================================================================================================================
<CAPTION>
====================================================================
S4 Servicer Estimated Information
Expected Expected
Yield Payment Distribution
Prospectus ID Maintenance Date Date
====================================================================
<S> <C> <C> <C>
- --------------------------------------------------------------------
Scheduled Payments
- --------------------------------------------------------------------
- --------------------------------------------------------------------
- --------------------------------------------------------------------
- --------------------------------------------------------------------
- --------------------------------------------------------------------
- --------------------------------------------------------------------
Unscheduled Payments
- --------------------------------------------------------------------
- --------------------------------------------------------------------
- --------------------------------------------------------------------
- --------------------------------------------------------------------
- --------------------------------------------------------------------
- --------------------------------------------------------------------
Total:
====================================================================
</TABLE>
<PAGE>
EXHIBIT W-1
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE
ACCESS FROM CERTIFICATE OWNER
[Date]
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
Group-LB Commercial Mortgage Trust 1999-C2
Re: LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage
Pass-Though Certificates, Series 1999-C2
In accordance with the provisions of the Pooling and Servicing Agreement,
dated as of October 1, 1999 (the "Pooling and Servicing Agreement"), among
Structured Asset Securities Corporation, as depositor (the "Depositor"), First
Union National Bank as master servicer, ORIX Real Estate Capital Markets, LLC,
as special servicer, LaSalle Bank National Association as trustee (the
"Trustee") and ABN AMRO Bank N.V. as fiscal agent, with respect to LB Commercial
Mortgage Trust 1999-C2, Commercial Mortgage Pass-Through Certificates, Series
1999-C2 (the "Certificates"), the undersigned hereby certifies and agrees as
follows:
1. The undersigned is a beneficial owner of the Class _____
Certificates.
2. The undersigned is requesting (Please check as applicable):
(i) ____ the information (the "Information") identified on
the schedule attached hereto pursuant to Section 8.14 of
the Pooling and Servicing Agreement; or
(ii) ____ a password pursuant to Section 4.02 of the Pooling
and Servicing Agreement for access to information (also,
the "Information") provided on the Trustee's Internet
Website.
3. In consideration of the Trustee's disclosure to the undersigned of
the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it
in evaluating its interest in Certificates, from its accountants and
attorneys, and otherwise from such governmental or banking
authorities to which the undersigned is subject), and such
Information will not, without the prior written consent of the
Trustee, be disclosed by the undersigned or by its officers,
directors, partners, employees, agents or representatives
(collectively, the "Representatives")
<PAGE>
in any manner whatsoever, in whole or in part; provided that the
undersigned may provide all or any part of the Information to any
other person or entity that holds or is contemplating the purchase
of any Certificate or interest therein, but only if such person or
entity confirms in writing such ownership interest or prospective
ownership interest and agrees to keep it confidential.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended, (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require
registration of any Certificate pursuant to Section 5 of the
Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[BENEFICIAL HOLDER OF A
CERTIFICATE]
_____________________________________
By: _________________________________
Name: _______________________________
Title: _____________________________
<PAGE>
EXHIBIT W-2
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE
ACCESS FROM PROSPECTIVE INVESTOR
[Date]
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust
Services Group - LB Commercial Mortgage Trust 1999-C2
Re: LB Commercial Mortgage Trust 1999-C2, Commercial Mortgage Pass-Though
Certificates, Series 1999-C2
In accordance with the provisions of the Pooling and Servicing Agreement,
dated as of October 1, 1999 (the "Pooling and Servicing Agreement"), among
Structured Asset Securities Corporation as depositor (the "Depositor"), First
Union National Bank as master servicer, ORIX Real Estate Capital Markets, LLC as
special servicer, LaSalle Bank National Association, as trustee (the "Trustee")
and ABN AMRO Bank N.V. as fiscal agent, with respect to LB Commercial Mortgage
Trust 1999-C2, Commercial Mortgage Pass-Through Certificates, Series 1999-C2
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class _____
Certificates.
2. The undersigned is requesting (please check as applicable):
(i) ____ information (the "Information") for use in
evaluating the possible investment described above as
identified on the schedule attached hereto pursuant to
Section 8.14 of the Pooling and Servicing Agreement; or
(ii) ____ a password pursuant to Section 4.02 of the Pooling
and Servicing Agreement for access to information (also,
the "Information") provided on the Trustee's Internet
Website.
3. In consideration of the Trustee's disclosure to the undersigned of
the Information, the undersigned will keep the Information
confidential (except from such outside person as are assisting it in
making the investment decision described in paragraph 1 above, from
its accountants and attorneys, and otherwise from such governmental
or banking authorities and agencies to which the undersigned is
subject), and such Information will not, without the prior written
consent of the Trustee, be disclosed by the
<PAGE>
undersigned or by its officers, directors, partners, employees,
agents or representatives (collectively, the "Representatives") in
any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended ( the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require
registration of any Certificate pursuant to Section 5 of the
Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER OF A
CERTIFICATE]
_____________________________________
By: _________________________________
Name: _______________________________
Title: _____________________________
W-2-2
Lehman Brothers Commercial Mortgage Trust 99 - C2
<TABLE>
<CAPTION>
Control Cut-off Date Avg. Rent
No. Property Name County Balance Utilities Paid by Tenant Pads Pads ($)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
7 Capital Senior Living - Tesson Heights St. Louis 14,934,784.08 None
8 Capital Senior Living - Veranda Club Palm Beach 13,466,280.25 None
13 Santa Fe Ridge Kitsap 10,483,873.03 None
14 Evergreen Pointe Apartments Washtenaw 10,466,052.51 Electric
18 The Pines Apartments Alamance 9,609,994.71 None
- ------------------------------------------------------------------------------------------------------------------------------------
26 Oaks of Brittany Apartments Harris 7,913,577.69 None
29 Cypress Run Apartments Richland 7,591,828.58 Electric
31 Hawk Ridge Apartments Forsyth 6,991,949.95 Electric & gas
32 Valli Hi Apartments Santa Barbara 6,988,760.11 Water/sewer, trash, gas, elect
40 East Avenue Mobile Home Park Monroe 5,728,784.87 Electric 215 400
- ------------------------------------------------------------------------------------------------------------------------------------
42 Capital Senior Living - Heatherwood Oakland 5,594,300.42 None
48 Lantern Estates Mobile Home Community Marion 4,549,336.07 Electricity, gas, cable servic 220 276
53 Park Glen Apartments Dallas 4,297,031.77 None
54 Washington Gardens Apartments Los Angeles 4,293,562.22 Electric & gas
62 Meridian Apartments Harris 3,693,741.07 Gas, electric, water, sewer
- ------------------------------------------------------------------------------------------------------------------------------------
65 Meadow Ridge Apartments Oklahoma 3,297,722.06 None
70 Forest Lawn Mobile Home Park Monroe 2,972,737.05 Electric 130 400
72 Penn Valley Mobile Home Park Nevada 2,897,839.15 Gas,elec,wat,trash,tele,cable 125 468
75 Farmington Mobile Home Park Ontario 2,771,026.30 Electric 138 336
78 Casa Serena Apartments Maricopa 2,664,951.37 None
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79 Archway Apartments Dickson 2,643,085.78 Electric, Cable
81 Wayne Forest Apartments Wayne 2,593,717.61 Electric, Cable
91 Oak Gate Apartments Collin County 2,294,691.77 None
93 Evergreen Acres Mobile Home Park Monroe 2,153,911.27 Electric, Gas, Trash 118 400
94 Caledonia Mobile Home Park Livingston 2,128,947.07 Electric 97 358
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98 Venice Way Apartments Los Angeles 2,021,757.98 Water/sewer, trash, gas, elec
103 Salisbury Mobile Home Park Wicomico 1,920,246.34 Water 195 178
109 Canandaigua Mobile Home Park Ontario 1,758,478.34 Electric 105 329
110 Hondo Parkway Apartments Los Angeles 1,757,365.01 Gas, Electric
122 Concord Court Apartments Fulton 1,196,939.59 None
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123 Manor Apartments Los Angeles 1,138,293.24 Electric, cable
127 Greenbriar on the Bayou Apartments Harris 995,205.26 Electric, water/sewer
128 Valley Ho Mobile Home Park Grand Forks 974,602.40 None 102 218
132 Wesleyville Mobile Home Park Erie 733,947.51 Electric 83 205
133 Pleasant Valley Mobile Home Park Hancock 524,248.21 Electric 80 155
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134 Lakeview Mobile Home Park Ontario 483,306.92 Electric, Water 43 290
<CAPTION>
Avg. Avg. Avg. Avg.
Control Avg. Rent Rent 1 Rent 2 Rent 3 Rent 4 Number of
No. Studios Studio ($) 1 Bed Bed ($) 2 Bed Bed ($) 3 Bed Bed ($) 4 Bed Bed ($) Elevators ($)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
7 65 2,217 109 2,035 12 2,555
8 143 2,018 46 2,410
13 24 595 112 702 104 800
14 252 526 189 643 36 730
18 18 517 63 527 111 605 24 707
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26 39 460 54 595 80 733 50 798
29 18 498 63 502 99 566 24 667
31 36 515 21 482 87 582 24 682
32 57 725 51 890 19 993
40
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42 3 1,010 137 1,328 20 1,652
48
53 97 503 51 617 10 757
54 129 500 33 625
62 104 400 48 500
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65 52 336 111 400 1 460
70
72 2 483
75
78 95 400 104 510
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79 20 445 50 520 20 610
81 32 520 68 581 8 675
91 32 475 64 698
93
94
- ------------------------------------------------------------------------------------------------------------------------------------
98 45 709 2 938
103
109
110 52 625
122 21 480 19 575 20 675
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123 22 450 26 550
127 16 430 32 579
128
132
133
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134
</TABLE>
