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STRUCTURED ASSET SECURITIES CORPORATION
Depositor
FIRST UNION NATIONAL BANK
Master Servicer
and
LENNAR PARTNERS, INC.
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION
Trustee
and
ABN AMRO BANK N.V.
Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of May 11, 2000
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$1,305,691,485
LB-UBS Commercial Mortgage Trust 2000-C3
Commercial Mortgage Pass-Through Certificates,
Series 2000-C3
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01. Defined Terms..................................................................................5
SECTION 1.02. General Interpretive Principles...............................................................62
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Mortgage Loans...............................................63
SECTION 2.02. Acceptance of Trust Fund by Trustee...........................................................64
SECTION 2.03. Repurchase of Mortgage Loans for Document Defects and Breaches of Representations and
Warranties.................................................................................66
SECTION 2.04. Representations, Warranties and Covenants of the Depositor....................................68
SECTION 2.05. Execution, Authentication and Delivery of Class R-I Certificates; Creation of REMIC I Regular
Interests..................................................................................84
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee....................84
SECTION 2.07. Execution, Authentication and Delivery of Class R-II Certificates; Creation of REMIC II Regular
Interests..................................................................................84
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by Trustee..................85
SECTION 2.09. Execution, Authentication and Delivery of REMIC III Certificates..............................85
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans..........................................................86
SECTION 3.02. Collection of Loan Payments...................................................................87
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve Accounts......89
SECTION 3.04. Pool Custodial Account, Defeasance Deposit Account, Collection Account and Interest Reserve
Account....................................................................................91
SECTION 3.04A. Cherry Creek Mall, Annapolis Mall, Westfield Portfolio and Sangertown Square Custodial
Accounts...................................................................................94
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SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account, the Collection Account and the Interest
Reserve Account............................................................................97
SECTION 3.05A. Permitted Withdrawals From the Cherry Creek Mall Custodial Account, Annapolis Mall Custodial
Account, Westfield Portfolio Custodial Account and Sangertown Square Custodial Account....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................................116
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain Matters Regarding Servicing Advances....117
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain Reports........122
SECTION 3.12A. Delivery of Certain Reports to the Companion Loan Noteholders................................125
SECTION 3.12B. Statements to Companion Loan Noteholders.....................................................126
SECTION 3.13. Annual Statement as to Compliance............................................................126
SECTION 3.14. Reports by Independent Public Accountants....................................................127
SECTION 3.15. Access to Certain Information................................................................128
SECTION 3.16. Title to REO Property; REO Accounts..........................................................128
SECTION 3.17. Management of REO Property...................................................................130
SECTION 3.17A. Management and Disposition of the Cherry Creek Mall Mortgaged Property, Annapolis Mall
Mortgaged Property, Westfield Portfolio Mortgaged Property and Sangertown Square Mortgaged
Property After Becoming REO Property......................................................133
SECTION 3.18. Sale of Mortgage Loans and REO Properties....................................................136
SECTION 3.19. Additional Obligations of the Master Servicer; the Special Servicer's Right to Request the
Master Servicer to Make Servicing Advances................................................140
SECTION 3.20. Modifications, Waivers, Amendments and Consents..............................................141
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping...........147
SECTION 3.22. Sub-Servicing Agreements.....................................................................148
SECTION 3.23. Representations and Warranties of the Master Servicer........................................151
SECTION 3.24. Representations and Warranties of the Special Servicer.......................................152
SECTION 3.25. Credit Leases................................................................................154
SECTION 3.26. Certain Matters Regarding the Purchase of the Cherry Creek Mall Mortgage Loan, the Annapolis
Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan and the Sangertown Square Mortgage
Loan......................................................................................155
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions................................................................................157
SECTION 4.02. Statements to Certificateholders; CMSA Loan Periodic Update File Report......................167
SECTION 4.03. P&I Advances.................................................................................174
SECTION 4.03A. P&I Advances on the Loan Pairs...............................................................176
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses.............................178
SECTION 4.05. Calculations.................................................................................179
SECTION 4.06. Use of Agents................................................................................180
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.............................................................................181
SECTION 5.02. Registration of Transfer and Exchange of Certificates........................................181
SECTION 5.03. Book-Entry Certificates......................................................................187
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates............................................188
SECTION 5.05. Persons Deemed Owners........................................................................189
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer.................................190
SECTION 6.02. Merger, Consolidation or Conversion of Depositor, Master Servicer or Special Servicer........190
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and Special Servicer...................190
SECTION 6.04. Resignation of Master Servicer and the Special Servicer......................................192
SECTION 6.05. Rights of Depositor, Trustee and Companion Loan Noteholders in Respect of Master Servicer and
the Special Servicer......................................................................192
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate with Trustee....................193
SECTION 6.07. Depositor, Special Servicer, Trustee and Companion Loan Noteholder to Cooperate with Master
Servicer..................................................................................193
SECTION 6.08. Depositor, Master Servicer, Trustee and Companion Loan Noteholder to Cooperate with Special
Servicer..................................................................................193
SECTION 6.09. Designation of Special Servicer and Controlling Class Representative by the
Controlling Class.........................................................................193
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SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate................................194
SECTION 6.11. Certain Powers of the Controlling Class Representative.......................................195
SECTION 6.11A. Certain Powers of the Companion Loan Noteholders.............................................198
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default............................................................................201
SECTION 7.02. Trustee to Act; Appointment of Successor.....................................................206
SECTION 7.03. Notification to Certificateholders...........................................................207
SECTION 7.04. Waiver of Events of Default..................................................................207
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.........................................207
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee............................................................................209
SECTION 8.02. Certain Matters Affecting Trustee............................................................210
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of Certificates or Mortgage
Loans.....................................................................................211
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates................................................211
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee..............................212
SECTION 8.06. Eligibility Requirements for Trustee.........................................................212
SECTION 8.07. Resignation and Removal of Trustee...........................................................213
SECTION 8.08. Successor Trustee............................................................................214
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent..........................................215
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................................................215
SECTION 8.11. Appointment of Custodians....................................................................216
SECTION 8.12. Appointment of Authenticating Agents.........................................................217
SECTION 8.13. Appointment of Tax Administrators............................................................217
SECTION 8.14. Access to Certain Information................................................................218
SECTION 8.15. Reports to the Securities and Exchange Commission and Related Reports........................220
SECTION 8.16. Representations and Warranties of Trustee....................................................222
SECTION 8.17. The Fiscal Agent.............................................................................224
SECTION 8.18. Representations and Warranties of Fiscal Agent...............................................225
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans.............................227
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SECTION 9.02. Additional Termination Requirements..........................................................234
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.........................................................................235
SECTION 10.02. Grantor Trust Administration.................................................................238
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment....................................................................................241
SECTION 11.02. Recordation of Agreement; Counterparts.......................................................243
SECTION 11.03. Limitation on Rights of Certificateholders and Companion Loan Noteholders....................243
SECTION 11.04. Governing Law................................................................................244
SECTION 11.05. Notices......................................................................................244
SECTION 11.06. Severability of Provisions...................................................................245
SECTION 11.07. Grant of a Security Interest.................................................................245
SECTION 11.08. Streit Act...................................................................................245
SECTION 11.09. Successors and Assigns; Beneficiaries........................................................246
SECTION 11.10. Article and Section Headings.................................................................246
SECTION 11.11. Notices to Rating Agencies...................................................................246
SECTION 11.12. Global Opinions..............................................................................248
SECTION 11.13. Complete Agreement...........................................................................248
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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
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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] [G] Certificate
A-4 Form of Class [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 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
O Form of REO Status Report
P Form of Servicer Watch List
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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
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This Pooling and Servicing Agreement (this "AGREEMENT") is
dated and effective as of May 11, 2000, among STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor, FIRST UNION NATIONAL BANK, as Master Servicer, LENNAR
PARTNERS, INC., 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, which are to
be issued hereunder in multiple Classes and which in the aggregate will evidence
the entire beneficial ownership interest in the Trust Fund.
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 last Rated Final Distribution Date. None
of the REMIC I Regular Interests will be certificated.
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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 last Rated Final Distribution Date.
None of the REMIC II Regular Interests will be certificated.
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INITIAL
REMIC II UNCERTIFICATED
DESIGNATION REMITTANCE RATE PRINCIPAL BALANCE
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A-1 Variable (1) $ 400,000,000
A-2 Variable (1) $ 641,288,000
B Variable (1) $ 71,813,000
C Variable (1) $ 48,964,000
D Variable (1) $ 19,585,000
E Variable (1) $ 13,057,000
F Variable (1) $ 13,057,000
G Variable (1) $ 11,751,000
H Variable (1) $ 20,891,000
J Variable (1) $ 16,322,000
K Variable (1) $ 9,792,000
L Variable (1) $ 10,446,000
M Variable (1) $ 11,751,000
N Variable (1) $ 3,917,000
P Variable (1) $ 13,057,485
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(1) Calculated in accordance with the definition of "REMIC II Remittance Rate".
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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 last Rated Final Distribution Date.
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CLASS CLASS
DESIGNATION PASS-THOUGH RATE PRINCIPAL BALANCE
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Class A-1 Variable (1) $ 400,000,000
Class A-2 Variable (1) $ 641,288,000
Class B Variable (1) $ 71,813,000
Class C Variable (1) $ 48,964,000
Class D Variable (1) $ 19,585,000
Class E Variable (1) $ 13,057,000
Class F Variable (1) $ 13,057,000
Class G Variable (1) $ 11,751,000
Class X Variable (1) $ 1,305,691,485(2)
Class H Variable (1) $ 20,891,000
Class J Variable (1) $ 16,322,000
Class K Variable (1) $ 9,792,000
Class L Variable (1) $ 10,446,000
Class M Variable (1) $ 11,751,000
Class N Variable (1) $ 3,917,000
Class P Variable (1) $ 13,057,485
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(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.
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The aggregate Cut-off Date Balance of the Mortgage Loans will
be $1,305,691,486. 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 $1,305,691,485.
There exist four mortgage loans, the first in the original
principal amount of $28,502,082 (the "CHERRY CREEK MALL COMPANION LOAN"), the
second in the original principal amount of $21,099,647 (the "ANNAPOLIS MALL
COMPANION LOAN"), the third in the original principal amount of $30,066,418 (the
"WESTFIELD PORTFOLIO COMPANION LOAN"), and the last in the original principal
amount of $14,133,833 (the "SANGERTOWN SQUARE 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. These Mortgage Loans are
identified herein as the "Cherry Creek Mall Mortgage Loan", the "Annapolis Mall
Mortgage Loan", the "Westfield Portfolio Mortgage Loan", and the "Sangertown
Square Mortgage Loan", respectively.
The Cherry Creek Mall Companion Loan is currently held by
LaSalle Bank National Association, in its capacity as trustee for the registered
holders of the Cherry Creek Mall Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2000-C1A (in such capacity, the "CHERRY CREEK
MALL TRUSTEE"); the Annapolis Mall Companion Loan is currently held by LaSalle
Bank National Association, in its capacity as trustee for the registered holders
of the Annapolis Mall Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2000-C1B (in such capacity, the "ANNAPOLIS MALL TRUSTEE");
the Westfield Portfolio Companion Loan is currently held by LaSalle Bank
National Association, in its capacity as trustee for the registered holders of
the Westfield Portfolio Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2000-C1C (in such capacity, the "WESTFIELD PORTFOLIO
TRUSTEE"); and the Sangertown Square Companion Loan is currently held by LaSalle
Bank National Association, in its capacity as trustee for the registered holders
of the Sangertown Square Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2000-C1D (in such capacity, the "SANGERTOWN SQUARE
TRUSTEE").
As and to the extent provided herein, the Cherry Creek Mall
Companion Loan, the Annapolis Mall Companion Loan, the Westfield Portfolio
Companion Loan and the Sangertown Square Companion Loan will all be serviced and
administered in accordance with this Agreement.
Capitalized terms used but not otherwise defined in this
Preliminary Statement have the respective meanings assigned thereto in SECTION
1.01 of this Agreement.
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:
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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.
"ABN AMRO": ABN AMRO Bank N.V. or its successor in interest.
"ACCRUED CERTIFICATE INTEREST": The interest accrued from time
to time with respect to any Class of Regular Interest Certificates, the amount
of which interest shall equal: (a) in the case of any Class of Principal Balance
Certificates for any Interest Accrual Period, one-twelfth of the product of (i)
the Pass-Through Rate applicable to such Class of Certificates for such Interest
Accrual Period, multiplied by (ii) the Class Principal Balance of such Class of
Certificates outstanding immediately prior to the related Distribution Date; and
(b) in the case of the Class X Certificates for any Interest Accrual Period, the
aggregate amount of Accrued Component Interest for all of such Class' Components
for such Interest Accrual Period.
"ACCRUED COMPONENT INTEREST": The interest accrued from time
to time with respect to any Component of the Class X Certificates, the amount of
which interest shall equal, for any Interest Accrual Period, one-twelfth of the
product of (i) the Pass-Through Rate applicable to such Component for such
Interest Accrual Period, multiplied by (ii) the Component Notional Amount of
such Component outstanding immediately prior to the related Distribution Date.
"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 interest accrual period 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 Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such ARD Loan, be deferred until the entire
outstanding principal balance thereof has been paid), together with all
interest, if any, accrued at the related Mortgage Rate on such deferred
interest. For purposes of this Agreement, Additional Interest on an ARD Loan or
any successor REO Loan shall be deemed not to constitute principal or any
portion
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thereof and shall not be added to the unpaid principal balance or Stated
Principal Balance of such ARD Loan or any successor REO Loan, notwithstanding
that the terms of the related loan documents so permit. To the extent that any
Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
"ADDITIONAL INTEREST RATE": With respect to any ARD Loan after
its Anticipated Repayment Date, the incremental increase in the Mortgage Rate
for such 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.
"ADJUSTED ACTUAL/360 ACCRUED INTEREST AMOUNT": With respect to
any Mortgage Loan (or any successor REO Loan) that accrues interest on an
Actual/360 Basis, for any Interest Accrual Period, an amount of interest equal
to the product of (x) the Mortgage Rate in effect for such Mortgage Loan (or
successor REO Loan) as of the commencement of such Interest Accrual Period
(without regard to any modifications, waivers or amendments of such Mortgage
Loan subsequent to the Closing Date and, in the case of an ARD Loan (or
successor REO Loan) after the related Anticipated Repayment Date, net of the
related Additional Interest Rate), multiplied by (y) a fraction, the numerator
of which is the number of days in such Interest Accrual Period, and the
denominator of which is 360, multiplied by (z) the Stated Principal Balance of
such Mortgage Loan (or successor REO Loan) immediately prior to the Distribution
Date that corresponds to such Interest Accrual Period; PROVIDED that if such
Interest Accrual Period begins (i) during December of 2000 or December of any
year thereafter that does not immediately precede a leap year or (ii) during
January of 2001 or January of any year thereafter, then the Adjusted Actual/360
Accrued Interest Amount with respect to such Mortgage Loan (or successor REO
Loan) for such Interest Accrual Period, as calculated without regard to this
proviso, shall be decreased by the Interest Reserve Amount, if any, transferred
from the Collection Account to the Interest Reserve Account in the following
calendar month in accordance with SECTION 3.04(c) with respect to such Mortgage
Loan (or successor REO Loan); and PROVIDED, FURTHER, that if such Interest
Accrual Period begins during February of 2001 or February of any year
thereafter, then the Adjusted Actual/360 Accrued Interest Amount with respect to
such Mortgage Loan (or successor REO Loan) for such Interest Accrual Period, as
calculated without regard to this proviso, shall be increased by the Interest
Reserve Amount(s), if any, transferred from the Interest Reserve Account to the
Collection Account in the following calendar month in accordance with SECTION
3.05(c) with respect to such Mortgage Loan (or successor REO Loan).
"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.
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"ADVANCE": Any P&I Advance or Servicing Advance.
"ADVERSE GRANTOR TRUST EVENT:" Any endangerment to the status
of the Grantor Trust as a grantor trust under the Grantor Trust Provisions or
any imposition of a tax on the Grantor Trust or any of its assets or
transactions.
"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": With respect to any REMIC Pool, any
endangerment of the status of such REMIC Pool as a REMIC under the REMIC
Provisions or, except as permitted by SECTION 3.17(a), any imposition of a tax
on such REMIC Pool or any of its assets or transactions (including the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on prohibited contributions set forth in Section 860G(d) of the Code).
"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.
"AGREEMENT": This Pooling and Servicing Agreement, together
with all amendments hereof and supplements hereto.
"ANNAPOLIS MALL CO-LENDER AND SERVICING AGREEMENT": The
Co-Lender and Servicing Agreement, dated as of April 19, 2000, among the
Annapolis Mall Noteholders, First Union as master servicer, and LaSalle as
custodian.
"ANNAPOLIS MALL COMPANION LOAN": As defined in the Preliminary
Statement.
"ANNAPOLIS MALL CUSTODIAL ACCOUNT": A segregated account or
accounts created and maintained by the Master Servicer pursuant to SECTION 3.04A
on behalf of the Annapolis Mall Noteholders, which shall be entitled "[NAME OF
MASTER SERVICER], as Master Servicer, in trust for [NAMES OF ANNAPOLIS MALL
NOTEHOLDERS], as their interests may appear".
"ANNAPOLIS MALL FISCAL AGENT": ABN AMRO, in its capacity as
fiscal agent under that certain Trust Agreement, dated as of April 19, 2000,
among UBS Asset Securitization Corp. as depositor, LaSalle as trustee and ABN
AMRO as fiscal agent.
"ANNAPOLIS MALL LOAN PAIR": Collectively, the Annapolis Mall
Mortgage Loan and the Annapolis Mall Companion Loan (and any successor REO
Loans).
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"ANNAPOLIS MALL MORTGAGED PROPERTY": The Mortgaged Property
securing the Annapolis Mall Loan Pair.
"ANNAPOLIS MALL MORTGAGE LOAN": The Mortgage Loan identified
on the Mortgage Loan Schedule by control number 2, which Mortgage Loan is,
together with the Annapolis Mall Companion Loan, secured by a Mortgage on the
retail property identified on the Mortgage Loan Schedule as Annapolis Mall.
"ANNAPOLIS MALL NOTEHOLDERS": Collectively, the holder of the
Mortgage Note for the Annapolis Mall Mortgage Loan and the holder of the
Mortgage Note for the Annapolis Mall Companion Loan.
"ANNAPOLIS MALL REO ACCOUNT": A segregated account or accounts
created and maintained by the Special Servicer pursuant to SECTION 3.16 on
behalf of the Annapolis Mall Noteholders, which shall be entitled "[NAME OF
SPECIAL SERVICER], as Special Servicer, in trust for [NAMES OF ANNAPOLIS MALL
NOTEHOLDERS], as their interests may appear".
"ANNAPOLIS MALL REMITTANCE DATE": The "Remittance Date" under
the Annapolis Mall Co-Lender and Servicing Agreement.
"ANNAPOLIS MALL RESERVE ACCOUNT": As defined in
SECTION 3.03(d).
"ANNAPOLIS MALL SERVICING ACCOUNT": As defined in
SECTION 3.03(a).
"ANNAPOLIS MALL TRUSTEE": As defined in the Preliminary
Statement.
"ANNUAL ACCOUNTANTS' REPORT": As defined in SECTION 3.14
"ANNUAL PERFORMANCE CERTIFICATION": As defined in SECTION
3.13.
"ANTICIPATED REPAYMENT DATE": With respect to any ARD Loan,
the date specified in the related Mortgage Note after which the Mortgage Rate
for such ARD Loan will increase as specified in the related Mortgage Note.
"APPRAISAL REDUCTION AMOUNT": With respect to any Required
Appraisal Loan, an amount (calculated as of 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
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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 $2,000,000, a "desktop" value estimate performed by the Special
Servicer.
"ARD LOAN": Any Mortgage Loan or Companion Loan that provides
that if the unamortized principal balance thereof is not repaid on its
Anticipated Repayment Date, such Mortgage Loan or Companion Loan, as the case
may be, 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.
"ARD MORTGAGE LOAN": Any Mortgage Loan that is an ARD Loan.
"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
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Custodial Account and the Collection Account with respect to the respective
Mortgage Loans and REO Properties as of the close of business on the related
Determination Date, together with any amounts collected by or on behalf of the
Master Servicer with respect to the respective Mortgage Loans and REO Properties
as of the close of business on the related Determination Date and required to be
(but, as of such time, not yet) deposited in the 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 Cherry Creek
Mall Mortgage Loan, the Annapolis Mall Mortgage Loan, the Westfield Portfolio
Mortgage Loan or the Sangertown Square 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 2001 or any year thereafter, 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 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 during January of 2001 or January of any year thereafter that is not
a leap year or during February of 2001 or February of any year thereafter, 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 payment, other than any regularly scheduled
monthly payment, due with respect to such Mortgage Loan at maturity.
"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
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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, 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,
or in each of the cities in which the Cherry Creek Mall Mortgaged Property, the
Annapolis Mall Mortgaged Property, the Westfield Portfolio Mortgaged Property or
the Sangertown Square Mortgaged Property is located, are authorized or obligated
by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERTIFICATE": Any one of the LB-UBS Commercial Mortgage Trust
2000-C3, Commercial Mortgage Pass-Through Certificates, Series 2000-C3, 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 balance of such Certificate equal to the product of (a) the then
Certificate Factor for the Class of Principal Balance Certificates to which such
Certificate
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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 Disqualified 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 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.
"CHERRY CREEK MALL CO-LENDER AND SERVICING AGREEMENT": The
Co-Lender and Servicing Agreement, dated as of April 7, 2000, among the Cherry
Creek Mall Noteholders, First Union as master servicer, and LaSalle as
custodian.
"CHERRY CREEK MALL COMPANION LOAN": As defined in the
Preliminary Statement.
"CHERRY CREEK MALL CUSTODIAL ACCOUNT": A segregated account or
accounts created and maintained by the Master Servicer pursuant to SECTION 3.04A
on behalf of the Cherry Creek Mall Noteholders, which shall be entitled "[NAME
OF MASTER SERVICER], as Master Servicer, in trust for [NAMES OF CHERRY CREEK
MALL NOTEHOLDERS], as their interests may appear".
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"CHERRY CREEK MALL FISCAL AGENT": ABN AMRO, in its capacity as
fiscal agent under that certain Trust Agreement, dated as of April 7, 2000,
among UBS Asset Securitization Corp. as depositor, LaSalle as trustee, and ABN
AMRO as fiscal agent.
"CHERRY CREEK MALL LOAN PAIR": Collectively, the Cherry Creek
Mall Mortgage Loan and the Cherry Creek Mall Companion Loan (and any successor
REO Loans).
"CHERRY CREEK MALL MORTGAGED PROPERTY": The Mortgaged Property
securing the Cherry Creek Mall Loan Pair.
"CHERRY CREEK MALL MORTGAGE LOAN": The Mortgage Loan
identified on the Mortgage Loan Schedule by control number 1, which Mortgage
Loan is, together with the Cherry Creek Mall Companion Loan, secured by a
Mortgage on the retail property identified on the Mortgage Loan Schedule as
Cherry Creek Mall.
"CHERRY CREEK MALL NOTEHOLDERS": Collectively, the holder of
the Mortgage Note for the Cherry Creek Mall Mortgage Loan and the holder of the
Mortgage Note for the Cherry Creek Mall Companion Loan.
"CHERRY CREEK MALL REO ACCOUNT": A segregated account or
accounts created and maintained by the Special Servicer pursuant to SECTION 3.16
on behalf of the Cherry Creek Mall Noteholders, which shall be entitled "[NAME
OF SPECIAL SERVICER], as Special Servicer, in trust for [NAMES OF CHERRY CREEK
MALL NOTEHOLDERS], as their interests may appear".
"CHERRY CREEK MALL REMITTANCE DATE": The "Remittance Date"
under the Cherry Creek Mall Co-Lender and Servicing Agreement.
"CHERRY CREEK MALL RESERVE ACCOUNT": As defined in
SECTION 3.03(d).
"CHERRY CREEK MALL SERVICING ACCOUNT": As defined in
SECTION 3.03(a).
"CHERRY CREEK MALL TRUSTEE": As defined in the Preliminary
Statement.
"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.
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"CLASS A PRINCIPAL DISTRIBUTION CROSS-OVER DATE": The first
Distribution Date as of the commencement of which (i) the Class A-1 and 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.
"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-3 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.
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"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 (i) a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions and (ii) and a PRO RATA
undivided interest in the Grantor Trust.
"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 balance of
any Class of Principal Balance Certificates outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each such
Class of Certificates shall equal the Original Class Principal Balance thereof.
On each Distribution Date, the Class Principal Balance of each such Class of
Certificates shall be permanently reduced by the amount of any distributions of
principal made thereon on such Distribution Date pursuant to SECTION 4.01 or
9.01, as applicable, and shall be further permanently reduced by the amount of
any Realized Losses and Additional Trust Fund Expenses deemed allocated thereto
on such Distribution Date pursuant to SECTION 4.04(a).
"CLASS R-I CERTIFICATE": Any one of the Certificates with a
"CLASS R-I" designation on the face thereof, substantially in the form of
EXHIBIT A-5 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC I for purposes of the REMIC Provisions.
"CLASS R-II CERTIFICATE": Any one of the Certificates with a
"CLASS R-II" designation on the face thereof, substantially in the form of
EXHIBIT A-5 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC II for purposes of the REMIC Provisions.
"CLASS R-III CERTIFICATE": Any one of the Certificates with a
"CLASS R-III" designation on the face thereof, substantially in the form of
EXHIBIT A-5 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC III for purposes of the REMIC Provisions.
"CLASS X CERTIFICATE": Any one of the Certificates with a
"CLASS X" designation on the face thereof, substantially in the form of EXHIBIT
A-2 attached hereto, and evidencing a portion of each of the Components, each of
which Components shall constitute a separate "regular interest" in REMIC III for
purposes of the REMIC Provisions.
"CLOSING DATE": May 18, 2000.
"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
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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": Any of the Cherry Creek
Mall Co-Lender and Servicing Agreement, the Annapolis Mall Co-Lender and
Servicing Agreement, the Westfield Portfolio Co-Lender and Servicing Agreement
or the Sangertown Square Co-Lender and Servicing Agreement.
"COLLECTION ACCOUNT": The segregated account or accounts
created and maintained by the Trustee pursuant to SECTION 3.04(b), which shall
be entitled "LaSalle Bank National Association [OR NAME OF ANY SUCCESSOR
TRUSTEE], as Trustee, in trust for the registered holders of LB-UBS Commercial
Mortgage Trust 2000-C3, Commercial Mortgage Pass-Through Certificates, Series
2000-C3".
"COLLECTION PERIOD": With respect to any Distribution Date and
Mortgage Loan, the period commencing on the day immediately following the
Determination Date for such Mortgage Loan 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 for such Mortgage Loan in the calendar
month in which such Distribution Date occurs.
"COMMISSION": The Securities and Exchange Commission or any
successor agency.
"COMPANION LOAN": Each of the Cherry Creek Mall Companion
Loan, the Annapolis Mall Companion Loan, the Westfield Portfolio Companion Loan
and the Sangertown Square Companion Loan.
"COMPANION LOAN NOTEHOLDER": With respect to each Companion
Loan, the holder of the related Mortgage Note.
"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
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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.
"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.
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"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.
"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
such Component's 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
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 that has a Certificate Principal Balance greater than zero; and
PROVIDED, FURTHER, that, for purposes of 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
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1625, Chicago, Illinois 60603, Attention: Asset Backed Securities Trust Services
Group - LB-UBS Commercial Mortgage Trust 2000-C3.
"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 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
Cherry Creek Mall Custodial Account, the Annapolis Mall Custodial Account, the
Westfield Portfolio Custodial Account or the Sangertown Square 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": May 11, 2000.
"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.
"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 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 the holder of such
loan 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": SASCO.
"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": The 11th calendar day of each month (or,
if such 11th day is not a Business Day, the Business Day immediately following),
commencing in June 2000, PROVIDED that the Determination Date with respect to
the Sangertown Square Mortgage Loan and the Sangertown Square 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. References in this Agreement to "Determination
Date" in the context of the timing of the provision by the Master Servicer or
the Special Servicer of information on the Mortgage Loans on an aggregate basis
are to the Determination Date that is the 11th calendar day of each month (or
the following Business Day, if such 11th calendar day is not a Business Day).
"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 as published in Federal Reserve Statistical Release
H.15 (519) published by the Federal Reserve Board; 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 NON-UNITED STATES PERSON": With respect to any
Residual Interest Certificate, any Non-United States Person or agent thereof
other than (1) a Non-United States Person that (a) holds such Residual Interest
Certificate and, for purposes of Treasury Regulation Section 1.860G-3(a)(3), is
subject to tax under Section 882 of the Code, (b) certifies that it understands
that, for purposes of Treasury Regulation Section 1.860E-1(c)(4)(ii), as a
holder of such Residual Interest Certificate for United States federal income
tax purposes, it may incur tax liabilities in excess of any cash flows generated
by such Residual Interest Certificate and intends to pay taxes associated with
holding such Residual Interest Certificate, and (c) has furnished the Transferor
and the Trustee with an effective IRS Form 4224 or Form W-8ECI and has agreed to
update such form as required under the applicable Treasury Regulations, or (2) a
Non-United States Person that has delivered to the Transferor, the Trustee and
the Certificate Registrar an opinion of nationally recognized tax counsel to the
effect that (x) the Transfer of such Residual Interest Certificate to it is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and (y) such Transfer of such Residual Interest Certificate will not
be disregarded for United States federal income tax purposes.
"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 Tax 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, an amount of
interest equal to the amount of Accrued Certificate Interest in respect of such
Class of Certificates for the related Interest Accrual Period, 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 the amount of
any Accrued Certificate Interest in respect of the particular Class of
Certificates for the related Interest Accrual Period; 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
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PRO RATA in accordance with, the respective amounts of Accrued Certificate
Interest for each such Class of Senior Certificates for the related Interest
Accrual Period.
"DISTRIBUTABLE COMPONENT INTEREST": With respect to any
Component of the Class X Certificates for any Distribution Date, an amount of
interest equal to the amount of Accrued Component Interest in respect of such
Component for the related Interest Accrual Period, 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 amount of any Accrued Component Interest in respect of such Component for
the related Interest Accrual Period, and the denominator of which is the amount
of the Accrued Certificate Interest in respect of the Class X Certificates for
the related Interest Accrual Period.
"DISTRIBUTION DATE": The fourth Business Day following the
11th calendar day of each month (or, if such 11th calendar day is not a Business
Day, the fifth Business Day following), commencing in June 2000.
"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 (if then rated by Moody's, and if not then rated by Moody's, then an
equivalent rating by at least one nationally recognized statistical rating
agency besides Fitch) and "AA" by Fitch (if then rated by Fitch, and if not then
rated by Fitch, 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
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the account does not relate solely to any Loan Pair, such lower rating as will
not result in an Adverse Rating Event, as evidenced in writing by such Rating
Agency) at any time such funds are on deposit therein (if such funds are to be
held for more than 30 days), or the short-term deposits of which are rated "P-1"
by Moody's (if then rated by Moody's, and if not then rated by Moody's, then an
equivalent rating by at least one nationally recognized statistical rating
agency besides Fitch) and "F-1+" by Fitch (if then rated by Fitch, and if not
then rated by Fitch, 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 any Loan Pair,
such lower rating as will not result in an Adverse Rating Event, as evidenced in
writing by such Rating Agency), at any time such funds are on deposit therein
(if such funds are to be held for 30 days or less), or (ii) a segregated trust
account or accounts maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity, which 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 '
9.10(b), or (iii) so long as the account does not relate solely to any 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 the ASTM Standard for Environmental Site Assessments, each as amended
from time to time.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"ESCROW PAYMENT": Any payment received by the Master Servicer
or the Special Servicer for the account of any Mortgagor for application toward
the payment of real estate taxes, assessments, insurance premiums, ground rents
(if applicable) and other items for which an escrow has been created in respect
of the related Mortgaged Property.
"EVENT OF DEFAULT": One or more of the events described in
SECTION 7.01(a).
"EXCHANGE ACT": The Securities Exchange Act of 1934, as
amended.
"EXCLUDED CLASSES": The Class 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 the UBS Mortgage Loan Seller pursuant
to the UBS/Depositor Mortgage Loan Purchase Agreement, 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, Lehman Brothers or a Controlling Class
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Certificateholder pursuant to SECTION 9.01, and other than the Cherry Creek Mall
Mortgage Loan, the Annapolis Mall Mortgage Loan, the Westfield Portfolio
Mortgage Loan or the Sangertown Square 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, in its capacity as fiscal agent
hereunder, or any successor fiscal agent appointed as herein provided.
"FITCH": Fitch IBCA, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Fitch" 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 Fitch IBCA, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"GLOBAL OPINION": As defined in SECTION 11.12.
"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 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 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.
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"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.
"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, such
Mortgage Loan Seller, the Master Servicer, the Special Servicer, such
Controlling Class Certificateholder, such 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
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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, due
to such Person's failure to be treated as an Independent Contractor.
"INSTITUTIONAL ACCREDITED INVESTOR": An "accredited investor"
as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or any entity in which all of the equity owners come within such
paragraphs.
"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.
"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.
"INSURED EVENT": As defined in SECTION 3.25.
"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 period commencing on the 11th calendar day of the month
immediately preceding the month in which such Distribution Date occurs and
ending on the 10th calendar day of 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-UBS Commercial Mortgage Trust 2000-C3,
Commercial Mortgage Pass-Through Certificates, Series 2000-C3".
"INTEREST RESERVE AMOUNT": With respect to each Interest
Reserve Loan and each Distribution Date that occurs during February of 2001 and
February of each year thereafter and during January of 2001 and January of each
year thereafter 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
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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).
"IRS": The Internal Revenue Service or any successor agency.
"LASALLE": LaSalle Bank National Association or its successor
in interest.
"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 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 May 9, 2000, between LBHI
and the Depositor.
"LBHI MORTGAGE LOAN": Any Mortgage Loan transferred by LBHI to
the Depositor, pursuant to the LBHI/Depositor Mortgage Loan Purchase Agreement.
"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 related Tenant as a result of a casualty or
condemnation, the insurer under such policy will be required to make a specified
insurance payment.
"LEGAL FINAL DISTRIBUTION DATE": With respect to any REMIC I
Regular Interest, any REMIC II Regular Interest, any Class of Regular Interest
Certificates or any particular Component of the Class X Certificates, the
"latest possible maturity date" thereof, calculated solely for purposes of
satisfying Treasury regulation section 1.860G-1(a)(4)(iii).
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"LEHMAN BROTHERS": Lehman Brothers Inc. or its successor in
interest.
"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 or the UBS Mortgage Loan Seller pursuant to the UBS/Depositor Mortgage Loan
Purchase Agreement; (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, Lehman Brothers or a Controlling Class
Certificateholder pursuant to SECTION 9.01; or (v) in the case of each of the
Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage Loan, the Westfield
Portfolio Mortgage Loan and the Sangertown Square 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, Lehman Brothers 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 or the UBS Mortgage Loan
Seller pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement, in either
case within 180 days of the Depositor's or the UBS Mortgage Loan Seller's, as
the case may be, notice or discovery of the Breach or Document Defect giving
rise to such repurchase obligation, (ii) purchased by a Controlling Class
Certificateholder pursuant to SECTION 3.18(b), (iii) purchased by the Master
Servicer or the Special Servicer pursuant to SECTION 3.18(c), (iv) purchased by
the Depositor, the Master Servicer, the Special Servicer, Lehman Brothers 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
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Loan by the Depositor pursuant to SECTION 2.03 or the UBS Mortgage Loan Seller
pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement; (vi) the
purchase of a Mortgage Loan or REO Property by the Depositor, the Master
Servicer, the Special Servicer, Lehman Brothers or a Controlling Class
Certificateholder pursuant to SECTION 9.01; or (vii) in the case of each of the
Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage Loan, the Westfield
Portfolio Mortgage Loan and the Sangertown Square 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": Any of the Cherry Creek Mall Loan Pair, the
Annapolis Mall Loan Pair, the Westfield Portfolio Loan Pair and the Sangertown
Square Loan Pair.
"LOAN PAIR REMITTANCE DATE": Any of the Cherry Creek Mall
Remittance Date, the Annapolis Mall Remittance Date, the Westfield Portfolio
Remittance Date or the Sangertown Square 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.
"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 Loan after its Anticipated Repayment Date, the monthly payment
required to be paid on a current basis) of principal and/or interest on such
Mortgage Loan or Companion Loan, as the case may be, 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
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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), including any Balloon Payment payable in respect of such Mortgage Loan or
Companion Loan on such Due Date; 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 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.
"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-UBS Commercial Mortgage Trust
2000-C3, Commercial Mortgage Pass-Through Certificates, Series 2000-C3"
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-UBS Commercial Mortgage Trust 2000-C3, Commercial
Mortgage Pass-Through Certificates, Series 2000-C3", and, in the case
of each Loan Pair, in its capacity as lead lender on behalf of the
related Companion Loan Noteholder;
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(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-UBS Commercial
Mortgage Trust 2000-C3, Commercial Mortgage Pass-Through Certificates,
Series 2000-C3", and, in the case of each 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, with evidence of
recording indicated thereon if the instrument being modified is a
recordable document;
(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 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-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Through Certificates, Series 2000-C3", and, in the case of each
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) an original of any guaranty of payment under such
Mortgage Loan;
(xii) an original or copy of any lock-box agreement or cash
management agreement relating to such Mortgage Loan;
(xiii) if such Mortgage Loan is a Credit Lease Loan, an
original or copy of the Credit Lease and any Lease Enhancement Policy;
(xiv) if such Mortgage Loan is a Credit Lease Loan and a
Balloon Loan, an original or copy of any Residual Value Insurance
Policy;
(xv) an original or copy of any environmental indemnity from
the related Mortgagor;
(xvi) 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
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(xvii) 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-UBS Commercial Mortgage Trust
2000-C3, Commercial Mortgage Pass-Through Certificates, Series
2000-C3", and, in the case of each 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)-(xvii) of this definition, shall be deemed to include such
documents only to the extent the Trustee or Custodian has actual knowledge of
their existence.
"MORTGAGE LOAN": Each of the mortgage loans listed on the
Mortgage Loan Schedule and from time to time held in the Trust Fund. As used
herein, the term "Mortgage Loan" includes the related Mortgage Note, Mortgage
and other security documents contained in the related Mortgage File.
"MORTGAGE LOAN PURCHASE AGREEMENTS": The LBHI/Depositor
Mortgage Loan Purchase Agreement and the UBS/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;
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(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;
(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 the UBS Mortgage Loan
Seller.
"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 the related Collection
Period, 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 each Mortgage Loan and each
Companion Loan (and, in either case, any successor REO Loan), the related
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
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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 of the Annapolis Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan,
the Sangertown Square Mortgage Loan and each Companion Loan, the related
annualized rate referred to in the preceding sentence is the weighted average of
the annualized rates at which interest is scheduled (in the absence of a
default) to accrue on the respective components of each such Mortgage Loan or
Companion Loan. In the case of each ARD Loan, the related Mortgage Rate shall
increase in accordance with the related Mortgage Note if the particular loan is
not paid in full by its Anticipated Repayment Date.
"MORTGAGED PROPERTY": The real property subject to the lien of
a Mortgage.
"MORTGAGOR": The obligor or obligors on a Mortgage Note and,
if different from the obligor, the owner or owners of the related Mortgaged
Property, including any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note or
the owner of the Mortgaged Property in respect of such Mortgage Note and/or the
related Mortgage Loan.
"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, 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 (and any successor REO 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.
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"NEW LEASE": Any lease of REO Property entered into at the
direction of the Special Servicer, including any lease renewed, modified or
extended on behalf of the Trustee and, in the case of a Loan Pair, the related
Companion Loan Noteholder.
"NOI ADJUSTMENT WORKSHEET": A report prepared by the Master
Servicer with respect to all the 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.
"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 H,
Class J, Class K, Class L, Class M, Class N, Class P, Class R-I, Class R-II and
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
Mortgage Loan and REO Property, 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 any Companion Loan Noteholder) acceptable to and delivered to the
Trustee or any other specified Person, as the case may be.
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"ORIGINAL CLASS NOTIONAL AMOUNT": With respect to the Class X
Certificates, the initial Class Notional Amount thereof as of the Closing Date,
which is equal to $1,305,691,485.
"ORIGINAL CLASS PRINCIPAL BALANCE": With respect to any Class
of Principal Balance Certificates, the initial Class Principal Balance thereof
as of the Closing Date, in each case as specified in the Preliminary Statement.
"OTS": The Office of Thrift Supervision or any successor
thereto.
"OWNERSHIP INTEREST": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"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.
"PASS-THROUGH RATE": With respect to:
(a) the Class A-1 Certificates for any Interest Accrual
Period, an annual rate equal to the lesser of (i) 7.950% per annum and
(ii) the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period;
(b) the Class A-2 Certificates for any Interest Accrual
Period, an annual rate equal to the lesser of (i) 7.950% per annum and
(ii) the Weighted Average REMIC I Remittance Rate for such Interest
Accrual Period;
(c) the Class B Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.950% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(d) the Class C Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.950% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(e) the Class D Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.950% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(f) the Class E Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.950% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
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(g) the Class F Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.950% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(h) the Class G Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.950% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(i) the Class H Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.585% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(j) the Class J Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.585% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(k) the Class K Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.585% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(l) the Class L Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.585% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(m) the Class M Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.585% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(n) the Class N Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.585% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(o) the Class P Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 7.585% per annum and (ii) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual
Period;
(p) each Component of the Class X Certificates for any
Interest Accrual Period, an annual rate equal to the excess, if any, of (A) the
Weighted Average REMIC I Remittance Rate for such Interest Accrual Period, over
(B) the 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, for such Interest Accrual
Period; and
(q) the Class X Certificates for any Interest Accrual Period,
an annual rate equal to the weighted average (expressed as a percentage and
rounded to six decimal places) of the Pass-Through Rates applicable to the
respective Components of such Class for such Interest Accrual Period, weighted
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on the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to the related 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)(viii).
"PERMITTED INVESTMENTS": Any one or more of the following
obligations or securities (including 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 (if then rated by Moody's, and if not then rated by Moody's,
then an equivalent rating by at least one additional nationally recognized
statistical rating agency besides Fitch) and Fitch (if then rated by Fitch, and
if not then rated by Fitch, 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 any 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;
(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 (if then rated by Moody's, and if not
then rated by Moody's, then an equivalent rating by at least one additional
nationally recognized statistical rating agency besides
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Fitch) and Fitch (if then rated by Fitch, and if not then rated by Fitch, 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 any
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 (if then rated by Moody's, and
if not then rated by Moody's, then an equivalent rating by at least one
additional nationally recognized statistical rating agency besides Fitch) and
Fitch (if then rated by Fitch, and if not then rated by Fitch, 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 any
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 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;
(v) units of money market funds rated in the highest
applicable rating category of each of Moody's (if then rated by Moody's, and if
not then rated by Moody's, then an equivalent rating by at least one additional
nationally recognized statistical rating agency besides Fitch) and Fitch (if
then rated by Fitch, and if not then rated by Fitch, 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 any
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;
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.
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"PERMITTED TRANSFEREE": Any Transferee of a Residual Interest
Certificate other than (a) a Disqualified Organization, (b) any Person as to
whom, as determined by the Trustee (based upon an Opinion of Counsel, obtained
at the request of the Trustee at the expense of such Person or the Person
seeking to Transfer a Residual Interest Certificate, supporting such
determination), the Transfer of a Residual Interest Certificate may cause any
REMIC Pool to fail to qualify as a REMIC at any time that any Certificate is
outstanding, or (c) a Disqualified 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 none of its beneficial owners are Disqualified
Non-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.
"PLAN": As defined in SECTION 5.02(c).
"PLURALITY RESIDUAL INTEREST CERTIFICATEHOLDER": As to any
taxable year of any REMIC Pool, 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-UBS Commercial Mortgage Trust 2000-C3, Commercial
Mortgage Pass-Through Certificates, Series 2000-C3".
"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-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage Pass-Through
Certificates, Series 2000-C3".
"POOL RESERVE ACCOUNT": As defined in SECTION 3.03(d).
"POOL SERVICING ACCOUNT": As defined in SECTION 3.03(a).
"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
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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 to be distributed on such Class of Principal
Balance Certificates on such Distribution Date pursuant to SECTION 4.01(a) or
9.01, 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 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 and, in the case of
an ARD Loan after its Anticipated Repayment Date, further net of the related
Additional Interest 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.
"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 760 N.W. 107th
Avenue, Miami, Florida 33172.
"PRIME RATE": The "prime rate" published in the "Money Rates"
section of THE WALL STREET JOURNAL, as such "prime rate" may change from time to
time. If THE WALL STREET JOURNAL ceases to publish the "prime rate", then the
Trustee shall select an equivalent publication that publishes such "prime rate";
and if such "prime rate" is no longer generally published or is limited,
regulated or administered by a governmental or quasi-governmental body, then the
Trustee shall select a comparable interest rate index. In either case, such
selection shall be made by the Trustee in its sole discretion and the Trustee
shall notify the Fiscal Agent, the Master Servicer, the Special Servicer and
each Companion Loan Noteholder in writing of its selection.
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"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;
(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 successor 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).
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"PROSPECTUS": The prospectus dated May 26, 1999, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"PROSPECTUS SUPPLEMENT": The prospectus supplement dated May
9, 2000, 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
each of the Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage Loan,
the Westfield Portfolio Mortgage Loan and the Sangertown Square 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 Cherry Creek Mall Mortgage Loan, the
Annapolis Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan or the
Sangertown Square 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 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 BIDDER": As defined in SECTION 7.01(c).
"QUALIFIED INSTITUTIONAL BUYER": A "qualified institutional
buyer" as defined in Rule 144A under the Securities Act.
"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": With respect to the Class A-1
Certificates, the Distribution Date in May 2015; with respect to the Class A-2
Certificates, the Distribution Date in May 2025; and with respect to the other
Classes of Certificates, other than the Class P, Class X, Class R-I, Class R-II
and Class R-III Certificates, the Distribution Date in March 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
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public investment grade rating by Moody's or S&P, which Person is identified on
the Mortgage Loan Schedule.
"RATING AGENCY": Each of Moody's and Fitch.
"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)(b) 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 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 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 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, Class G 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 3.11(g) and on P&I Advances
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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 POOL": Any of REMIC I, REMIC II and REMIC III.
"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; (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; and (iv) the rights of the
Depositor under the UBS/Depositor Mortgage Loan Purchase Agreement. REMIC I
shall NOT include the Companion Loans or any payments or other collections of
principal, interest, Prepayment Premiums or Yield Maintenance Charges thereon.
"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 that, as of the Closing Date, corresponds to a Mortgage Loan that
accrues interest on a 30/360 Basis, a rate per annum that is, for any Interest
Accrual Period, equal to the Net Mortgage Rate in effect for such Mortgage Loan
(or any successor REO Loan) as of the commencement of such Interest Accrual
Period (without regard to any modifications, waivers or amendments of such
Mortgage Loan subsequent to the Closing Date); and with respect to any REMIC I
Regular Interest that, as of the Closing Date, corresponds to a Mortgage Loan
that accrues interest on an Actual/360 Basis, a rate per annum that is, for any
Interest Accrual Period, equal to (i) a fraction (expressed as a percentage),
the numerator of which is the product of 12 times the Adjusted Actual/360
Accrued Interest Amount with respect to such Mortgage Loan (or any successor REO
Loan) for such Interest Accrual Period, and the denominator of which is the
Stated Principal Balance of such Mortgage Loan (or any successor REO Loan)
immediately
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prior to the Distribution Date for such Interest Accrual Period, minus (ii) the
Administrative Cost Rate for such Mortgage Loan (or any successor REO Loan).
"REMIC II": The segregated pool of assets consisting of all of
the REMIC I Regular Interests conveyed in trust to the Trustee for the benefit
of REMIC III, as holder of the REMIC II Regular Interests, and the Holders of
the Class R-II Certificates pursuant to SECTION 2.06, with respect to which a
separate REMIC election is to be made.
"REMIC II REGULAR INTEREST": Any of the fifteen separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II Regular Interest
shall accrue interest at the REMIC II Remittance Rate in effect from time to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto. The designations for the respective REMIC II Regular Interests are set
forth in the Preliminary Statement hereto.
"REMIC II REMITTANCE RATE": With respect to each REMIC II
Regular Interest for any Distribution Date, the Weighted Average REMIC I
Remittance Rate for such Distribution Date.
"REMIC III": The segregated pool of assets consisting of all
of the REMIC II Regular Interests conveyed in trust to the Trustee for the
benefit of the Holders of the REMIC III Certificates pursuant to SECTION 2.08,
with respect to which a separate REMIC election is to be made.
"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 Cherry Creek
Mall REO Account, the Annapolis Mall REO Account, the Westfield Portfolio REO
Account or the Sangertown Square 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
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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 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; THIRD, in accordance with the normal servicing
practices of the Master Servicer, as a recovery of any other amounts due and
owing in respect of such REO Loan (exclusive, however, in the case of an REO
Loan that relates to an ARD Loan after its Anticipated Repayment Date, of any
such accrued and unpaid interest that constitutes Additional Interest); and
FOURTH, in the case of an REO Loan that relates to an ARD Loan after its
Anticipated Repayment Date, as a recovery of accrued and unpaid Additional
Interest on 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 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 3.11(g), 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.
"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 Cherry Creek Mall Mortgaged Property, the Annapolis Mall Mortgaged
Property, the Westfield Portfolio Mortgaged Property or the Sangertown Square
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 a
Companion Loan.
"REO REVENUES": All income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
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"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 Section 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 $2,000,000, a "desktop" value estimate
performed by the Special Servicer.
"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, (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) or (vii) that remains outstanding three (3) years following any
extension of its maturity date pursuant to SECTION 3.20. Any Required Appraisal
Loan (other than a Mortgage Loan that became a Required Appraisal Loan pursuant
to CLAUSE (vii) above) 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, the Mortgage Loan and Companion Loan constituting any Loan Pair
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 the sum of (i) 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, (ii) the amount of Escrow Payments and Reserve Funds held by
the Master Servicer in respect of such Required Appraisal Loan (other than (A)
Escrow Payments and Reserve Funds held in respect of any
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real estate taxes and assessments, insurance premiums and, if applicable, ground
rents, (B) Escrow Payments and Reserve Funds that are to be applied or utilized
within the twelve-month period following the date of determination and (C)
Escrow Payments and Reserve Funds that may not be applied towards the reduction
of the principal balance of such Required Appraisal Loan) and (iii) the amount
of any letter of credit constituting additional security for such Required
Appraisal Loan and that may be applied towards the reduction of the principal
balance of such Required Appraisal Loan.
"RESERVE ACCOUNT": Any of the Pool Reserve Account, the Cherry
Creek Mall Reserve Account, the Annapolis Mall Reserve Account, the Westfield
Portfolio Reserve Account or the Sangertown Square 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 or debt service on such Mortgage Loan or Companion Loan, as
the case may be.
"RESIDUAL INTEREST CERTIFICATE": A Class R-I, Class R-II or
Class R-III Certificate.
"RESIDUAL VALUE INSURANCE POLICY": With respect to any Credit
Lease Loan that is also a Balloon Mortgage Loan, an insurance policy that
insures the payment of the related Balloon Payment to the extent that the
related Mortgaged Property cannot be sold for such amount at stated maturity
because of changes in market conditions.
"RESPONSIBLE OFFICER": When used with respect to the Trustee,
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 that are the 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.
"SANGERTOWN SQUARE CO-LENDER AND SERVICING AGREEMENT": The
Co-Lender and Servicing Agreement, dated as of May 15, 2000, among the
Sangertown Square Noteholders, First Union as master servicer, and LaSalle as
custodian.
"SANGERTOWN SQUARE COMPANION LOAN": As defined in the
Preliminary Statement.
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"SANGERTOWN SQUARE CUSTODIAL ACCOUNT": A segregated account or
accounts created and maintained by the Master Servicer pursuant to SECTION 3.04A
on behalf of the Sangertown Square Noteholders, which shall be entitled "[NAME
OF MASTER SERVICER], as Master Servicer, in trust for [NAMES OF SANGERTOWN
SQUARE NOTEHOLDERS], as their interests may appear".
"SANGERTOWN SQUARE FISCAL AGENT": ABN AMRO, in its capacity as
fiscal agent under that certain Trust Agreement, dated as of May 15, 2000, among
SASCO as depositor, LaSalle as trustee, and ABN AMRO as fiscal agent.
"SANGERTOWN SQUARE LOAN PAIR": Collectively, the Sangertown
Square Mortgage Loan and the Sangertown Square Companion Loan (and any successor
REO Loans).
"SANGERTOWN SQUARE MORTGAGED PROPERTY": The Mortgaged Property
securing the Sangertown Square Loan Pair.
"SANGERTOWN SQUARE MORTGAGE LOAN": The Mortgage Loan
identified by control number 4, which Mortgage Loan is, together with the
Sangertown Square Companion Loan, secured by a Mortgage on the retail property
identified on the Mortgage Loan Schedule as Sangertown Square Mall.
"SANGERTOWN SQUARE NOTEHOLDERS": Collectively, the holder of
the Mortgage Note for the Sangertown Square Mortgage Loan and the holder of the
Mortgage Note for the Sangertown Square Companion Loan.
"SANGERTOWN SQUARE REO ACCOUNT": A segregated account or
accounts created and maintained by the Special Servicer pursuant to SECTION 3.16
on behalf of the Sangertown Square Noteholders, which shall be entitled "[NAME
OF SPECIAL SERVICER], as Special Servicer, in trust for [NAMES OF SANGERTOWN
SQUARE NOTEHOLDERS], as their interests may appear".
"SANGERTOWN SQUARE REMITTANCE DATE": The "Remittance Date"
under the Sangertown Square Co-Lender and Servicing Agreement.
"SANGERTOWN SQUARE RESERVE ACCOUNT": As defined in SECTION
3.03(d).
"SANGERTOWN SQUARE SERVICING ACCOUNT": As defined in SECTION
3.03(a).
"SANGERTOWN SQUARE TRUSTEE": As defined in the Preliminary
Statement.
"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 or Companion Loan, as the
case may be, 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, as the case may be, granted or
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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 sub-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 excess, if any, of 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 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 has been 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 25% of the related Mortgaged Property are involved
in bankruptcy or insolvency proceedings, 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
Cherry Creek Mall Servicing Account, the Annapolis Mall Servicing Account, the
Westfield Portfolio Servicing Account or the Sangertown Square 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
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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
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 3.25 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 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 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
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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 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 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 generally
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
or Companion 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": Lennar Partners, Inc. or its successor in
interest, in its capacity as special servicer hereunder, or any successor
special servicer appointed as herein provided.
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"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 SECTION 3.11(c).
"SPECIAL SERVICING FEE RATE": With respect to each Specially
Serviced Loan and each REO Loan, 0.25% per annum.
"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 resulting from a default on the
part of the Mortgagor under the related Credit Lease as specified in the third
paragraph of SECTION 3.25, 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
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(f) the related Mortgagor shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its obligations;
or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the related
Mortgaged Property;
PROVIDED, HOWEVER, that a Mortgage Loan 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 REMIC Pool, 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
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amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to SECTION 3.20 and, in the case of an ARD Loan, without regard to its
Anticipated Repayment Date.
"STATED PRINCIPAL BALANCE": With respect to any Mortgage Loan
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).
"TAX ADMINISTRATOR": Any tax administrator appointed pursuant
to SECTION 8.13 (or, in the absence of any such appointment, the Trustee).
"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,
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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 REMIC
Pool 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 IRS under any
applicable provisions of federal tax law or any other governmental taxing
authority under applicable state and local tax law.
"TENANT": A tenant under a Credit Lease.
"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, 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": 0.0022% per annum.
"TRUSTEE LIABILITY": As defined in SECTION 8.05(b).
"UBS/DEPOSITOR MORTGAGE LOAN PURCHASE AGREEMENT": That certain
Mortgage Loan Purchase Agreement dated as of May 9, 2000, between the UBS
Mortgage Loan Seller and the Depositor.
"UBS MORTGAGE LOAN": Any Mortgage Loan transferred by the UBS
Mortgage Loan Seller to the Depositor, pursuant to the UBS/Depositor Mortgage
Loan Purchase Agreement.
"UBS MORTGAGE LOAN SELLER": UBS Principal Finance, LLC or its
successor in interest.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
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"UCC FINANCING STATEMENT": A financing statement executed and
filed pursuant to the UCC.
"UNCERTIFICATED ACCRUED INTEREST": The interest accrued from
time to time with respect to any REMIC I Regular Interest or REMIC II Regular
Interest, the amount of which interest shall equal: (a) in the case of any REMIC
I Regular Interest for any Interest Accrual Period, one-twelfth of the product
of (i) the REMIC I Remittance Rate applicable to such REMIC I Regular Interest
for such Interest Accrual Period, multiplied by (ii) the Uncertificated
Principal Balance of such REMIC I Regular Interest outstanding immediately prior
to the related Distribution Date; and (b) in the case of any REMIC II Regular
Interest for any Interest Accrual Period, one-twelfth of the product of (i) the
REMIC II Remittance Rate applicable to such REMIC II Regular Interest for such
Interest Accrual Period, multiplied by (ii) the Uncertificated Principal Balance
of such REMIC II Regular Interest outstanding immediately prior to the related
Distribution Date.
"UNCERTIFICATED DISTRIBUTABLE INTEREST": With respect to any
REMIC I Regular Interest for any Distribution Date, an amount of interest equal
to the amount of Uncertificated Accrued Interest in respect of such REMIC I
Regular Interest for the related Interest Accrual Period, 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 amount of Uncertificated Accrued Interest in respect of such REMIC
I Regular Interest for the related Interest Accrual Period, and the denominator
of which is the aggregate amount of Uncertificated Accrued Interest in respect
of all the REMIC I Regular Interests for the related Interest Accrual Period.
With respect to any REMIC II Regular Interest for any Distribution Date, the
amount of Uncertificated Accrued Interest in respect of such REMIC II Regular
Interest for the related Interest Accrual Period, 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 for such Class or Component, as
the case may be.
"UNCERTIFICATED PRINCIPAL BALANCE": The principal balance 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
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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).
"UNDERWRITERS": Lehman Brothers, Morgan Stanley & Co.
Incorporated and Deutsche Bank Securities Inc. and their respective successors
in interest.
"UNITED STATES PERSON": A citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust (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 Interest Accrual Period, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to six decimal places, of the REMIC I
Remittance Rates applicable to the respective 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.
"WESTFIELD PORTFOLIO CO-LENDER AND SERVICING AGREEMENT": The
Co-Lender and Servicing Agreement, dated as of May 15, 2000, among the Westfield
Portfolio Noteholders, First Union as master servicer, and LaSalle as custodian.
"WESTFIELD PORTFOLIO COMPANION LOAN": As defined in the
Preliminary Statement.
"WESTFIELD PORTFOLIO CUSTODIAL ACCOUNT": A segregated account
or accounts created and maintained by the Master Servicer pursuant to SECTION
3.04A on behalf of the Westfield Portfolio Noteholders, which shall be entitled
"[NAME OF MASTER SERVICER], as Master Servicer, in trust for [NAMES OF WESTFIELD
PORTFOLIO NOTEHOLDERS], as their interests may appear".
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"WESTFIELD PORTFOLIO FISCAL AGENT": ABN AMRO, in its capacity
as fiscal agent under that certain Trust Agreement, dated as of May 15, 2000,
among UBS Asset Securitization Corp. as depositor, LaSalle as trustee, and ABN
AMRO as fiscal agent.
"WESTFIELD PORTFOLIO LOAN PAIR": Collectively, the Westfield
Portfolio Mortgage Loan and the Westfield Portfolio Companion Loan (and any
successor REO Loans).
"WESTFIELD PORTFOLIO MORTGAGED PROPERTY": The Mortgaged
Property securing the Westfield Portfolio Loan Pair.
"WESTFIELD PORTFOLIO MORTGAGE LOAN": The Mortgage Loan
identified on the Mortgage Loan Schedule by control number 3, which Mortgage
Loan is, together with the Westfield Portfolio Companion Loan, secured by a
Mortgage on the retail properties identified on the Mortgage Loan Schedule as
Downtown Plaza and Eastland Shopping Center.
"WESTFIELD PORTFOLIO NOTEHOLDERS": Collectively, the holder of
the Mortgage Note for the Westfield Portfolio Mortgage Loan and the holder of
the Mortgage Note for the Westfield Portfolio Companion Loan.
"WESTFIELD PORTFOLIO REO ACCOUNT": A segregated account or
accounts created and maintained by the Special Servicer pursuant to SECTION 3.16
on behalf of the Westfield Portfolio Noteholders, which shall be entitled "[NAME
OF SPECIAL SERVICER], as Special Servicer, in trust for [NAMES OF WESTFIELD
PORTFOLIO NOTEHOLDERS], as their interests may appear".
"WESTFIELD PORTFOLIO REMITTANCE DATE": The "Remittance Date"
under the Westfield Portfolio Co-Lender and Servicing Agreement.
"WESTFIELD PORTFOLIO RESERVE ACCOUNT": As defined in
SECTION 3.03(d).
"WESTFIELD PORTFOLIO SERVICING ACCOUNT": As defined in
SECTION 3.03(a).
"WESTFIELD PORTFOLIO TRUSTEE": As defined in the Preliminary
Statement.
"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
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contained in the applicable Mortgage Note, PROVIDED, HOWEVER, in the event the
particular Mortgage Note shall not specify the U.S. Treasuries which shall be
used in determining the discount rate or the reinvestment yield to be applied in
such calculation, the Master Servicer shall be required to use those U.S.
Treasuries which shall generate the lowest 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-UBS Commercial Mortgage Trust 2000-C3". LaSalle 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, (ii) the UBS/Depositor Mortgage Loan
Purchase Agreement, and (iii) 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 Cherry Creek Mall Mortgage Loan, the Annapolis Mall
Mortgage Loan, the Westfield Portfolio Mortgage Loan and the Sangertown Square
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, in the case of each UBS Mortgage
Loan, direct the UBS Mortgage Loan Seller (pursuant to the UBS/Depositor
Mortgage Loan Purchase Agreement) to deliver to and deposit with the Trustee or
a Custodian appointed thereby, and shall, in the case of each LBHI Mortgage
Loan, itself deliver to and deposit with the Trustee or a Custodian appointed
thereby, on or before the Closing Date, the Mortgage File for such Mortgage
Loan, with copies of the related Mortgage Note, Mortgage(s) and reserve and cash
management agreements for such Mortgage Loan 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 all
necessary recording and filing information) has been delivered to the Trustee or
its agent), 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". The
UBS/Depositor Mortgage Loan Purchase Agreement provides that the UBS Mortgage
Loan Seller shall bear the cost of such recording and
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filing with respect to the UBS Mortgage Loans, and the Depositor shall bear the
cost of such recording and filing with respect to the LBHI Mortgage Loans. Each
such assignment shall reflect that it should be returned by the public recording
office to the Trustee or its agent following recording, and each such UCC-2 and
UCC-3 assignment shall reflect that the file copy thereof should be returned to
the Trustee or its agent following filing; PROVIDED that, in those instances
where the public recording office retains the original assignment of Mortgage or
assignment of Assignment of Leases, the Trustee shall obtain therefrom a
certified copy of the recorded original. 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
relating to a UBS Mortgage Loan is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, then the Trustee shall direct the
UBS Mortgage Loan Seller (pursuant to the UBS/Depositor Mortgage Loan Purchase
Agreement) promptly to prepare or cause the preparation of a substitute therefor
or to cure such defect, as the case may be, and to deliver to the Trustee the
substitute or corrected document. If any such document or instrument relating to
an LBHI Mortgage Loan is lost or returned unrecorded or unfiled, as the case may
be, because of a defect therein, then the Depositor shall promptly prepare or
cause the preparation of a substitute therefor or cure such defect, as the case
may be, and shall deliver to the Trustee the substitute or corrected document.
The Trustee shall upon receipt, whether from the UBS Mortgage Loan Seller or the
Depositor, cause the same to be duly recorded or filed, as appropriate.
(d) In connection with the Depositor's assignment pursuant to
SECTION 2.01(a) above, the Depositor shall, in the case of each UBS Mortgage
Loan, direct the UBS Mortgage Loan Seller (pursuant to the UBS/Depositor
Mortgage Loan Purchase Agreement) to deliver to and deposit with the Master
Servicer, and shall, in the case of each LBHI Mortgage Loan, itself deliver to
and deposit with the Master Servicer, on or before the Closing Date, all
documents and records in the possession of the UBS Mortgage Loan Seller or the
Depositor, as the case may be, that relate to the Mortgage Loan and that are not
required to be a part of the related Mortgage File in accordance with the
definition thereof, together with all unapplied Escrow Payments and Reserve
Funds in the possession of the UBS Mortgage Loan Seller or the Depositor, as the
case may be, that relate to such Mortgage Loan. The Master Servicer shall hold
all such documents, records and funds on behalf of the Trustee in trust for the
benefit of the Certificateholders (and, insofar as they also relate to any
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 the Cherry Creek Mall Mortgage Loan,
the Annapolis Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan or the
Sangertown
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Square 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
and the Underwriters 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 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) 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 Companion Loan, and the Trustee shall, subject to SECTIONS
2.01, 2.02(C) and 2.02(D), certify in writing (substantially in the form of
EXHIBIT C hereto) to each of the other parties hereto, each Mortgage Loan Seller
and the Underwriters and, in the case of each Companion Loan, to the related
Companion Loan Noteholder 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 or Companion
Loan, as the case may be, 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, any
Companion Loan Noteholder and any Underwriter on request.
(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 and/or the Companion 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
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any responsibility for determining whether the text of any assignment or
endorsement is in proper or recordable form, whether the requisite recording of
any document is in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction.
(d) 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) If, after the Closing Date, the Depositor comes into
possession of any documents or records that constitute part of the Mortgage File
or Servicing File for any Mortgage Loan, the Depositor shall promptly deliver
such document to the Trustee (if it constitutes part of the Mortgage File) or
the Master Servicer (if it constitutes part of the Servicing File), as
applicable.
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
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 UBS
Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage
Loan Purchase Agreement with respect to any UBS Mortgage Loan (a "BREACH"), or
discovers or receives notice of a breach of any representation or warranty of
the Depositor set forth in SECTION 2.04(b) with respect to any LBHI Mortgage
Loan (also, a "BREACH"), and such Document Defect or Breach, as the case may be,
materially and adversely affects the interests of the Certificateholders in, or
the value of, any Mortgage Loan, such party shall give prompt written notice
thereof to each of the Rating Agencies, the related Mortgage Loan Seller and the
other parties hereto. Promptly upon becoming aware of any such Document Defect
or Breach with respect to a UBS Mortgage Loan that materially and adversely
affects the interests of the Certificateholders in, or the value of, such UBS
Mortgage Loan (including through a written notice given by any party hereto, as
provided above), the Trustee shall require the UBS Mortgage Loan Seller, within
the time period and subject to the conditions provided for in the UBS/Depositor
Mortgage Loan Purchase Agreement, to cure such Document Defect or Breach, as the
case may be, or 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 any UBS Mortgage
Loan that is part of a Loan Pair, to the REO Account for such Loan Pair).
Promptly upon becoming aware of any such Document Defect or Breach with respect
to an LBHI Mortgage Loan that materially and adversely affects the interests of
the Certificateholders in, or the value of, such LBHI Mortgage Loan (including
through a written notice given 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 an LBHI
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
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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
LBHI 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 an LBHI Mortgage Loan that is part of a Loan Pair,
to the REO Account for such Loan Pair); PROVIDED, HOWEVER, that if (i) such
Document Defect or Breach is capable of being cured but not within such 90-day
period, (ii) such Document Defect or Breach is not related to any LBHI 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.
(b) In connection with any repurchase of a Mortgage Loan
pursuant to this SECTION 2.03, and subject to SECTION 3.26, the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each tender to the
repurchasing entity, upon delivery to each of them of a receipt executed by the
repurchasing entity, 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 repurchasing entity 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, 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) The UBS/Depositor Mortgage Loan Purchase Agreement
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 UBS Mortgage Loan. This SECTION 2.03 provides the sole
remedies available to the Certificateholders, or the Trustee on behalf of the
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Certificateholders, respecting any Document Defect or Breach with respect to any
LBHI Mortgage Loan.
SECTION 2.04. Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents, warrants and covenants to
the Trustee, for its own benefit and the benefit of the Certificateholders, and
to the Fiscal Agent, the Master Servicer and the Special Servicer, as of the
Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's
certificate of incorporation or by-laws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets.
(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,
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is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans
to the Trust Fund pursuant to this Agreement, and assuming that the UBS
Mortgage Loan Seller transferred to the Depositor good and marketable
title to each UBS Mortgage Loan, free and clear of all liens, claims,
encumbrances and other interests, (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 LBHI 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 LBHI 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 LBHI 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 such Mortgage
Loan 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 the non-recourse provisions therein and any
state anti-deficiency legislation), enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles
of equity (regardless of whether such
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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; and the Mortgage Loan is
non-recourse to the Mortgagor or any other Person.
(vi) As of the date of its origination or, if such Mortgage
Loan is the Sangertown Square 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 of the
Depositor's knowledge, 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 actual 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 or a hospitality 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.
(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
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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 related 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, governmental assessments, ground rents, water
charges or sewer rents that prior to the Cut-off Date became due and
owing in respect of, and materially 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 of the Depositor's knowledge, no prior
mortgagee has done, by act or omission, anything that would materially
impair the coverage of any such title insurance policy; such policy or
commitment contains no exclusion for (or alternatively it 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 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 and, to the best of
the Depositor's knowledge, as of the Cut-off Date, all insurance
required under each related Mortgage was in full force and effect with
respect to each related Mortgaged Property; such insurance covered
(except where a Tenant
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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 included (A) fire and extended
perils insurance, 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 at
least equal to the initial principal balance of such Mortgage Loan, or
the portion thereof allocable to such Mortgaged Property, together
with an "agreed value endorsement"), (B) business interruption or
rental loss insurance for a period of not less than 12 months, (C)
comprehensive general liability insurance in an amount not less than
$1 million per occurrence, (D) workers' compensation insurance (if the
related Mortgagor has employees and if required by applicable law),
and (E) if (1) such Mortgage Loan is secured by a Mortgaged Property
located in the State of California or "seismic zones" 3 or 4 and (2)
a seismic assessment revealed a maximum probable or bounded loss in
excess of 20% of the amount of the estimated replacement cost of the
improvements on such Mortgaged Property, earthquake insurance; the
related insurance policies provide that they may not be terminated
or reduced without at least 10 days prior notice to the mortgagee
and (other than those limited to liability protection) name the
mortgagee and its successors as loss payee; 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 Cut-off Date; all such insurance
policies are required to be maintained with insurance companies
having "financial strength" or "claims paying ability" ratings of at
least "A:VIII" from A.M. Best Company or at least "A-" (or equivalent)
from a nationally recognized statistical rating agency; 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 actual knowledge of the Depositor, (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 such
Mortgage Loan, no person or party other than the mortgagee may declare
an event of default or accelerate the related indebtedness under such
Mortgage Loan.
(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 the past 12 months), has not been, 30
days or more past due in respect of any Scheduled Payment.
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(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 if
such Mortgage Loan is an ARD Mortgage Loan, in which case the accrual
rate for interest will increase after its Anticipated Repayment Date,
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 part of a Loan Pair, 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 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 such Mortgage Loan, if any,
contain customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the practical
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realization against the related Mortgaged Property or Properties of the
principal benefits of the security intended to be provided thereby,
including realization by judicial or, if applicable, non-judicial
foreclosure, subject to bankruptcy, insolvency, reorganization,
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 related Mortgaged Property is encumbered in connection
with subordinate financing; however, if the related Mortgagor is listed
on SCHEDULE III-B hereto, then certain equity holders are known to the
Depositor 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 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).
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(xxviii) Unless such Mortgage Loan is part of a Loan Pair,
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 document or instrument.
(xxx) Unless such Mortgage Loan is a Credit Lease Loan, 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(s) or
other loan document securing such Mortgage Loan do not provide for the
release of any material portion of the related Mortgaged Property from
the lien of such Mortgage without (A) payment in full of such Mortgage
Loan, (B) delivery of Defeasance Collateral in the form of U.S.
government securities or (C) delivery of substitute real property
collateral.
(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 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) Unless such Mortgage Loan is a Credit Lease Loan, 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 $25 million, the related Mortgagor is obligated by its
organizational documents and/or the related Mortgage Loan documents to
be a Single Purpose Entity for so long as such Mortgage Loan is
outstanding; and
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if such Mortgage Loan has a Cut-off Date Balance less than $25
million, the related Mortgagor is obligated by 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 related Mortgagor
other than pursuant to the related Mortgage Note; and no funds have
been received from any person other than such Mortgagor for or on
account of payments due on the related 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
any related Mortgaged Property that, if determined adversely to such
Mortgagor or Mortgaged Property, would materially and adversely affect
the value of such Mortgaged Property or the ability of such 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 each jurisdiction in which a 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 part of a Loan Pair, the
related Mortgage Note is not, to the Depositor's knowledge, 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
cross-collateralized only with other Mortgage Loans in the Trust Fund;
and the security interest/lien on each item of collateral for such
Mortgage Loan has been assigned to the Trustee.
(xli) None of the improvements on any related Mortgaged
Property are located in a flood hazard area as defined by the Federal
Insurance Administration or, if they are, they are covered by flood
hazard insurance.
(xlii) Unless such Mortgage Loan is a Credit Lease Loan, one
or more engineering assessments were performed by an Independent
engineering consulting firm on behalf of the Depositor or one of its
Affiliates with respect to each related Mortgaged Property during the
12-month period preceding the Cut-off Date (or, if such Mortgage Loan
is one of the Mortgage Loans identified on SCHEDULE III-C, more than 12
months), and the Depositor, having made no
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independent inquiry other than to review the report(s) prepared in
connection with the assessment(s) referenced herein, does not have any
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 or a letter of credit has been
provided, (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 related 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-D, such Mortgage
Loan is secured in whole or in material part by a fee simple interest.
(xlvii) If such Mortgage Loan is secured in whole or in
material part by the interest of the related Mortgagor as a lessee
under a Ground Lease but not by the related fee interest, then, except
as indicated on SCHEDULE III-E:
(A) such Ground Lease or a memorandum thereof has been or
will be duly recorded and such Ground Lease permits the
interest of the lessee thereunder to be encumbered by
the related Mortgage or, if consent of the lessor
thereunder is required, it has been obtained prior to
the Closing Date;
(B) upon the foreclosure of 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 (or, if any such consent is
required, it has been obtained prior to the Closing
Date);
(C) such Ground Lease may not be amended or modified
without the prior written consent of the mortgagee
under such Mortgage Loan and any such
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action without such consent is not binding on such
mortgagee, its successors or assigns;
(D) unless otherwise set forth in such Ground Lease, such
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; to the actual knowledge of the Depositor,
except for payments due but not yet 30 days or more
delinquent, (1) there is no material default under such
Ground Lease, 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 under such Mortgage Loan from
the lessor, requires the lessor thereunder to give
notice of any default by the lessee to such mortgagee;
and such Ground Lease, or an estoppel or consent letter
received by the mortgagee under such Mortgage Loan from
the lessor, further provides either (1) that no notice
of termination given under such Ground Lease is
effective against such 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 such Ground Lease the
lessor will enter into a new lease with such mortgagee;
(G) the ground lessee's interest in such Ground Lease is
not subject to any liens or encumbrances superior to,
or of equal priority with, the related Mortgage, other
than 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 current use of such Mortgaged
Property, or (3) the value of the Mortgaged Property;
(H) the mortgagee under such Mortgage Loan 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;
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(J) under the terms of such Ground Lease, any estoppel or
consent letter received by the mortgagee under such
Mortgage Loan 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 such 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
use which would be viewed as commercially unreasonable
by a prudent commercial mortgage lender;
(L) upon the request of the mortgagee under such Mortgage
Loan, the ground lessor under such Ground Lease is
required to enter into a new lease upon termination of
the Ground Lease as a result of the rejection thereof
by the related Mortgagor in bankruptcy; and
(M) the terms of the related Ground Lease have not been
waived, modified, altered, satisfied, impaired,
canceled, subordinated or rescinded in any manner which
materially interferes with the security intended to be
provided by such Mortgage.
(xlviii) If such Mortgage Loan is secured in whole or in part
by the interest of the related Mortgagor under a Ground Lease and by
the related fee interest, then (A) such fee interest is subject, and
subordinated of record, to the related Mortgage, (B) the related
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,
and (C) upon occurrence of a default under the terms of the related
Mortgage by the related Mortgagor, the mortgagee under such Mortgage
Loan has the right to foreclose upon or otherwise exercise its rights
with respect to 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; and each related Mortgaged Property,
except if such Mortgaged Property is identified on SCHEDULE III-F
hereto (in which case it is served by a private well), is served by a
public water system, a public sewer (or, alternatively, a septic)
system, and other customary public utility facilities.
(l) (1) If such Mortgage Loan is a Defeasance Loan, the
related Mortgage Loan documents require the related Mortgagor to pay all costs
associated with the defeasance thereof, 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 related
Mortgage Note when due (assuming for each ARD Mortgage Loan that it matures on
its Anticipated Repayment Date) or, in the case of a partial defeasance that
effects the release of a material portion of the related Mortgaged Property,
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to make all scheduled payments under the related Mortgage Note on that part of
such Mortgage Loan equal to 125% of the allocated loan amount of the portion of
the Mortgaged Property being released (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) The Due Date for each Mortgage Loan is scheduled to be
the first day, the first business day or the sixth day of the month.
(liv) 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 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), 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.
(lv) To the Depositor's knowledge, the related Mortgagor is a
Person formed or incorporated in a jurisdiction within the United States.
(lvi) If such Mortgage Loan is a Credit Lease Loan, then:
(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 related 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 related Mortgagor does not have any material
nonmonetary obligations under the related Credit Lease,
except for the delivery of possession of the leased
property;
(D) except with respect to the Mortgage Loan identified on
the Mortgage Loan Schedule as being secured by a lien
on Stop & Shop - Meriden Connecticut, the related
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 the related 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 such 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) 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 related 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) the related Tenant's violation of
the related Credit Lease, or (III) any act or omission
of the related Tenant;
(H) the related Tenant has agreed to indemnify the related
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 a Rated Party, such guaranty is legal,
valid and binding against such Rated
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Party, and except if such Credit Lease Loan is one the
Credit Lease Loans identified on SCHEDULE III-G(I) (in
respect of which the related Credit Tenant executed a
subordination and non-disturbance agreement that was
not acknowledged by the related Rated Party), such
Rated Party has also executed or acknowledged in
writing, with respect to the related 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 may not be amended or
released without the consent of the mortgagee under
such Credit Lease Loan;
(J) if such Credit Lease Loan shall not be fully amortized
by the expiration of the related Credit Lease, such
Credit Lease Loan has the benefit of a Residual Value
Insurance Policy or a Lease Enhancement Policy;
(K) if such Credit Lease Loan has the benefit of a Residual
Value Insurance Policy or a Lease Enhancement Policy,
such policy has been obtained and is in effect, and
unless the related Credit Lease is a bond-type lease,
the required premiums have been paid; each such related
Lease Enhancement Policy and Residual Value Insurance
Policy is non-cancelable (subject to customary
exceptions); such Credit Lease Loan and the insurance
company providing such policy are identified in
SCHEDULE III-G(K) hereto; such policy designates the
mortgagee and its successors and assigns as loss payee,
with all claims payable thereto; payment under such
policy is required to be made within 15 days of a valid
claim; and the insured amount payable under such policy
will be no less than the outstanding principal balance
of such Credit Lease Loan at the time a claim is made,
plus accrued interest;
(L) any information set forth on SCHEDULE III-G(L) hereto
with respect to any guarantor of the Tenant's
obligations under the related Credit Lease, is accurate
in all material respects;
(M) to the best of the Depositor's knowledge, no default by
the related Mortgagor or Tenant has occurred under the
related Credit Lease, and, to the Depositor's actual
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;
(N) 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;
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(O) no Person owns any interest in any payments due under
the related Credit Lease other than the related
Mortgagor and the Depositor (which interest is being
conveyed hereunder);
(P) the related Tenant has agreed to notify the mortgagee
under such Credit Lease Loan of any default under the
related Credit Lease and to provide such mortgagee with
additional time and opportunity to cure;
(Q) such Credit Lease Loan provides that the related Credit
Lease cannot be modified without the consent of the
mortgagee thereunder;
(R) to the best of the Depositor's knowledge, 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;
(S) the related Tenant is required under such Credit Lease
Loan to make all rental payments directly to the
mortgagee, its successors and assigns;
(T) 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;
(U) the related Credit Lease has an original term ending on
or after the final maturity of such Credit Lease Loan;
(V) except as set forth on SCHEDULE III-E(V) hereto, the
related Mortgaged Property is not subject to any lease
other than the related Credit Lease, and the related
Credit Tenant occupies the entire space;
(W) a permanent certificate of occupancy has been issued in
respect of the related Mortgaged Property and the
related Credit Tenant has commenced lease payments; and
(X) the related Credit Tenant has delivered an estoppel
verifying the rents and terms of the related Credit
Lease, acknowledging that no rent has been paid in
advance and agreeing to attorn to the mortgagee.
Except as expressly provided in SECTION 2.04(a), the Depositor
does not make any representations or warranties regarding the UBS Mortgage
Loans.
(c) The representations, warranties and covenants of the
Depositor set forth in SECTION 2.04(a) and SECTION 2.04(b) 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
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remains in existence. Upon discovery by any party hereto of any breach of any of
such representations, warranties and covenants, the party discovering such
breach shall give prompt written notice thereof to the other parties.
SECTION 2.05. Execution, Authentication and Delivery of Class
R-I Certificates; Creation of REMIC I Regular
Interests.
The Trustee hereby acknowledges the assignment to it of the
assets included in REMIC I. 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 authorized 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.
SECTION 2.07. Execution, Authentication and Delivery of Class
R-II Certificates; Creation of REMIC II Regular
Interests.
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 authorized 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.
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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. The Class P
Certificates shall also evidence the entire beneficial ownership of the Grantor
Trust.
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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), SECTION 6.11 (taking account
of SECTION 6.11(b)) and SECTION 6.11A (taking account of SECTION 6.11A(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, SECTION 6.11 (taking account of SECTION 6.11(b))
and SECTION 6.11A (taking account of SECTION 6.11A(b)), any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments. Subject to SECTION 3.10, the
Trustee shall, at the written request of the Master Servicer or the Special
Servicer, promptly execute any limited powers of attorney and other documents
furnished by the Master Servicer or the Special Servicer that are necessary or
appropriate to enable them to carry out their servicing and administrative
duties hereunder; PROVIDED, HOWEVER, that the Trustee shall not be held liable
for any
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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 again governed
by the terms of the related Co-Lender and Servicing Agreement, as contemplated
by Section 3.25(c) of such Co-Lender and Servicing Agreement, the Master
Servicer and, if such Loan Pair is then being specially serviced, the Special
Servicer each agree to act in such capacity under 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 and the Companion Loan Noteholders under this
Agreement is intended by the parties to be that of an independent contractor and
not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of 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; PROVIDED, HOWEVER, that neither the Master Servicer
nor the Special Servicer shall, with respect to any ARD Loan after its
Anticipated Repayment Date, take any enforcement action with respect to the
payment of Additional Interest (other than the making of requests for its
collection), unless (i) the taking of an enforcement action with respect to the
payment of other amounts due under such ARD Loan is, in the good faith and
reasonable judgment of the Special Servicer, necessary, appropriate and
consistent with the Servicing Standard or (ii) all other amounts due under such
ARD Loan have been paid, the payment of such Additional Interest has not been
forgiven in accordance with SECTION 3.20 and, in the good faith and reasonable
judgment of the Special
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Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated interest accrued on Advances. 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 or to the extent that such payments and other
collections may be applied at the discretion of the lender, 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 Cherry Creek Mall Loan Pair, the
Annapolis Mall Loan Pair, the Westfield Portfolio Loan Pair and the Sangertown
Square 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 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 or to
the extent that such payments and other collections may be applied at the
discretion of the lender, 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
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owing under such Mortgage Loan; EIGHTH, as a recovery of any assumption fees and
modification fees then due and owing under such Mortgage Loan; NINTH, as a
recovery of any other amounts then due and owing under such Mortgage Loan (other
than remaining unpaid principal and, in the case of an ARD 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 Cherry Creek Mall Loan
Pair, the Annapolis Mall Loan Pair, the Westfield Portfolio Loan Pair or the
Sangertown Square 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, if any, 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 Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage Loan,
the Westfield Portfolio Mortgage Loan and the Sangertown Square Mortgage Loan),
establish and maintain one or more accounts (the "POOL SERVICING ACCOUNTS"), in
which all related Escrow Payments shall be deposited and retained. The Master
Servicer shall, at all times, establish and maintain, with respect to each of
the Cherry Creek Mall Loan Pair, the Annapolis Mall Loan Pair, the Westfield
Portfolio Loan Pair and the Sangertown Square Loan Pair, one or more accounts
(the "CHERRY CREEK MALL SERVICING ACCOUNT", the "ANNAPOLIS MALL SERVICING
ACCOUNT", the "WESTFIELD PORTFOLIO SERVICING ACCOUNT" and the "SANGERTOWN SQUARE
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 the related Mortgage Loan
or Companion 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 3.11(h), 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. 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 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.
(d) The Master Servicer shall, as to all Mortgage Loans (other
than the Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage Loan, the
Westfield Portfolio Mortgage Loan and the Sangertown Square 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 Cherry Creek Mall Loan Pair, the Annapolis Mall Loan
Pair, the Westfield Portfolio Loan Pair and the Sangertown Square Loan Pair, one
or more accounts (the "CHERRY CREEK MALL RESERVE ACCOUNTS", the "ANNAPOLIS MALL
RESERVE ACCOUNTS", the "WESTFIELD PORTFOLIO RESERVE ACCOUNTS" and the
"SANGERTOWN SQUARE 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) for the specific purposes for which the particular
Reserve Funds were delivered, in accordance with the Servicing Standard and the
terms of the
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related Mortgage Note, Mortgage and any other agreement with the related
Mortgagor governing such Reserve Funds, and (ii) to pay the Master Servicer
interest and investment income earned on amounts in the Reserve Accounts as
described below. To the extent permitted in the applicable loan documents, 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 any 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 Principal Prepayments, and regardless of whether those
payments are made by the related Mortgagor or any related guarantor,
out of any related Reserve Funds maintained for such purpose, out of
collections on any related Defeasance Collateral or from any other
source;
(ii) all payments on account of interest on the Mortgage
Loans, including Default Interest and Additional Interest, and
regardless of whether those payments are made by the related Mortgagor
or any related guarantor, out of any related Reserve Funds maintained
for such purpose, out of collections on any related Defeasance
Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and
late payment 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;
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(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to SECTION 3.07(b) in
connection with losses resulting from a deductible clause in a blanket
hazard policy;
(vii) any amounts required to be transferred from an REO
Account pursuant to SECTION 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which a
Servicing Advance has been made;
PROVIDED that any amounts described in CLAUSES (i) - (iv) and (vi) - (viii)
above that relate to any of the Cherry Creek Mall Mortgage Loan, the Annapolis
Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan or the Sangertown
Square Mortgage Loan or any related REO Property (other than Liquidation
Proceeds derived from the sale of the Cherry Creek Mall Mortgage Loan, the
Annapolis Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan or the
Sangertown Square Mortgage Loan, as the case may be, 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 related Loan Pair-specific Custodial Account, and, in any 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
Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage Loan, the Westfield
Portfolio Mortgage Loan and the Sangertown Square 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
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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 (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);
(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
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(iii) any amounts required to be deposited by the Master
Servicer pursuant to SECTION 3.19(a) in connection with Prepayment
Interest Shortfalls.
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.
In the event that the Master Servicer fails, on any P&I
Advance Date, to remit to the Trustee any amount(s) required to be so remitted
to the Trustee hereunder by such date, the Master Servicer shall pay the
Trustee, for the account of the Trustee, interest, calculated at the Prime Rate,
on such amount(s) not timely remitted, from and including that P&I Advance Date
to but not including the related Distribution Date.
On the P&I Advance Date in March of each year (commencing in
March 2001), 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 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. Cherry Creek Mall, Annapolis Mall, Westfield
Portfolio and Sangertown Square Custodial
Accounts.
(a) The Master Servicer shall establish and maintain, with
respect to each Loan Pair, one or more separate accounts (the "CHERRY CREEK MALL
CUSTODIAL ACCOUNT", in the case of the Cherry Creek Mall Loan Pair, the
"ANNAPOLIS MALL CUSTODIAL ACCOUNT", in the case of the Annapolis Mall Loan Pair,
the "WESTFIELD PORTFOLIO CUSTODIAL ACCOUNT", in the case of the Westfield
Portfolio Loan Pair, and the "SANGERTOWN SQUARE CUSTODIAL ACCOUNT", in the case
of the Sangertown Square 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
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deposit or cause to be deposited in the Custodial Account for each Loan Pair,
within one Business Day of receipt (in the case of payments or other collections
on such 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 such 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 subject Loan
Pair, including Principal Prepayments, and regardless of whether those
payments are made by the related Mortgagor or any related guarantor,
out of any related Reserve Funds maintained for such purpose, out of
collections on any related Defeasance Collateral or from any other
source;
(ii) all payments on account of interest on the subject Loan
Pair, including Default Interest and Additional Interest, and
regardless of whether those payments are made by the related Mortgagor
or any related guarantor, out of any related Reserve Funds maintained
for such purpose, out of collections on any related Defeasance
Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges
and/or late payment charges received in respect of the subject Loan
Pair;
(iv) all Insurance Proceeds and Liquidation Proceeds received
in respect of the subject Loan Pair (other than Liquidation Proceeds
derived from the sale of the Mortgage Loan in the subject 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 with respect to the subject Loan Pair 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 with respect to the subject Loan
Pair 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 with respect to the subject Loan Pair in accordance with
SECTION 4.03A.
The foregoing requirements for deposit in the Custodial
Account relating to any Loan Pair shall be exclusive. Notwithstanding the
foregoing, actual payments from the related Mortgagor in
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respect of any Loan Pair in the nature of Escrow Payments, Reserve Funds,
assumption fees, assumption application fees, funds representing such
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
related Custodial Account. If the Master Servicer shall deposit into the
Custodial Account for any Loan Pair 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 any 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 Cherry Creek Mall Custodial Account, the
Annapolis Mall Custodial Account, Westfield Portfolio Custodial Account and the
Sangertown Square 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 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 any Loan Pair shall initially be deposited by the
Special Servicer into the related REO Account and thereafter remitted to the
Master Servicer for deposit into the related Custodial Account, all in
accordance with SECTION 3.16(c).
(b) If and when the related Mortgagor elects to defease any
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 Cherry Creek Mall Custodial Account, the Annapolis Mall Custodial
Account, the Westfield Portfolio Custodial Account and the Sangertown Square
Custodial Account when first established and of the new location of each such
Custodial 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 or an REO Loan
that is part of a Loan Pair), 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);
(vi) to reimburse the Fiscal Agent, the Trustee, itself and
the Special Servicer, in that order, for any unreimbursed Servicing
Advances made thereby with respect to any Mortgage
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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 and
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 and the
Special Servicer, in that order, any interest accrued and payable in
accordance with SECTION 3.11(g) 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 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;
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(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
3.09(a), 3.11(h) 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 3.11(i), 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.
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
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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 their
respective directors, officers, employees and agents, as the case may
be, out of general collections on the Mortgage Loans and any REO
Properties, any amounts payable or reimbursable to any such Person
pursuant to SECTION 7.01(b) 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 Tax Administrator (a) as provided in CLAUSE (V)
of the definition of "Disqualified Organization", (b) as contemplated
by SECTIONS 9.02(a)(i), 10.01(i) and 10.02(e), or (c) as contemplated
by SECTION 11.01(a) or 11.01(c) in connection with any amendment to
this Agreement requested by the Trustee which amendment is in
furtherance of the rights and interests of Certificateholders;
(v) to pay, out of general collections on the Mortgage Loans
and any REO Properties, any and all federal, state and local taxes
imposed on any of the REMICs created hereunder or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, to the extent none of the Depositor, the Trustee, the Tax
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 Tax 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
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(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 (commencing in March
2001), 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 Cherry Creek
Mall Custodial Account, Annapolis Mall
Custodial Account, Westfield Portfolio
Custodial Account and Sangertown Square
Custodial Account.
The Master Servicer may, from time to time, make withdrawals
from the Cherry Creek Mall Custodial Account, the Annapolis Mall Custodial
Account, the Westfield Portfolio Custodial Account or the Sangertown Square
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, FIRST, the Fiscal Agent, SECOND, the
Trustee, THIRD, the Cherry Creek Mall Fiscal Agent, the Annapolis Mall
Fiscal Agent, the Westfield Portfolio Fiscal Agent or the Sangertown
Square Fiscal Agent, as applicable, FOURTH, the Cherry Creek Mall
Trustee, the Annapolis Mall Trustee, the Westfield Portfolio Trustee or
the Sangertown Square Trustee, as applicable, and LAST, itself, in that
order, for unreimbursed P&I Advances made by such party (with its own
funds) with respect to the related Loan Pair, any such party's rights
to reimbursement pursuant to this CLAUSE (ii) with respect to any 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, FIRST, the Fiscal Agent, SECOND, the
Trustee, THIRD, the Cherry Creek Mall Fiscal Agent, the Annapolis Mall
Fiscal Agent, the Westfield Portfolio Fiscal Agent or the Sangertown
Square Fiscal Agent, as applicable, FOURTH, the Cherry Creek Mall
Trustee, the
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Annapolis Mall Trustee, the Westfield Portfolio Trustee or the
Sangertown Square Trustee, as applicable, and LAST, itself, in that
order, for any unreimbursed P&I Advances made by such party (with its
own funds) with respect to the related Loan Pair that such party has
determined are Nonrecoverable Advances;
(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 and 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 FIRST, the Fiscal Agent, SECOND, the Trustee,
THIRD, the Cherry Creek Mall Fiscal Agent, the Annapolis Mall Fiscal
Agent, the Westfield Portfolio Fiscal Agent or the Sangertown Square
Fiscal Agent, as applicable, FOURTH, the Cherry Creek Mall Trustee, the
Annapolis Mall Trustee, the Westfield Portfolio Trustee or the
Sangertown Square Trustee, as applicable, FIFTH, itself and, LAST, the
Special Servicer, in that order, any interest accrued on any Advance
made thereby with respect to the related Loan Pair or REO Property, any
such party's respective right 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 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 3.11(h) or 4.03A(c) and (C) the fees of any Independent
Contractor retained with respect to any related REO Property pursuant
to SECTION 3.17A(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),
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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 Cherry Creek Mall
Custodial Account, the Annapolis Mall Custodial Account, the Westfield Portfolio
Custodial Account or the Sangertown Square 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 Cherry Creek Mall Custodial Account, the
Annapolis Mall Custodial Account, the Westfield Portfolio Custodial Account or
the Sangertown Square 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 Cherry Creek Mall
Custodial Account, the Annapolis Mall Custodial Account, the Westfield Portfolio
Custodial Account or the Sangertown Square Custodial Account on a loan-by-loan
basis.
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 in one or more Permitted Investments bearing interest or sold at a
discount,
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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, any 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 such funds are 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, the Servicing Accounts, the Reserve Accounts and the
Defeasance Deposit Account), 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,
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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), 3.03(d), 3.04(a), 3.05(a) or
3.05A or withdrawal by the Trustee at its direction in accordance with SECTION
3.05(b) or 3.05(c), 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 (i) 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), (ii)
the Custodial Accounts, (iii) the Collection Account and (iv) 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.
(d) Notwithstanding the investment of funds held in any
Investment Account, for purposes of the calculations hereunder, including 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 (if then rated
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by Moody's, and if not rated by Moody's, then at least "A:VIII" or better from
A.M. Best Company) and "A" from Fitch (if then rated by Fitch, and if not then
rated by Fitch, then at least "A:VIII" from A.M. Best Company) (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 and provided the related loan
documents and applicable law give the mortgagee the right to request such
insurance coverage, be secured for one or more Mortgaged Properties by the
related Mortgagor. The related Companion Loan Noteholder may request that
earthquake insurance, to the extent such insurance may reasonably be obtained,
be secured for the Cherry Creek Mall Mortgaged Property, the Annapolis Mall
Mortgaged Property, the Westfield Portfolio Mortgaged Property or the Sangertown
Square 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 a
"claims paying ability" or "financial strength" rating, as applicable, of at
least "A2" from Moody's and "A" from Fitch (if then rated by Fitch, and if not
then rated by Fitch, then an equivalent rating by at least one 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 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 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 in
accordance with SECTION 3.04(a) or 3.04A(a), as the case may be, in the case of
amounts received in respect of a Mortgage Loan or Companion Loan, or in the
applicable REO Account in accordance with SECTION 3.16(b), 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 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 (if then rated by
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Moody's, and if not then rated by Moody's, then at least "A:VIII" from A.M. Best
Company) and "A" from Fitch (if then rated by Fitch, and if not then rated by
Fitch, then at least "A:VIII" from A.M. Best Company) (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 secures 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) Subject to the third paragraph of this SECTION 3.07(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 and/or
REO Properties are part of the Trust Fund) keep in force with Qualified Insurers
having (or whose obligations are guaranteed or backed, in writing, by entities
having) a "claims paying ability" or "financial strength" rating, as applicable,
of at least "Baa3" from Moody's (if then rated by Moody's, and if not rated by
Moody's, then at least "A:VIII" from A.M. Best Company) and "A" from Fitch (if
then rated by Fitch, and if not then rated by Fitch, then at least "A:VIII" from
A.M. Best Company (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.
Subject to the third paragraph of this SECTION 3.07(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 and/or REO
Properties are part of the Trust Fund) also keep in force with Qualified
Insurers having (or whose obligations are guaranteed or backed, in writing, by
entities having) a "claims paying ability" or "financial strength" rating, as
applicable, of at least "Baa3" from Moody's (if then rated by Moody's, and if
not rated by Moody's, then at least "A:VIII" from A.M. Best Company) and "A"
from Fitch (if then rated by Fitch, and if not then rated by Fitch, then at
least "A:VIII" from A.M. Best Company (or, in the case of either Rating Agency,
such lower rating as will not result in an Adverse Rating Event, as
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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.
Notwithstanding the foregoing, 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 (if
then rated by Moody's, and if not then rated by Moody's, then an equivalent
rating by at least one additional nationally recognized statistical rating
agency besides Fitch) and "A" from Fitch (if then rated by Fitch, and if not
then rated by Fitch, 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 expressly permit, with the
lender's consent, subject to the conditions described in the Mortgage Loan
documents, 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 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. The Special Servicer shall have the right
hereunder, within 15 days of receipt of such recommendation and supporting
materials and any other materials reasonably requested by the Special Servicer,
to reasonably withhold or, subject to SECTION 3.08(d), SECTION 6.11 and SECTION
6.11A, 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 15-day period, the Special Servicer's consent shall be
deemed granted. If the Special Servicer consents or is deemed to have consented
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;
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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 (but in the case of Fitch, only if the subject Mortgage Loan is then one
of the ten largest (measured by unpaid principal balance) Mortgage Loans in the
Mortgage Pool or is then a part of one of the ten largest groups (measured by
aggregate unpaid principal balance) of Mortgage Loans with related Mortgagors)
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 and 100% of each assumption
application fee and each other applicable 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 remaining portion, if any, of
each such 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, unless all costs
in connection therewith, including any arising from seeking Rating Agency
confirmation, are paid by the related 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 (but
in the case of Fitch, only if the subject Mortgage Loan is then one of the ten
largest (measured by unpaid principal balance) Mortgage Loans in the Mortgage
Pool or is then a part of one of the ten largest groups (measured by aggregate
unpaid principal balance) of Mortgage Loans with related Mortgagors) 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),
SECTION 6.11 and SECTION 6.11A. If the Master Servicer receives a request for
consent to a transfer and assumption of a Specially Serviced Loan, 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
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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 (but in the case of Fitch, only if the subject Mortgage Loan is then one
of the ten largest (measured by unpaid principal balance) Mortgage Loans in the
Mortgage Pool or is then a part of one of the ten largest groups (measured by
aggregate unpaid principal balance) of Mortgage Loans with related Mortgagors)
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 unless all costs in connection therewith, including any arising
from seeking Rating Agency confirmation, are paid by the related 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 Loan documents 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 (but in the case of Fitch, only if the
subject Mortgage Loan is then one of the ten largest (measured by unpaid
principal balance) Mortgage Loans in the Mortgage Pool or is then part of one of
the ten largest groups (measured by aggregate unpaid balance) of Mortgage Loans
with related Mortgagors) 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), SECTION 6.11 and SECTION 6.11A. 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 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
this SUBSECTION (c).
(d) Notwithstanding anything to the contrary contained in this
SECTION 3.08, if the then unpaid principal balance of the subject Mortgage Loan
or Loan Pair, as applicable, is at least equal
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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 subject Mortgage
Loan is then one of the ten largest (measured by unpaid principal balance)
Mortgage Loans in the Mortgage Pool or is then part of one of the ten largest
groups (measured by aggregate unpaid balance) of Mortgage Loans with related
Mortgagors or if a Loan Pair is involved, from Fitch, 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 (but in the case of Fitch,
only if the subject Mortgage Loan is then one of the ten largest (measured by
unpaid principal balance) Mortgage Loans in the Mortgage Pool or is then part of
one of the ten largest (measured by aggregate unpaid principal balance) of
Mortgage Loans with related Mortgagors or if a Loan Pair is involved) 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 Master 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), 6.11 and 6.11A, 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
pursuant to SECTION 3.20; PROVIDED that neither the Master Servicer nor the
Special Servicer shall, with respect to any ARD Loan after its Anticipated
Repayment Date, take any enforcement action with respect to the payment of
Additional Interest (other than the making of requests for its collection)
unless (i) the taking of an enforcement action with respect to the payment of
other amounts due under such ARD Loan is, in the good faith and reasonable
judgment of the Special Servicer, necessary, appropriate and consistent with the
Servicing Standard or (ii) all other amounts due under such ARD Loan have been
paid, the payment of such Additional Interest has not been forgiven in
accordance with SECTION 3.20 and, in the good faith and reasonable judgment of
the Special Servicer, the Liquidation Proceeds expected to be recovered in
connection with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated interest accrued on
Advances. 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
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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 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
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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.
(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 REMIC Pool under the REMIC Provisions or cause any REMIC
Pool 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 or SECTION 6.11A, as applicable, 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 an 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
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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:
(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, in good faith, undertake
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 any Loan Pair, to the extent the funds
in the related Custodial Account are insufficient, shall be advanced by the
Master Servicer).
(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
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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 or
SECTION 6.11A, as applicable, 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.
(e) The Special Servicer shall report to the Master Servicer,
the Underwriters, 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 and 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. Such reports shall be in form
and substance sufficient to meet the reporting requirements imposed by Sections
6050H, 6050J and 6050P of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Mortgage Loan or REO Property, it shall
promptly notify the Trustee, 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.
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SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan or 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), as applicable, 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 Mortgage Note for such Companion Loan. 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
Mortgage Note for such Companion Loan) 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 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 Mortgage Note for such Companion Loan) 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
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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 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; Payment of Expenses;
Certain Matters Regarding Servicing Advances.
(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,
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to the extent permitted by SECTION 3.05(a) or 3.05A, 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) 100% of each modification fee 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) 50% of each assumption fee, and 100% of each
assumption application fee and each other applicable 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 Master 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
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).
(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
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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 (or, in the case of Special Servicing Fees in respect of any
Loan Pair, solely out of collections relating to such Loan Pair or any related
REO Property) on deposit in the appropriate Custodial Account pursuant to
SECTION 3.05(a) or SECTION 3.05A, as applicable.
As further compensation for its services hereunder, the
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Loan. As to each Corrected Loan, the Workout Fee shall be payable
from, and shall be calculated by application of the Workout Fee Rate to, all
collections of principal, interest (other than Default Interest and Additional
Interest), Prepayment Premiums and/or Yield Maintenance Charges received on such
Mortgage Loan for so long as it remains a Corrected Loan; PROVIDED that no
Workout Fee shall be payable from, or based upon the receipt of, Liquidation
Proceeds collected 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,
Lehman Brothers 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 or the UBS Mortgage Loan Seller pursuant to the UBS/Depositor
Mortgage Loan Purchase Agreement within 180 days of its discovery or notice of
the Breach or Document Defect that gave rise to the repurchase obligation, or in
connection with the condemnation or other governmental taking of a Mortgaged
Property or REO Property. 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 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 the Liquidation Fee with
respect to each Specially Serviced Loan or REO Property. As to each 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 no Liquidation
Fee shall be payable from, or based upon the receipt of, Liquidation Proceeds
collected 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, Lehman
Brothers 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
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to SECTION 2.03 or the UBS Mortgage Loan Seller pursuant to the UBS/Depositor
Mortgage Loan Purchase Agreement within 180 days of its discovery or notice of
the Breach or Document Defect that gave rise to the repurchase obligation, or in
connection with the 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.
(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, as the
case may be, 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).
(e) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including 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, in the case of the Special Servicer, any of the REO
Accounts, and neither the Master Servicer nor the Special Servicer shall be
entitled to reimbursement for such expenses except as expressly provided in this
Agreement.
(f) If the Master Servicer or Special Servicer is required
under any provision of this Agreement to make a Servicing Advance, but neither
does so within 15 days after such Advance is required to be made, the Trustee
shall, if it has actual knowledge of such failure on the part of the Master
Servicer or Special Servicer, as the case may be, give written notice of such
failure, as applicable, to the Master Servicer or the Special Servicer. If such
Servicing Advance is not made by the Master Servicer or the Special Servicer
within three Business Days after such notice is given to the Master Servicer or
the Special Servicer, as applicable, then (subject to a determination by the
Trustee or by the Fiscal Agent that such Servicing Advance would not, if made,
be a Nonrecoverable Servicing Advance) the Trustee shall make such Servicing
Advance. If the Trustee fails to make any Servicing Advance required to be
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made under this Agreement, 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.
(g) 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 relate 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, as applicable, for any Servicing Advance as soon as
practicable after funds available for such purpose are deposited in the related
Custodial Account.
(h) Notwithstanding anything herein to the contrary, 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, to 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, 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 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 3.11(f) unless the
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Trustee or the Fiscal Agent, in good faith, makes a determination that such
Servicing Advance would be a Nonrecoverable Advance.
(i) 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 Cherry Creek Mall Custodial Account, the
Annapolis Mall Custodial Account, the Westfield Portfolio Custodial Account or
the Sangertown Square 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 any 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).
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 2001, 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 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 shall continue to make such
inspections annually thereafter until the above
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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 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
Underwriters 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. In addition to the foregoing and solely with respect to
each Loan Pair, the Special Servicer and the Master Servicer, as applicable,
shall each consistent with the Servicing Standard, use reasonable efforts to
obtain occupancy reports, sales reports for retail tenants, 24-month rolling
lease expiration schedules, reserve balances and capital expenditure statements,
as well as information as to bankrupt tenants and tenants whose leases have
expired and have not been renewed. The Special Servicer shall, promptly
following receipt, deliver copies of the materials received or obtained by it
pursuant to the foregoing sentence to the Master Servicer, and the Master
Servicer shall promptly deliver copies of all such materials received or
obtained by it pursuant to the foregoing sentence to the Trustee, the Special
Servicer, any Controlling Class Certificateholders or, in the case of a Loan
Pair, to the related Companion Loan Noteholder, in each case upon request.
Within 30 days after receipt by the Master Servicer of any
annual operating statements with respect to any Mortgaged Property or REO
Property, the Master Servicer shall prepare or update and forward to the
Trustee, upon request, an NOI Adjustment Worksheet for such Mortgaged Property
or REO Property (with the annual operating statements attached thereto as an
exhibit).
The Master Servicer shall prepare and maintain one Operating
Statement Analysis Report for each Mortgaged Property and REO Property. The
Operating Statement Analysis Report for each Mortgaged Property and REO Property
is to be updated by the Master Servicer, within thirty days after its receipt of
updated operating statements for a Mortgaged Property or REO Property, as the
case may be. The Master Servicer shall 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
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be made available by the Master Servicer to the Trustee, the Special Servicer or
any Controlling Class Certificateholder, in each case upon request.
(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 the related 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 3.11(g), 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 each Companion Loan
Noteholder a written report, prepared in the manner set forth in SECTION 3.12,
of each inspection performed by it with respect to the Mortgaged Property that
secures such Companion Loan Noteholder's Companion Loan.
The Master Servicer shall promptly deliver to each 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 Mortgaged Property that secures such Companion Loan Noteholder's Companion
Loan.
(b) If the Mortgage Loan and Companion Loan forming any Loan
Pair constitute Specially Serviced Loans, or if the Mortgaged Property for such
Loan Pair 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 Mortgage Loan and the Companion Loan forming any
Loan Pair constitute Specially Serviced Loans, or if the Mortgaged Property for
such Loan Pair 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 3.11(g), 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 3.12A(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
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
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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 May 2000), the Master Servicer shall notify
each Companion Loan Noteholder by facsimile transmission of the expected
remittance to be made thereto on the next succeeding applicable Loan Pair
Remittance Date, 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 each Loan Pair, 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 Underwriters,
each Companion Loan Noteholder and each other, on or before April 30 of each
year, beginning April 30, 2001 (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, 2000,
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inclusive) and, in particular, 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 REMIC Pool as a REMIC or the Grantor Trust as a grantor trust,
from the IRS 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; and the Master Servicer and the
Special Servicer are hereby notified that the Depositor is required to file a
Form 10-K with the Commission in respect of the Trust covering calendar year
2000.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 2001
(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 Underwriters, 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 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; and the Master Servicer and the Special Servicer are hereby
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notified that the Depositor is required to file a Form 10-K with the Commission
in respect of the Trust covering calendar year 2000.
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 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 Underwriters, 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 such to the reasonable
satisfaction of the Master Servicer or the Special Servicer, as the case may be)
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 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
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 (except in the case of an REO Property
that previously secured a Loan Pair) 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
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time (an "REO EXTENSION") by the IRS 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 REMIC Pool or cause any REMIC Pool 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 the subject 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 Cherry Creek Mall Mortgaged
Property, the Annapolis Mall Mortgaged Property, the Westfield Portfolio
Mortgaged Property or the Sangertown Square 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
Cherry Creek Mall Mortgaged Property, the Annapolis Mall Mortgaged Property, the
Westfield Portfolio Mortgaged Property or the Sangertown Square Mortgaged
Property, the Special Servicer shall establish an REO Account solely with
respect to such property (the "CHERRY CREEK MALL REO ACCOUNT", in the case of an
REO Property that was formerly the Cherry Creek Mall Mortgaged Property, the
"ANNAPOLIS MALL REO ACCOUNT", in the case of an REO Property that was formerly
the Annapolis Mall Mortgaged Property, the "WESTFIELD PORTFOLIO REO ACCOUNT", in
the case of an REO Property that was formerly the Westfield Portfolio Mortgaged
Property, and the "SANGERTOWN SQUARE REO ACCOUNT", in the case of an REO
Property that was formerly the Sangertown Square Mortgaged Property), to be held
for the benefit of the Certificateholders and the applicable Companion Loan
Noteholder. The Pool REO Account, the Cherry Creek Mall REO Account, the
Annapolis Mall REO Account, the Westfield Portfolio REO Account and the
Sangertown Square 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
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. For purposes of the foregoing, the Pool REO Account, the
Cherry Creek Mall REO Account, the Annapolis Mall REO Account, the Westfield
Portfolio REO Account and the Sangertown Square REO Account correspond to the
Pool Custodial Account, the Cherry Creek Mall Custodial Account, the Annapolis
Mall Custodial Account, the Westfield Portfolio Custodial Account and the
Sangertown Square 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 Cherry Creek Mall Mortgaged Property, the Annapolis Mall
Mortgaged Property, the Westfield Portfolio Mortgaged Property or the Sangertown
Square 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 Tax 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 Tax Administrator
shall advise the Special Servicer of the Tax 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
Tax 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 Tax 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 Cherry Creek Mall Mortgaged
Property, the Annapolis Mall Mortgaged Property, the Westfield Portfolio
Mortgaged Property or the Sangertown Square Mortgaged Property, shall be managed
and operated based on the Servicing Standard and, further, based 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. In
connection with performing their respective duties under this SECTION 3.17(a),
both the Special Servicer and the Tax 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 Cherry Creek Mall Mortgaged Property, the Annapolis Mall
Mortgaged Property, the Westfield Portfolio Mortgaged Property or the Sangertown
Square 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
any REMIC Pool 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:
(i) all insurance premiums due and payable in respect of such
REO Property;
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(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) Without limiting the generality of the foregoing, the
Special Servicer shall not:
(i) enter into, renew or extend any New Lease with respect to
any REO Property, if the New Lease, by its terms would give rise to any
income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO
Property, other than the completion of a building or other improvement
thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the
related Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than
an Independent Contractor, to Directly Operate any Mortgaged Property
as REO Property on any date more than 90 days after the related REO
Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Special Servicer as a Servicing
Advance) to the effect that such action would not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code at any time that it is held by REMIC I, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(d) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property, other than an
REO Property that was formerly the Cherry Creek Mall Mortgaged Property, the
Annapolis Mall Mortgaged Property, the Westfield Portfolio Mortgaged Property or
the Sangertown Square Mortgaged Property, PROVIDED that:
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(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 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(d) 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 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(d) shall be deemed a Sub-Servicing Agreement for
purposes of SECTION 3.22.
SECTION 3.17A. Management and Disposition of the Cherry Creek
Mall Mortgaged Property, Annapolis Mall
Mortgaged Property, Westfield Portfolio
Mortgaged Property and Sangertown Square
Mortgaged Property After Becoming REO Property.
(a) If title to the Cherry Creek Mall Mortgaged Property, the
Annapolis Mall Mortgaged Property, the Westfield Portfolio Mortgaged Property or
the Sangertown Square 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
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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 any REMIC Pool 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, provided, that the Special Servicer shall be
permitted to earn or cause such REO Property to earn "net income from
foreclosure property" which is taxable to REMIC I if, in its
reasonable judgment, such method of earning income with respect to
such REO Property will result in a higher net after tax recovery than
another method of earning income with respect to such REO Property;
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 Cherry Creek
Mall Mortgaged Property, the Annapolis Mall Mortgaged Property, the Westfield
Portfolio Mortgaged Property or the Sangertown Square 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:
(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) Without limiting the generality of the foregoing, the
Special Servicer shall not:
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(i) enter into, renew or extend any New Lease with respect to
any REO Property, if the New Lease, by its terms would give rise to any
income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO
Property, other than the completion of a building or other improvement
thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the
related Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than
an Independent Contractor, to Directly Operate any Mortgaged Property
as REO Property on any date more than 90 days after the related REO
Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Special Servicer as a Servicing
Advance) to the effect that such action would not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code at any time that it is held by REMIC I, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(d) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property that was
formerly the Cherry Creek Mall Mortgaged Property, the Annapolis Mall Mortgaged
Property, the Westfield Portfolio Mortgaged Property or the Sangertown Square
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 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;
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(iv) none of the provisions of this SECTION 3.17A(d) 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
(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(d) 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 Cherry Creek Mall Mortgage Loan, the
Annapolis Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan or the
Sangertown Square 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, whereupon the Trustee shall, within 10 days
after receipt of such notice, notify each Controlling Class Certificateholder.
Any Controlling Class Certificateholder may, at its option (with preference
among such Holders being given to the Holder of Certificates representing the
greatest 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 SUBSECTION (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 Cherry
Creek Mall Mortgage Loan, the
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Annapolis Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan or the
Sangertown Square 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 3.26 hereof.
(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.
Following the expiration of such 5-Business Day Period, the Special Servicer and
any Controlling Class Certificateholder shall have equal rights (with preference
between such parties being given to the party that first notifies the Trustee in
writing of its intention to purchase the subject Defaulted Mortgage Loan), in
each case with priority over the Master Servicer to purchase any Defaulted
Mortgage Loan at the Purchase Price. The Purchase Price for any such Mortgage
Loan purchased under this SUBSECTION (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 Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage
Loan, the Westfield Portfolio Mortgage Loan or the Sangertown Square 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 3.26 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), 6.11 and 6.11A, 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 Cherry Creek Mall Mortgage
Loan, the Annapolis Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan or
the Sangertown Square 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 3.26 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), 6.11 and 6.11A, the Special Servicer shall accept
the first
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(and, if multiple bids are received contemporaneously or subsequently, the
highest) 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 or 6.11A, as
applicable) the Special Servicer shall dispose of such REO Property upon such
terms and conditions as the Special Servicer shall deem necessary and desirable
to maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received.
The Special Servicer shall give the Trustee 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 or any Affiliate thereof is
bidding, 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
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shall be solicited. If an additional bid or bids, as the case may be, are
received and the original bid of the Special Servicer or any Affiliate thereof
is the highest of all cash bids received, then the bid of the Special Servicer
or such Affiliate shall be accepted, PROVIDED that the Trustee has otherwise
determined, as provided above in this SECTION 3.18(e), that such bid constitutes
a fair price for any Defaulted Mortgage Loan or REO Property. Any bid by the
Special Servicer shall be unconditional; and, if accepted, the Defaulted
Mortgage Loan or REO Property shall be transferred to the Special Servicer
without recourse, representation or warranty other than customary
representations as to title given in connection with the sale of a mortgage loan
or real property.
(f) Subject to SECTIONS 3.18(a) through 3.18(e) above, SECTION
6.11 and SECTION 6.11A, 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 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 or 6.11A, as applicable,
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 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).
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SECTION 3.19. Additional Obligations of the Master Servicer;
the Special Servicer's Right to Request the
Master Servicer to Make Servicing Advances.
(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 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 45 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 and 3.11(g), 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
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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(f) and 3.20(l)
below, and further subject to SECTION 6.11 or 6.11A, as applicable, 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 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 or approval of the
mortgagee or a modification, waiver or amendment of any term thereof, PROVIDED
that such consent or approval or such modification, waiver or amendment would
not (except as permitted by SECTIONS 3.02(a) and 3.20(l) hereof) affect the
amount or timing of any of the payment terms of such Mortgage Loan or Companion
Loan (including 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,
addition 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 set forth in the proviso to 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) 50,000 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
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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 Loan Pair;
(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) none of the Cherry Creek
Mall Mortgaged Property, the Annapolis Mall Mortgaged Property, the
Westfield Portfolio Mortgaged Property or the Sangertown Square
Mortgaged Property is involved.
Except as permitted by SECTION 3.02(a), this SECTION 3.20(c)
and Section 3.20(l) 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 an Adverse
REMIC Event with respect to any REMIC Pool.
(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 (iv) accept a Principal Prepayment on any Specially Serviced Loan
during any Lockout Period or (v) extend the maturity of any Mortgage Loan;
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)),
and (C) such modification, waiver or amendment would not cause an Adverse REMIC
Event in respect of any REMIC Pool or otherwise result in a tax under the Code
to a Companion Loan Noteholder; and PROVIDED, FURTHER, that any modification,
waiver or amendment of the payment terms of any Loan Pair shall be structured so
as to be consistent with the allocation and payment priorities set forth in the
related loan documents and Co-Lender and Servicing Agreement, such that neither
the Trust as holder of the Mortgage Loan in such Loan Pair nor the related
Companion Loan Noteholder shall gain a priority over the other such holder with
respect to any payment, which priority is not, as of the date of the related
Co-Lender and Servicing Agreement, reflected in the related loan documents and
Co-Lender and Servicing Agreement.
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, complying with the standards of the Appraisal Institute, of the
related Mortgaged Property, performed by an Independent Appraiser, in connection
with such extension, which appraisal supports the determination of the Special
Servicer contemplated by CLAUSE (B) of the proviso to the immediately preceding
paragraph.
In no event shall the Special Servicer: (i) extend the
maturity date of a Mortgage Loan or Companion Loan beyond the date that is two
years prior to the last Rated Final Distribution Date; (ii) extend the maturity
date of any Mortgage Loan for more than 3 one-year periods (or, in the case of a
Loan Pair, a single one-year period), unless it receives confirmation from each
Rating Agency that an
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Adverse Rating Event would not occur as a result thereof; (iii) 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) (1) such Mortgage
Loan or Companion Loan, as the case may be, is a Balloon Loan, (2) the related
Mortgagor has failed to make the Balloon Payment at its Stated Maturity Date and
(3) 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, or (B) the related Mortgagor agrees to an increase in the related
Mortgage Rate to at least the prevailing interest rate for the entire extension
period; or (iv) 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 the date which is 10
years prior to the expiration of the term of such Ground Lease.
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 that (1) in the case of
Moody's, has an unpaid principal balance that is at least equal to the
lesser of $20,000,000 and 2% of the then aggregate principal balance of
the Mortgage Pool and (2) in the case of Fitch, is then one of the ten
largest (measured by unpaid principal balance) Mortgage Loans in the
Mortgage Pool or is then a part of one of the ten largest groups
(measured by aggregate unpaid balance) of Mortgage Loans with related
Mortgagors, 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 that (1) in the case of Moody's, has an unpaid principal
balance that is at least equal to the lesser of $20,000,000 and 2% of
the then aggregate principal balance of the Mortgage Pool and (2) in
the case of Fitch, is then one of the ten largest (measured by unpaid
principal balance) Mortgage Loans in the Mortgage Pool or is then a
part of one of the ten largest groups (measured by aggregate unpaid
balance) of Mortgage Loans with related Mortgagors, 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 owner(s)
of the related Mortgagor or any other entity required to be a single
purpose entity in respect of such Mortgage Loan.
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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 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.
(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
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
each Rating Agency (but in the case of Fitch, solely with respect to a Mortgage
Loan that is then one of the ten largest (measured by unpaid
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principal balance) Mortgage Loans in the Mortgage Pool) or is then a part of one
of the ten largest groups (measured by aggregate unpaid principal balance) of
Mortgage Loans with related Mortgagors, the Trustee, the Underwriters and the
Special Servicer of its request to the Mortgagor to defease a Mortgage Loan and
(iii) upon the written confirmation from each Rating Agency 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-UBS Commercial Mortgage Trust 2000-C3, Commercial
Mortgage Pass-Through Certificates, Series 2000-C3.
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, either Rating Agency
does not confirm in writing to the Master Servicer that the acceptance of a
pledge of the Defeasance Collateral in lieu of a full prepayment will not result
in an Adverse Rating Event.
All expenses related to the defeasance of a Defeasance Loan
shall be charged to the related Mortgagor or other responsible party.
(l) With respect to any ARD Loan after its Anticipated
Repayment Date, the Master Servicer shall be permitted, in its discretion, to
waive (such waiver to be in writing addressed to the related Mortgagor, with a
copy to the Trustee) all or any portion of the accrued Additional Interest on
such ARD Loan if, prior to the related maturity date, the related Mortgagor has
requested the right to prepay the Mortgage Loan in full together with all
payments required under such ARD Loan in connection with such prepayment except
for such accrued Additional Interest, and, further, if the Master Servicer had
determined, in its reasonable, good faith judgment, that the waiver of the
Trust's right to receive such accrued Additional Interest is reasonably likely
to produce a greater payment to Certificateholders (as a collective whole) (or,
if a Loan Pair is involved, to produce a greater payment 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) than a refusal to
waive the right to such Additional Interest; PROVIDED that, any such waiver of
Additional Interest accrued on any Loan Pair shall be structured so as to be
consistent with the allocation and payment priorities set forth in the related
loan documents and Co-Lender and Servicing Agreement, such that the related
Companion Loan Noteholder shall not gain any priority over the Trust as holder
of the Mortgage Loan in such Loan Pair with respect to the payment of such
Additional Interest. The Master Servicer shall have no liability to the Trust,
the
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Certificateholders or any other person so long as such determination is
exercised in accordance with the Servicing Standard.
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 such Mortgage Loan or Companion Loan, as the case may be,
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
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Servicing Transfer Event exists with respect to another Cross-Collateralized
Mortgage Loan in the same Cross-Collateralized Group.
(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 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
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penalty or termination fee (PROVIDED, HOWEVER, that those Sub-Servicing
Agreements in effect as of the Closing Date (or, if being negotiated as of the
Closing Date, in effect within 60 days thereafter) may only be terminated by the
Trustee or its designee as contemplated by SECTION 3.22(d) hereof and in such
additional manner as is provided in such Sub-Servicing Agreement); (iii)
provides that the Trustee, for the benefit of the Certificateholders, 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, 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 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 3.11(g), 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 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 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),
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 any Underwriter or
Mortgage Loan Seller 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 any Underwriter or Mortgage Loan Seller 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 such Underwriter or Mortgage Loan Seller, as the
case may be; 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.
(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
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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, 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.
(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.
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(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.
(x) The Master Servicer's 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.
(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 corporation, validly existing
and in good standing under the laws of the State of Florida, and the
Special Servicer is in compliance with the laws of each state in which
any Mortgaged Property is located to the extent necessary to perform
its obligations under this Agreement.
(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
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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.
(ix) The Special Servicer's 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.
(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
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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. Credit Leases.
Within 30 days after the Closing Date, the Master Servicer
shall notify the insurer under any Lease Enhancement Policy and/or 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 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
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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 3.25. 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 permit. 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 (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 Determination Date in the
previous month (if any) and the date of such report; and (ii) whether the
related Rated Party has been placed on a "credit watch".
SECTION 3.26. Certain Matters Regarding the Purchase of the
Cherry Creek Mall Mortgage Loan, the Annapolis
Mall Mortgage Loan, the Westfield Portfolio
Mortgage Loan and the Sangertown Square
Mortgage Loan.
If, pursuant to SECTION 2.03, SECTION 3.18 and SECTION 9.01,
the Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage Loan, the
Westfield Portfolio Mortgage Loan or the Sangertown Square 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 "Note 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 "Note 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 "Note A Lender" and the
"Note B Lender" as their interests appear under such agreement. The related
Servicing File shall be
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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 the following
distributions in respect of the Senior Certificates, in the following order of
priority, in each case to the extent of remaining available funds:
FIRST, 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;
SECOND, 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
THIRD, 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 as provided 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 as provided 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.
All distributions of interest made in respect of the Class X
Certificates on any Distribution Date as provided 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.
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(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 make 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 make 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 make 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 make 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 make distributions of
principal to the Holders of the Class C Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Certificates pursuant to SECTION
4.01(a) above or pursuant to any prior clause of this SECTION 4.01(b));
(vi) to make 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 make 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 make distributions of
principal to the Holders of the Class D Certificates, up to an
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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 make 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 make 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 make 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 make 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 make distributions of interest to the Holders of the
Class F Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xiv) after the Class Principal Balance of the Class E
Certificates has been reduced to zero, to make 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 make 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 make 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
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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 make 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 make 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 make 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 make distributions of
principal to the Holders of the Class H Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Certificates pursuant to SECTION
4.01(a) above or pursuant to any prior clause of this SECTION 4.01(b));
(xxi) to make 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 make 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 make 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));
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(xxiv) to make 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 make 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 make 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 make 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 make distributions of interest to the Holders of
the Class L Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxix) after the Class Principal Balance of the Class K
Certificates has been reduced to zero, to make 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 make 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 make 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 make 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
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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 make 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 make 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 make distributions of
principal to the Holders of the Class N Certificates, up to an amount
(not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date
to the Holders of any other Class of Certificates pursuant to SECTION
4.01(a) above or pursuant to any prior clause of this SECTION 4.01(b));
(xxxvi) to make distributions to the Holders of the Class N
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates and not previously reimbursed;
(xxxvii) to make distributions 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 make 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 make 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
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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(a), 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 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 to 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
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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 Trustee shall be set aside by the Trustee and held
uninvested in trust and credited to the account of the appropriate Holder. The
costs and expenses of locating the appropriate Holder and holding such funds
shall be paid out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust hereunder. If the Trustee has not,
after having taken such reasonable steps, located the related Holder by the
second anniversary of the initial sending of a check, the Trustee shall, subject
to applicable law, distribute the unclaimed funds to the Class R-III
Certificateholders.
(f) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the Trustee, the Certificate Registrar, the Depositor or the Master Servicer
shall have any responsibility therefor except as otherwise provided by this
Agreement or applicable law. The Trustee and the Depositor shall perform their
respective obligations under a Letter of Representations among the Depositor,
the Trustee and the initial Depository dated as of the Closing Date.
(g) The rights of the Certificateholders to receive
distributions from the proceeds of the Trust Fund in respect of the
Certificates, and all rights and interests of the Certificateholders in and to
such distributions, shall be as set forth in this Agreement. Neither the Holders
of any Class of Certificates nor any party hereto shall in any way be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts properly previously distributed on the Certificates.
(h) Except as otherwise provided in SECTION 9.01, whenever the
Trustee receives written notification of or expects that the final distribution
with respect to any Class of Certificates (determined, in the case of a Class of
Principal Balance Certificates, without regard to any possible
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future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to such Class of Certificates, but taking into account, 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.
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
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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 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 Net Prepayment Consideration was
received.
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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 Underwriters, 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:
(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 Mortgage Pool for the prior Distribution Date pursuant to SECTION
4.03(a) (or 4.03A(a) in the case of the Cherry Creek Mall Mortgage
Loan, the Annapolis Mall Mortgage Loan, the Westfield Portfolio
Mortgage Loan or the Sangertown Square Mortgage Loan);
(vii) (A) the aggregate amount of unreimbursed P&I Advances
that had been outstanding with respect to the Mortgage Pool 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(d) as of the close
of business on such Determination Date and (B) the aggregate amount of
unreimbursed Servicing Advances that had been outstanding with respect
to the Mortgage Pool 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 3.11(g) as of the close of business on such
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
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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
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;
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(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 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 or the related Interest Accrual
Period, as applicable;
(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 in respect
of the Mortgage Pool paid to the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent during the related Collection Period
in accordance with SECTION 3.11(g), SECTION 4.03(d) and/or SECTION
4.03A(d);
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(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 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 in
respect of the Mortgage Pool (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 of which it has actual knowledge, none
of the Master Servicer, the Special Servicer or the Trustee shall be responsible
for the accuracy or completeness of any information
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supplied to it by a Mortgagor or third party that is included in any reports,
statements, materials or information prepared or provided by the Master
Servicer, the Special Servicer or the Trustee, as applicable. None of the
Trustee, the Master Servicer or the Special 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 Underwriters, 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 Underwriters have 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, any 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, each
Underwriter and each Rating Agency without requiring such certification. 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 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
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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 any Underwriter,
without payment of any fee, and upon written request of any Certificateholders
or any other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this SECTION 4.02(a) on computer diskette to such party (such
computer diskette and such statements, reports, and/or information thereon to
bear such appropriate disclaimers and qualifications as the Depositor and the
Trustee shall determine in their reasonable discretion).
If any Certificate Owner does not receive through the
Depository or any of its Depository Participants any of the statements, reports
and/or other written information described above in this SECTION 4.02(a) that it
would otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Trustee shall forward such statements, reports and/or
other written information to such Certificate Owner as provided above, upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; PROVIDED that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this SECTION 4.02(a) to the extent it
receives, in the format required by this Agreement, 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
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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 Underwriters 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 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.
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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 Loan Pairs),
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 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. 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 Balloon Mortgage Loans
delinquent as to their respective Balloon Payments) and any REO Loans in the
Mortgage Pool (exclusive of the Loan Pairs) 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 or the immediately following 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
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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, Class F or Class G 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, Class F or Class G 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 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
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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
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 Loan
Pair Remittance Date for each Loan Pair, the Master Servicer shall, subject to
SECTION 4.03A(c) below, satisfy its obligations to make a P&I Advance on such
Loan Pair Remittance Date in respect of such 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
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respect of any Loan Pair 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 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 Mortgage Loan in such
Loan Pair on the preceding related Loan Pair Remittance Date. 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 subject P&I Advance
that would otherwise be required in respect of the Mortgage Loans without regard
to this proviso and the immediately following sentence, 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 in respect of any Loan Pair on
any related Loan Pair 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
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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 Mortgage
Loan in any Loan Pair, 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.
(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 in respect of any Loan Pair 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
such Loan Pair 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 the Custodial Account for such Loan Pair. The Master
Servicer shall, in accordance with SECTION 3.05A, reimburse itself for any
outstanding P&I Advance made thereby in respect of any Loan Pair under this
SECTION 4.03A as soon as practicable after funds available for such purpose are
deposited in the Custodial Account for such Loan Pair, and in no event shall
interest accrue in accordance with this SECTION 4.03A(d) on any P&I Advance in
respect of any Loan Pair 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
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(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 (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
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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 H and Class J 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 $10,000 in the case of the Class A-1,
Class A-2, Class B, Class C, Class D, Class E, Class F and Class G 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) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided.
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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-UBS Commercial Mortgage Trust, Series 2000-C3. 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 to a Qualified Institutional
Buyer or an Institutional Accredited Investor and 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,
Lehman Brothers 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 and that the prospective
Transferee is a Qualified Institutional Buyer or an Institutional Accredited
Investor (which Opinion of Counsel shall not be an expense of the Trust Fund or
of the Depositor, the Master Servicer, the Special Servicer, the Tax
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 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, Lehman Brothers or any of their
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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 and that the prospective Transferee is a Qualified Institutional Buyer or an
Institutional Accredited Investor. 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 Underwriters, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Tax 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, Lehman Brothers 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
Non-Registered Certificate unless it has received from the prospective
Transferee, and any Certificate Owner transferring an interest in a Book-Entry
Non-Registered Certificate shall be required to obtain from its prospective
Transferee, either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) a certification to the effect that the
purchase and holding of such Certificate or interest therein by such prospective
Transferee is exempt from the prohibited transaction provisions of Section 406
of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Trustee or such Certificate Owner, as the case may be, that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in
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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 a Class B, Class C, Class D, Class E, Class F or Class G
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
Tax 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 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
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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 Tax 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 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.
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(iii) The Tax Administrator shall make available to the IRS
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 Tax Administrator all
information in its possession necessary for the Tax Administrator to
discharge such obligation. The Person holding such Ownership Interest
shall be responsible for the reasonable compensation of the Tax
Administrator for providing information thereto 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 Tax
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 Tax
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 Tax Administrator or
the Trust), to the effect that doing so will not (1)
cause any REMIC Pool to cease to qualify as a REMIC
or be subject to an entity-level tax caused by the
Transfer of any Residual Interest Certificate to a
Person which is not a Permitted Transferee or (2)
cause a Person other than the prospective Transferee
to be subject to a REMIC-related tax caused by the
Transfer of a Residual Interest Certificate to a
Person that is not a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate,
Subordinate Certificate or Residual Interest Certificate or an interest in any
such Certificate as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Certificate, to the Certificate Owner that is
transferring such interest) a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee (or such Certificate
Owner) to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in SUBSECTIONS (b), (c) and/or (d), as
appropriate, of this SECTION 5.02.
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(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, Class H and Class J Certificates shall initially be issued
as one or more Certificates registered in the name of the Depository or its
nominee and, except as provided in SECTION 5.03(c) below, a transfer of such
Certificates may not be registered by the Certificate Registrar unless such
transfer is to a successor Depository that agrees to hold such Certificates for
the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and transfer their respective Ownership Interests
in and to such Certificates through the book-entry facilities of the Depository
and, except as provided in SECTION 5.03(c) below, shall not be entitled to
definitive, fully registered Certificates ("DEFINITIVE CERTIFICATES") in respect
of such Ownership Interests. All transfers by Certificate Owners of their
respective Ownership Interests in the Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing each such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with
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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 a Class of
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.
(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
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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
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 and 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.
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
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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 (or, if the matter
relates solely to a particular Loan Pair, out of the related Custodial Account)
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. Notwithstanding the foregoing, 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;
PROVIDED, HOWEVER, that if a Loan Pair and/or the related Companion Loan
Noteholder is involved, such expenses, costs and liabilities shall be payable
out of the related Custodial Account pursuant to SECTION 3.05A. In no 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).
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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 resignation and the resulting transfer of servicing, 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, each Underwriter, the Trustee and each Companion Loan Noteholder,
upon reasonable notice, during normal business hours access to all records
maintained thereby in respect of its rights and obligations hereunder. Upon
reasonable request, the Master Servicer and the Special Servicer shall each
furnish the Depositor, each 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
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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.
SECTION 6.09. Designation of Special Servicer and Controlling Class
Representative 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
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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 the resigning 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) the resigning 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 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.
(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, the Special Servicer or any Affiliate of either of
them 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
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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 (with a copy to the related Companion Loan Noteholder, if a Loan Pair
is involved) 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) Subject to SECTION 6.11(b), the Controlling Class Representative
will be entitled to advise the Special Servicer with respect to the following
actions of the Special Servicer; and, further subject to SECTION 6.11(b), the
Special Servicer will not be permitted to take any of the following actions
unless and until it has notified the Controlling Class Representative in writing
(with a copy to the related Companion Loan Noteholder if a Loan Pair is
involved) 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 (it being
understood and agreed 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 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;
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(iv) any acceptance of a discounted payoff;
(v) any determination to bring a Mortgaged Property or an REO
Property into compliance with applicable environmental laws or to
otherwise address Hazardous Materials located at a Mortgaged Property
or 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 any 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; and PROVIDED, FURTHER,
that, in the case of any Loan Pair, upon request of the related Companion Loan
Noteholder during the 10-Business Day period referred to above, each of the
Trustee and the Special Servicer shall consult with the related Companion Loan
Noteholder regarding its views as to the proposed action (but may, in their sole
discretion, reject any advice or direction from the related Companion Loan
Noteholder).
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 its reasons for determining to take a proposed action; PROVIDED that
such information shall also be provided, in a written format, to the Trustee,
who shall make it available for review pursuant to SECTION 8.14(b), and, insofar
as any Loan Pair is involved, to the related Companion Loan Noteholder.
Each of the Master Servicer and the Special Servicer shall notify the
Controlling Class Representative (and, in the case of the Cherry Creek Mall
Mortgage Loan, the Annapolis Mall Mortgage Loan, the Westfield Portfolio
Mortgage Loan, the Sangertown Square 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
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Special Servicer has determined, in its reasonable, good faith judgment, will)
require or cause the Special Servicer to violate any provision of this Agreement
(exclusive of SECTION 6.11(a)) or the REMIC Provisions, including the Special
Servicer's obligation to act in accordance with the Servicing Standard.
Furthermore, the Special Servicer shall not be obligated to seek approval from
the Controlling Class Representative for any actions to be taken by the Special
Servicer with respect to any particular Specially Serviced Mortgage Loan if:
(i) the Special Servicer has, as provided in SECTION 6.11(a),
notified the Controlling Class Representative in writing of various
actions that the Special Servicer proposes to take with respect to the
workout or liquidation of that Mortgage Loan; and
(ii) for 60 days following the first such notice, the
Controlling Class Representative has objected to all of those proposed
actions and has failed to suggest any alternative actions that the
Special Servicer considers to be consistent with the Servicing
Standard.
In addition, notwithstanding anything herein to the contrary, if the
unpaid principal amount of any Companion Loan (net of any existing related
Appraisal Reduction Amount) is equal to or greater than 50% of the original
unpaid principal amount of such Companion Loan, then: (i) the Controlling Class
Representative shall not be authorized to exercise any of its rights and powers
provided for in SECTION 6.11(a) with respect to such Companion Loan or the
Mortgage Loan that is secured by the same Mortgaged Property as such Companion
Loan; and (ii) SECTION 6.11A(a) shall apply with respect to such Companion Loan
and the Mortgage Loan that is secured by the same Mortgaged Property as such
Companion Loan, instead of SECTION 6.11(a).
(c) The Controlling Class Representative will have no liability to the
Certificateholders or the 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 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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(d) A Companion Loan Noteholder shall be entitled to receive, upon
request made to any party hereto, a copy of any notice or report required to be
delivered (upon request or otherwise) by such party to the Controlling Class
Representative or the Trustee with respect to the related Loan Pair. Any such
party shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies.
SECTION 6.11A. Certain Powers of the Companion Loan Noteholders.
(a) Subject to SECTION 6.11A(b), the related Companion Loan Noteholder
will be entitled to advise the Special Servicer with respect to the following
actions of the Special Servicer in connection with each Loan Pair; and, further
subject to SECTION 6.11A(b), the Special Servicer will not be permitted to take
any of the following actions with respect to any Loan Pair unless and until its
has notified the related Companion Loan Noteholder in writing and the related
Companion Loan Noteholder 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 (it being understood and agreed that
if such written objection has not been received by the Special Servicer within
such 10-Business Day period, then the related Companion Loan Noteholder's
approval will be deemed to have been given):
(i) any foreclosure upon or comparable conversion (which may
include acquisition of an REO Property) of the ownership of the
Mortgaged Property and the other collateral securing the subject Loan
Pair if the Mortgage Loan and/or the Companion Loan in such Loan Pair
come into and continue in default;
(ii) any modification, amendment or waiver of a monetary term
(including the timing of payments) or any material non-monetary term of
the Mortgage Loan and/or Companion Loan in the subject Loan Pair;
(iii) any proposed sale of the Mortgaged Property securing the
subject Loan Pair after it becomes an REO Property;
(iv) any acceptance of a discounted payoff of the Companion
Loan in the subject Loan Pair;
(v) any determination to bring the Mortgaged Property securing
the subject Loan Pair into compliance with applicable environmental
laws or to otherwise address Hazardous Materials located at such
Mortgaged Property;
(vi) any release of collateral for the subject 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 subject Loan Pair (other than in accordance with the terms of
such Loan Pair);
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause for the subject Loan Pair; and
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(ix) any acceptance of an assumption agreement releasing the
Mortgagor from liability under the subject Loan Pair;
PROVIDED that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders and the
related Companion Loan Noteholders (as a collective whole), the Special Servicer
may take any such action without waiting for the related Companion Loan
Noteholder's response.
In addition, subject to SECTION 6.11A(b), with respect to any Loan
Pair, the related Companion Loan Noteholder may direct the Special Servicer to
take, or to refrain from taking, such actions as the related Companion Loan
Noteholder may deem advisable or as to which provision is otherwise made herein.
Upon reasonable request, the Special Servicer shall, with respect to any Loan
Pair, provide the related Companion Loan Noteholder with any information in the
Special Servicer's possession with respect to such matters, including its
reasons for determining to take a proposed action.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by any Companion Loan Noteholder, as contemplated
by SECTION 6.11A(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 (exclusive of
SECTION 6.11A(a)), including the Special Servicer's obligation to act in
accordance with the Servicing Standard. Furthermore, the Special Servicer shall
not be obligated to seek approval from any Companion Loan Noteholder for any
actions to be taken by the Special Servicer with respect to the related Loan
Pair if:
(i) the Special Servicer has, as provided in Section 6.11A(a),
notified the related Companion Loan Noteholder in writing of various
actions that the Special Servicer proposes to take with respect to the
workout or liquidation of the applicable Loan Pair; and
(ii) for 60 days following the first such notice, the related
Companion Loan Noteholder has objected to all of those proposed actions
and has failed to suggest any alternative actions that the Special
Servicer considers to be consistent with the Servicing Standard.
In addition, notwithstanding anything herein to the contrary, unless
the unpaid principal amount of a Companion Loan (net of any existing related
Appraisal Reduction Amount) is equal to or greater than 50% of the original
unpaid principal amount of such Companion Loan, then: (i) the related Companion
Loan Noteholder shall not be authorized to exercise any of its rights and powers
provided for in SECTION 6.11A(a) with respect to such Companion Loan or the
Mortgage Loan that is secured by the same Mortgaged Property as such Companion
Loan; and (ii) SECTION 6.11(a) shall apply with respect to such Companion Loan
and the Mortgage Loan that is secured by the same Mortgaged Property as such
Companion Loan, instead of SECTION 6.11A(a).
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(c) No Companion Loan Noteholder will have any liability to the Trust
or the Certificateholders for any action taken, or for refraining from the
taking of any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that a Companion Loan Noteholder will not be
protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of negligent disregard of obligations or duties.
(d) A Companion Loan Noteholder may designate, in writing, a
representative to exercise its rights and powers under this SECTION 6.11A or
otherwise under this Agreement (copies of such writing to be delivered to each
of the parties hereto). Such designation shall remain in effect until it is
revoked by such Companion Loan Noteholder by a writing delivered to each of the
parties hereto.
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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 3.11(f) 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 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, 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
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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 any 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, downgraded or
withdrawn, or 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
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(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 and the Companion Loans, other than its rights, if any, as a
Certificateholder hereunder or as the holder of any Companion Loan or any
interest therein. 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 and the Companion Loans, other than its rights, if any, as a
Certificateholder hereunder or as the holder of any Companion Loan or any
interest therein, 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 (other than as a
holder thereof or any interest therein) 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 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
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the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including (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, 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
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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 on the
part of the Master Servicer 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. 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
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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, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances,
including 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 Rating Agency
confirmation of ratings), as the successor to the Master Servicer or the Special
Servicer, as the case may be, hereunder in the assumption of all or any part of
the responsibilities, duties or liabilities of the Master Servicer or the
Special Servicer, as the case may be, hereunder; PROVIDED, HOWEVER, that in the
case of a resigning or terminated Special Servicer, such appointment shall be
subject to the rights of the Holders of Certificates evidencing a majority of
the Voting Rights allocated to the Controlling Class to designate a successor
pursuant to SECTION 6.09. No appointment of a successor to the Master Servicer
or the Special Servicer hereunder shall be effective until the assumption by the
successor to such party of all its responsibilities, duties and liabilities
under this Agreement. Pending appointment of a successor to the Master Servicer
or the Special Servicer hereunder, the Trustee shall act in such capacity as
hereinabove provided. In connection with any such appointment and assumption
described herein, the Trustee may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans and Companion Loans as it
and such successor shall agree, subject to the terms of this Agreement, 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
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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.
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
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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;
(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
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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, Tax 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;
(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,
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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.
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.
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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 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 of
this Agreement, 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.
(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
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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-"), from Moody's and Fitch, respectively (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 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 or otherwise make available in accordance with this Agreement 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
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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.
(d) 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 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).
(e) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this SECTION 8.07
shall not become effective until acceptance of appointment by the successor
trustee as provided in SECTION 8.08.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in SECTION
8.07 shall execute, acknowledge and deliver to the Depositor, the Master
Servicer, the Special Servicer and to the predecessor trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee (at the expense of the Trust Fund
if the Trustee has been removed in accordance with SECTION 8.07(c) without
cause) all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files at the time held on its behalf by a
third-party Custodian, which Custodian shall become the agent of the successor
trustee), and the Depositor, the Master Servicer, the Special Servicer and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder.
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(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 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
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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 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.
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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.
(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 Tax Administrators.
(a) The Trustee may appoint at the Trustee's expense any
Person with appropriate tax-related experience to act as Tax Administrator
hereunder; PROVIDED that, in the absence of any other
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Person appointed in accordance herewith acting as Tax Administrator, the Trustee
agrees to act in such capacity in accordance with the terms hereof. The
appointment of a Tax 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 Tax Administrator. The Trustee shall cause any such Tax
Administrator appointed by it to execute and deliver to the Trustee an
instrument in which such Tax Administrator shall agree to act in such capacity,
with the obligations and responsibilities herein.
(b) Any Person into which any Tax 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 Tax Administrator shall be
a party, or any Person succeeding to the corporate agency business of any Tax
Administrator, shall continue to be the Tax Administrator without the execution
or filing of any paper or any further act on the part of the Trustee or the Tax
Administrator.
(c) Any Tax 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 Tax
Administrator appointed in accordance with this SECTION 8.13 by giving written
notice of termination to such Tax 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 Tax Administrator shall cease to be
eligible in accordance with the provisions of this SECTION 8.13, the Trustee may
appoint a successor Tax 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 Tax Administrator shall be
appointed unless eligible under the provisions of this SECTION 8.13. Any
successor Tax 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 Tax
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-
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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 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) or
6.11A(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 charges 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; 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: (i) 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 (ii) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation
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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).
(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 2000 (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 or that are readily convertible) to such
format and (y) the
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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).
(b) At all times during the Trust's fiscal year 2000 (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 (1) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings
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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 (2) 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 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 2000), 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
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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.
(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.
(ix) The Trustee has used 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 trust
business which would materially and adversely affect its ability to
perform its obligations under this Agreement. The Trustee further
represents that it has used 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 its trust
business that such vendors shall use reasonable commercial efforts to
cure any deficiencies with regards to the manipulation or calculation
of dates beyond December 31, 1999 in such systems which would
materially and adversely affect the ability of the Trustee to perform
its obligations under this Agreement.
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(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.
(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 "Aa3" from Moody's and "AA" from Fitch
(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
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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 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.
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(vi) No litigation is pending or, to the best of the Fiscal
Agent's knowledge, threatened against the Fiscal Agent that, if
determined adversely to the Fiscal Agent, would prohibit the Fiscal
Agent from entering into this Agreement or, in the Fiscal Agent's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Fiscal Agent to perform its
obligations under this Agreement or the financial condition of the
Fiscal Agent.
(vii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Fiscal Agent of or compliance by the
Fiscal Agent with this Agreement, or the consummation of the
transactions contemplated by this Agreement, has been obtained and is
effective, except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by
the Fiscal Agent under this Agreement.
(b) The representations and warranties of the Fiscal Agent set
forth in SECTION 8.18(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall given prompt written notice
thereof to the other parties hereto.
(c) Any successor Fiscal Agent shall be deemed to have made,
as of the date of its succession, each of the representations and warranties set
forth in SECTION 8.18(a) subject to such appropriate modifications to the
representations and warranties set forth in SECTION 8.18(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
All Mortgage Loans.
Subject to SECTION 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer, the Fiscal Agent and the Trustee (other
than the obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment): (i) to the Certificateholders of all amounts held by or
on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Depositor, the Master Servicer, Lehman Brothers, 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 3.11(g) 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.
Each of the Depositor, Lehman Brothers, 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 Fund is to be terminated in
connection with the Master Servicer's, the Special Servicer's, a Controlling
Class Certificateholder's, Lehman Brothers' or the Depositor's purchase of all
of the Mortgage Loans and each REO Property remaining in REMIC
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I, the Master Servicer, the Special Servicer, such Controlling Class
Certificateholder, Lehman Brothers or the Depositor, as applicable, shall
deliver to the Trustee not later than the fifth Business Day preceding the
Distribution Date on which the final distribution on the Certificates is to
occur: (x) for deposit in the Pool Custodial Account, 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 Cherry Creek Mall Mortgaged Property, the Annapolis Mall Mortgaged Property,
the Westfield Portfolio Mortgaged Property or the Sangertown Square 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); and (y) an Opinion of
Counsel, at the expense of the party effecting the purchase, stating that the
termination of the Trust satisfies the requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder. 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 3.26, the Trustee shall release or cause to be released
to the Master Servicer, the Special Servicer, the purchasing Controlling Class
Certificateholder, Lehman Brothers 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, Lehman
Brothers or the Depositor, as applicable, as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties to the Master Servicer, the
Special Servicer, the purchasing Controlling Class Certificateholder, Lehman
Brothers or the Depositor (or their respective designees), as applicable. Any
transfer of Mortgage Loans, except in the case of the Cherry Creek Mall Mortgage
Loan, the Annapolis Mall Mortgage Loan, the Westfield Portfolio Mortgage Loan or
the Sangertown Square 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 Cherry Creek Mall Mortgage Loan, the Annapolis Mall Mortgage
Loan, the Westfield Portfolio Mortgage Loan or the Sangertown Square 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 3.26 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, Lehman Brothers' 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.
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Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Collection Account that are allocable to payments on the Class of
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 (vii) of
SECTION 3.05(b), and further exclusive of any portion thereof that represents
Prepayment Premiums, Yield Maintenance Charges and/or Additional Interest, shall
be allocated in the following order of priority, in each case to the extent of
remaining available funds:
(i) to distributions of interest to the Holders of the
respective Classes of the Senior Certificates, up to an amount equal
to, and PRO RATA in accordance with, all Distributable Certificate
Interest in respect of each such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(ii) to distributions of principal to the Holders of the
respective Classes of Class A Certificates, up to an amount equal to,
and PRO RATA in accordance with, the Class Principal Balance of each
such Class of Certificates outstanding immediately prior to such
Distribution Date;
(iii) to distributions to the Holders of the respective
Classes of Class A Certificates, up to an amount equal to, PRO RATA in
accordance with, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to each
such Class of Certificates and not previously reimbursed;
(iv) to distributions of interest to the Holders of the Class
B Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class B Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(v) to distributions of principal to the Holders of the Class
B Certificates, up to an amount equal to the Class Principal Balance of
the Class B Certificates outstanding immediately prior to such
Distribution Date;
(vi) to distributions to the Holders of the Class B
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class B Certificates and not previously reimbursed;
(vii) to distributions of interest to the Holders of the Class
C Certificates up to an amount equal to all Distributable Certificate
Interest in respect of the Class C Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(viii) to distributions of principal to the Holders of the
Class C Certificates, up to an amount equal to the Class Principal
Balance of the Class C Certificates outstanding immediately prior to
such Distribution Date;
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(ix) to distributions to the Holders of the Class C
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class C Certificates and not previously reimbursed;
(x) to distributions of interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class D Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xi) to distributions of principal to the Holders of the Class
D Certificates, up to an amount equal to the Class Principal Balance of
the Class D Certificates outstanding immediately prior to such
Distribution Date;
(xii) to distributions to the Holders of the Class D
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class D Certificates and not previously reimbursed;
(xiii) to distributions of interest to the Holders of the
Class E Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class E Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xiv) to distributions of principal to the Holders of the
Class E Certificates, up to an amount equal to the Class Principal
Balance of the Class E Certificates outstanding immediately prior to
such Distribution Date;
(xv) to distributions to the Holders of the Class E
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class E Certificates and not previously reimbursed;
(xvi) to distributions of interest to the Holders of the Class
F Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class F Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xvii) to distributions of principal to the Holders of the
Class F Certificates, up to an amount equal to the Class Principal
Balance of the Class F Certificates outstanding immediately prior to
such Distribution Date;
(xviii) to distributions to the Holders of the Class F
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses if any, previously
allocated to the Class F Certificates and not previously reimbursed;
(xix) to distributions of interest to the Holders of the Class
G Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class G Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(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;
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(xxi) to distributions to the Holders of the Class G
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class G Certificates and not previously reimbursed;
(xxii) to distributions of interest to the Holders of the
Class H Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class H Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxiii) to distributions of principal to the Holders of the
Class H Certificates, up to an amount equal to the Class Principal
Balance of the Class H Certificates outstanding immediately prior to
such Distribution Date;
(xxiv) to distributions to the Holders of the Class H
Certificates up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class H Certificates and not previously reimbursed;
(xxv) to distributions of interest to the Holders of the Class
J Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class J Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxvi) to distributions of principal to the Holders of the
Class J Certificates, up to an amount equal to the Class Principal
Balance of the Class J Certificates outstanding immediately prior to
such Distribution Date;
(xxvii) to distributions to the Holders of the Class J
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class J Certificates and not previously reimbursed;
(xxviii) to distributions of interest to the Holders of the
Class K Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class K Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxix) to distributions of principal to the Holders of the
Class K Certificates, up to an amount equal to the Class Principal
Balance of the Class K Certificates outstanding immediately prior to
such Distribution Date;
(xxx) to distributions to the Holders of the Class K
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class K Certificates and not previously reimbursed;
(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;
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(xxxiii) to distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class L Certificates and not previously reimbursed;
(xxxiv) to distributions of interest to the Holders of the
Class M Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class M Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxv) to distributions of principal to the Holders of the
Class M Certificates, up to an amount equal to the Class Principal
Balance of the Class M Certificates outstanding immediately prior to
such Distribution Date;
(xxxvi) to distributions to the Holders of the Class M
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class M Certificates and not previously reimbursed;
(xxxvii) to distributions of interest to the Holders of the
Class N Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class N Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxviii)to distributions of principal to the Holders of the
Class N Certificates, up to an amount equal to the Class Principal
Balance of the Class N Certificates outstanding immediately prior to
such Distribution Date;
(xxxix) to distributions to the Holders of the Class N
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to the Class N Certificates and not previously reimbursed;
(xl) to 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;
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(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.
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, Class G and Class H 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
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have been distributed from REMIC I to REMIC II on the various REMIC I Regular
Interests in accordance with SECTION 4.01(k) and then from REMIC II to REMIC III
on the various REMIC II Regular Interests in accordance with SECTION 4.01(j).
SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor, Lehman Brothers, 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, each REMIC Pool) 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 Tax Administrator, an Opinion of Counsel, addressed to the
Trustee and the Tax 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 Tax Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax
Return for each REMIC Pool 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 the Opinion of Counsel obtained pursuant to SECTION 9.01 from
the party effecting the purchase of all the Mortgage Loans and REO
Property remaining in REMIC I;
(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,
Lehman Brothers, 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 REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Tax Administrator to specify the 90-day
liquidation period for each REMIC Pool, 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 Tax Administrator shall elect to treat each REMIC Pool
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)), respectively.
(c) The Closing Date is hereby designated as the "startup day"
of each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(d) The related Plurality Residual Interest Certificateholder
as to the applicable taxable year is hereby designated as the Tax Matters Person
of each REMIC Pool, 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 Tax Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each REMIC Pool) as agent and attorney-in-fact for the Tax Matters
Person for each REMIC Pool 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 Tax 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 IRS or
state tax authorities which extraordinary expenses shall be payable or
reimbursable to the Tax Administrator from the Trust Fund unless otherwise
provided in SECTION 10.01(i) or 10.01(j)).
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(g) Within 30 days after the Closing Date, the Tax
Administrator shall prepare and file with the IRS Form 8811, "Information Return
for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. In addition, the Tax
Administrator shall prepare, sign and file all of the other Tax Returns in
respect of each REMIC Pool. The expenses of preparing and filing such returns
shall be borne by the Tax Administrator without any right of reimbursement
therefor. The other parties hereto shall provide on a timely basis to the Tax
Administrator or its designee such information with respect to each REMIC Pool
as is in its possession and reasonably requested by the Tax 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
Tax Administrator's request therefor, shall provide in writing to the Tax
Administrator such information as is reasonably requested by the Tax
Administrator for tax purposes, as to the valuations and issue prices of the
Certificates, and the Tax 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 Tax Administrator to perform such
obligations.
(h) The Tax Administrator shall perform on behalf of each
REMIC Pool all reporting and other tax compliance duties that are the
responsibility of each such REMIC Pool under the Code, the REMIC Provisions or
other compliance guidance issued by the IRS or any state or local taxing
authority. Included among such duties, the Tax 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 reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required hereunder); and (iii) the IRS, the name, title, address and telephone
number of the Person who will serve as the representative of each REMIC Pool.
(i) The Tax Administrator shall perform its duties hereunder
so as to maintain the status of each REMIC Pool as a REMIC under the REMIC
Provisions (and the Trustee, the Master Servicer and the Special Servicer shall
assist the Tax Administrator to the extent reasonably requested by the Tax
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 Tax
Administrator, the Master Servicer, the Special Servicer, or the Trustee shall
knowingly take (or cause any REMIC Pool 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 REMIC
Pool as a REMIC, or (ii) except as provided in SECTION 3.17(a), result in the
imposition of a tax upon any REMIC Pool (including, but not limited to, the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on contributions to a REMIC set forth in Section 860G(d) of the Code) or the
result in the imposition of a tax on "net income from foreclosure property" as
defined in Section 860G(c) of the Code (any such endangerment of REMIC status
or, except as provided in SECTION 3.17(a), imposition of a tax, an "ADVERSE
REMIC EVENT"), unless the Tax 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 Tax 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
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which the Tax Administrator has advised it in writing that the Tax 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 any REMIC Pool, or causing any REMIC Pool
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
Tax Administrator or its designee, in writing, with respect to whether such
action could cause an Adverse REMIC Event to occur. The Tax 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 Tax Administrator shall make
reasonable efforts to ensure that substantially all of the assets of each REMIC
Pool 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 REMIC Pool, including
"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 any REMIC Pool 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 penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the Tax
Administrator, if such tax arises out of or results from a breach by the Tax
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 Tax Administrator out of amounts on
deposit in the Collection Account in reduction of the Available Distribution
Amount pursuant to SECTION 3.05(b).
(k) The Tax Administrator shall, for federal income tax
purposes, maintain books and records with respect to each REMIC Pool on a
calendar year and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
any REMIC Pool 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 Pool will not cause: (i) such REMIC Pool 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 Pool under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
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(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 any REMIC Pool, (C) the termination of any REMIC Pool 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 any REMIC Pool (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) any REMIC Pool to
fail to qualify as a REMIC at any time that any Certificates are outstanding; or
(y) the imposition of any tax on any REMIC Pool 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 any REMIC Pool will receive a fee or other compensation for
services nor permit any REMIC Pool 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.
SECTION 10.02. Grantor Trust Administration.
(a) The Tax 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 Tax 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 IRS or state tax authorities which
extraordinary expenses shall be payable or reimbursable to the Tax Administrator
from the Trust Fund unless otherwise provided in SECTION 10.02(e) or 10.02(f)).
(c) The Tax 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 Tax Administrator without any right of
reimbursement therefor. The Tax Administrator shall comply with such requirement
by filing Form 1041, indicating the name and address of the Trust and signed by
the Tax Administrator but otherwise left blank. There shall be appended to each
such form a schedule for each Certificateholder indicating such
Certificateholder's share of income and expenses of the Trust for the portion of
the preceding calendar year in which such Certificateholder possessed an
Ownership
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Interest in a Certificate. Such form shall be prepared in sufficient detail to
enable reporting on the cash or accrual method of accounting, as applicable, and
to report on such Certificateholder's fiscal year if other than the calendar
year. The other parties hereto shall provide on a timely basis to the Tax
Administrator or its designee such information with respect to the Grantor Trust
as is in its possession and reasonably requested by the Tax 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
Tax Administrator's request therefor, shall provide in writing to the Tax
Administrator such information as is reasonably requested by the Tax
Administrator for tax purposes, and the Tax 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 Tax Administrator to
perform such obligations.
(d) The Tax 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 IRS or any state or local taxing authority, including the
furnishing to Certificateholders of the schedules described in SECTION 10.01(c).
(e) The Tax 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 Tax Administrator to the extent reasonably requested
by the Tax 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 Tax 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 Tax 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 Tax Administrator seeks to take such action or to refrain
from taking any action for the benefit of the Certificateholders) to the effect
that the contemplated action will not result in an Adverse Grantor Trust Event.
None of the other parties hereto shall take any action or fail to take any
action (whether or not authorized hereunder) as to which the Tax Administrator
has advised it in writing that the Tax 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 Tax
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse Grantor Trust Event to occur. The Tax 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 Tax Administrator
or the Trustee.
(f) If any tax is imposed on the Grantor Trust, such tax,
together with all incidental costs and expenses (including penalties and
reasonable attorneys' fees), shall be charged to and paid by: (i) the Tax
Administrator, if such tax arises out of or results from a breach by the Tax
Administrator of
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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.
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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 or with the description thereof in
the Prospectus Supplement, (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 REMIC Pools 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 REMIC Pool 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 66b% 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 any 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 any 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 the consent of 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 outstanding and the consent 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 the consent of the Companion Loan Noteholders or (v) modify
the specified percentage of Voting Rights which are required to be held by
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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) each
Companion Loan Noteholder 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 REMIC Pool pursuant to the REMIC Provisions, cause
any REMIC Pool 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 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).
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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 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
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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-UBS Commercial Mortgage Trust 2000-C3, Series 2000-C3,
facsimile number: (212) 526-3746; (ii) in the case of the Master Servicer, First
Union National Bank, First Union Capital Markets, NC 1075, 9739 Research Drive,
URP-4, Charlotte, North Carolina 28288-1075, Attention: LB-UBS Commercial
Mortgage Trust 2000-C3, Commercial Mortgage Pass-Through Certificates, Series
2000-C3, facsimile number: (704) 593-7735; (iii) in the case of the Special
Servicer, Lennar Partners Inc., 760 N.W. 107th Avenue, Miami, Florida 33172,
Attention: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Through Certificates, Series 2000-C3, facsimile number: (305) 226-3428;
(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-UBS Commercial Mortgage Trust 2000-C3,
facsimile number: (312)904-2084; (v) in the case of the Underwriters, (A) Lehman
Brothers, Inc., Three World Financial Center, New York, New York 10285,
Attention: Tricia Hall/Commercial Mortgage Trading, facsimile number:
212-526-3746, (B) Warburg Dillon Read LLC, 299 Park Avenue, New York, New York
10171, Attention: Ahmed Alali, facsimile number: (212) 821-3162, with a copy to
Robert C, Dinerstein, General Counsel, (C) Morgan Stanley & Co. Incorporated,
1585 Broadway, New York, New York, Attention: Russell Rahbany, facsimile number:
(212) 761-3286, and (D) Deutsche Bank Securities Inc., 51 West 52nd Street, New
York, New York 10019, Attention: Tom Traynor, facsimile number: (212) 469-3215;
(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) Fitch IBCA, Inc., One State Street
Plaza, New York, New York 10004, Attention: Commercial Mortgage Surveillance
Department, facsimile number: (212) 635-0295; 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
-244-
<PAGE>
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 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.
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
-245-
<PAGE>
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. Each 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 such
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 and any designees thereof
shall be third-party beneficiaries to this Agreement with respect to their
rights as specifically provided for herein. The Cherry Creek Mall Trustee, the
Cherry Creek Mall Fiscal Agent, the Annapolis Mall Trustee, the Annapolis Mall
Fiscal Agent, Westfield Portfolio Trustee, the Westfield Portfolio Fiscal Agent,
the Sangertown Square Trustee and the Sangertown Square 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 any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.10. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
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;
-246-
<PAGE>
(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
(iii) any Officer's Certificate delivered by it to the Trustee
pursuant to SECTION 3.11(h), 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), (ii)
promptly deliver to each Rating Agency a copy of any notices given pursuant to
SECTION 7.03(a) or SECTION 7.03(b) and (iii) deliver to Fitch any of the
materials that were delivered to the Trustee by the Master Servicer or the
Special Servicer pursuant to SECTION 3.12(a) in respect of the Annapolis Mall
Loan Pair and the Westfield Portfolio Loan Pair.
(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.
-247-
<PAGE>
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.
-248-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers thereunto duly authorized, in
each case as of the day and year first above written.
STRUCTURED ASSET SECURITIES CORPORATION
Depositor
By: /s/ Mary Pat Archer
------------------------------------
Name: Mary Pat Archer
Title: Senior Vice President
FIRST UNION NATIONAL BANK
Master Servicer
By: /s/ Lisa K. Traylor
------------------------------------
Name: Lisa K. Traylor
Title: Vice President
LENNAR PARTNERS, INC.
Special Servicer
By: /s/ Ronald E. Schrager
------------------------------------
Name: Ronald E. Schrager
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Barbara L. Marik
------------------------------------
Name: Barbara L. Marik
Title: Assistant Vice President
<PAGE>
ABN AMRO BANK N.V.
Fiscal Agent
By: /s/ Barbara A. Wolf
------------------------------------
Name: Barbara A. Wolf
Title: Vice President
By: /s/ Cynthia Reis
------------------------------------
Name: Cynthia Reis
Title: First Vice President
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
<PAGE>
MORTGAGE LOAN SCHEDULE (SCHEDULE I)
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
MORTGAGE
LOAN
NUMBER PROPERTY NAME ADDRESS CITY
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 Cherry Creek Mall 3000 East First Avenue Denver
------------------------------------------------------------------------------------------------------------------------------------
2 Annapolis Mall 2002 Annapolis Mall Annapolis
------------------------------------------------------------------------------------------------------------------------------------
3 Westfield Portfolio Various Various
------------------------------------------------------------------------------------------------------------------------------------
4 Sangertown Square Route 5 and Route 5A New Hartford
------------------------------------------------------------------------------------------------------------------------------------
5 Southern Company Center 270 Peachtree Street Atlanta
------------------------------------------------------------------------------------------------------------------------------------
6 Metro Plaza Shopping Center Washington Boulevard and 6th Street Jersey City
------------------------------------------------------------------------------------------------------------------------------------
7 Deposit Guaranty Plaza 210 E. Capital Street Jackson
------------------------------------------------------------------------------------------------------------------------------------
8 Cedarbrook Corporate Center Building 5 5 Cedar Brook Drive Cranbury
------------------------------------------------------------------------------------------------------------------------------------
9 2 and 4 Gannett Drive 2 Gannett Drive and 4 Gannett Drive White Plains
------------------------------------------------------------------------------------------------------------------------------------
10 New Media & Arts Center 450 West 15th Street New York City
------------------------------------------------------------------------------------------------------------------------------------
11 Pepper Square Shopping Center 14902 Preston Road Dallas
------------------------------------------------------------------------------------------------------------------------------------
12 Pinewood Chase Apartments 5601 Regency Park Court Suitland
------------------------------------------------------------------------------------------------------------------------------------
13 Eagle Rock 2700 Colorado Boulevard Eagle Rock
------------------------------------------------------------------------------------------------------------------------------------
14 Deposit Guaranty Tower & Building 333 Texas Street Shreveport
------------------------------------------------------------------------------------------------------------------------------------
15 Park Place Apartments 1300 North L Street Lompoc
------------------------------------------------------------------------------------------------------------------------------------
17 Stop & Shop - Meriden, CT 71 Parker Avenue Meriden
------------------------------------------------------------------------------------------------------------------------------------
18 205-11 Montague Street 205-11 Montague Street Brooklyn
------------------------------------------------------------------------------------------------------------------------------------
19 Reisterstown Square Apartments 6510 Eberle Drive Baltimore
(Reisterstown)
------------------------------------------------------------------------------------------------------------------------------------
20 Five Points Plaza 40 Marietta Street Atlanta
------------------------------------------------------------------------------------------------------------------------------------
21 SecurCare Boulder Portfolio Various Boulder
------------------------------------------------------------------------------------------------------------------------------------
22 Speedway Plaza 290 Turnpike Road Westborough
------------------------------------------------------------------------------------------------------------------------------------
23 River Oaks West Shopping Center 530-603 West River Oaks Drive orrence Avenue Calumet City
------------------------------------------------------------------------------------------------------------------------------------
24 Deposit Guaranty - Building 200 E. Capitol Street Jackson
------------------------------------------------------------------------------------------------------------------------------------
25 Best Western Carmel Mission Inn 7200 South 156th Street Carmel
------------------------------------------------------------------------------------------------------------------------------------
26 Grammercy Parc Apartments 2001 E. Tropicana Avenue Las Vegas
------------------------------------------------------------------------------------------------------------------------------------
27 Foshay Tower 821 Marquette Avenue Minneapolis
------------------------------------------------------------------------------------------------------------------------------------
28 Forestdale Apartments 3351-C Forestdale Drive Burlington
------------------------------------------------------------------------------------------------------------------------------------
29 Whispering Oaks Apartments 2443 West Dugdale Road Waukegan
------------------------------------------------------------------------------------------------------------------------------------
30 Scarbrough Building 101 W. 6th St. Austin
------------------------------------------------------------------------------------------------------------------------------------
31 Central Forest Shopping Center 11617 North Central Expressway Dallas
------------------------------------------------------------------------------------------------------------------------------------
32 Wellington Country Plaza 12765-12850 West Forest Hill Blvd. Wellington
------------------------------------------------------------------------------------------------------------------------------------
33 Littlefield Building 106 E. Sixth Street Austin
------------------------------------------------------------------------------------------------------------------------------------
34 Timberlyne Shopping Center 1129 Weaver Dairy Road Chapel Hill
------------------------------------------------------------------------------------------------------------------------------------
35 29 West 35th Street 29 West 35th Street New York
------------------------------------------------------------------------------------------------------------------------------------
36 Peacock Center 504 Ridgeville Road Mount Airy
------------------------------------------------------------------------------------------------------------------------------------
37 Nabisco Warehouse & Distribution Complex 2005, 2040, 2100, and 2150 W. 43rd St./4334 S. Damen Ave. Chicago
------------------------------------------------------------------------------------------------------------------------------------
38 Ballenger Creek Plaza 5830 Ballenger Creek Pike Frederick
------------------------------------------------------------------------------------------------------------------------------------
39 Bishop's Corner West 345 North Main Street West Hartford
------------------------------------------------------------------------------------------------------------------------------------
40 Montgomery Commons East Boulevard/Calmar Drive Montgomery
------------------------------------------------------------------------------------------------------------------------------------
41 Winchester Marketplace 40515,40665, 40695, 40705 & 40825 Winchester Road Temecula
------------------------------------------------------------------------------------------------------------------------------------
43 La Paz Apartments 160 Virgil Avenue Los Angeles
------------------------------------------------------------------------------------------------------------------------------------
44 The Atria at Hillcrest 158-13 72nd Avenue Flushing
------------------------------------------------------------------------------------------------------------------------------------
45 Citizens Trust Company Bldg. 75 Piedmont Avenue Northeast Atlanta
------------------------------------------------------------------------------------------------------------------------------------
46 229-233 Seventh Street 229-233 Seventh Street Garden City
------------------------------------------------------------------------------------------------------------------------------------
47 Woodbridge Village Apartments 1900-1948 North Marianna Avenue Los Angeles
------------------------------------------------------------------------------------------------------------------------------------
48 Mooresville Festival Shopping Center 3904-3990 West Highway 150 Mooresville
------------------------------------------------------------------------------------------------------------------------------------
49 901 Hugh Wallis Road (BellSouth Building) 901 Hugh Wallis Road Lafayette
------------------------------------------------------------------------------------------------------------------------------------
50 800 North Pearl 800 North Pearl Street Albany
------------------------------------------------------------------------------------------------------------------------------------
51 Town North Shopping Center 3500-3600 North Belt Line Road Irving
------------------------------------------------------------------------------------------------------------------------------------
52 Route 7 Commerce Center 9409 and 9411 Philadelphia Road Rossville
------------------------------------------------------------------------------------------------------------------------------------
53 Post Road Plaza 260-300 Boston Post Road Port Chester
------------------------------------------------------------------------------------------------------------------------------------
54 Chapel Wood Apartments 1425 Nova Avenue Capital
Heights
------------------------------------------------------------------------------------------------------------------------------------
55 Enterprise Park 6155 Corporate Drive Houston
------------------------------------------------------------------------------------------------------------------------------------
56 Marion Ridge Apartments 1829 E. Marion Street #100 Shelby
------------------------------------------------------------------------------------------------------------------------------------
57 Orica North 100 Park Plaza Drive Secaucus
------------------------------------------------------------------------------------------------------------------------------------
58 Torrance Tech Park 370-390 Amapola Avenue Torrance
------------------------------------------------------------------------------------------------------------------------------------
59 2720 Dupont Commerce Center 2720 DuPont Commerce Court Fort Wayne
------------------------------------------------------------------------------------------------------------------------------------
61 Oradell Medical Plaza 550 Kinderamack Road Oradell
------------------------------------------------------------------------------------------------------------------------------------
62 River Drive 380-400 River Drive Passaic
------------------------------------------------------------------------------------------------------------------------------------
63 The Joseph Cory Warehouse 888 Newark Avenue Jersey City
------------------------------------------------------------------------------------------------------------------------------------
64 Horizons Office Bldg 1401 Forum Way West Palm
Beach
------------------------------------------------------------------------------------------------------------------------------------
67 Bernard Court Shopping Center 1843 Highland Drive Jonesboro
------------------------------------------------------------------------------------------------------------------------------------
68 Oakwood Apartments 745 Boundary Street Newton
------------------------------------------------------------------------------------------------------------------------------------
70 Foxcroft Village MHP 20 Foxcroft Village Lane Loch Sheldrake
------------------------------------------------------------------------------------------------------------------------------------
71 Heron Walk 3506 Cove View Boulevard Galveston
------------------------------------------------------------------------------------------------------------------------------------
72 17 Corporate Plaza Office Building 17 Corporate Plaza Newport Beach
------------------------------------------------------------------------------------------------------------------------------------
73 Westlake Office Building 310 Technology Ave Norcross
------------------------------------------------------------------------------------------------------------------------------------
74 Fiesta Travel Trailer Resort 3811 East University Drive Mesa
------------------------------------------------------------------------------------------------------------------------------------
75 Cap Senior - Crosswood Oaks 6650 Crosswood Circle Citrus Heights
------------------------------------------------------------------------------------------------------------------------------------
76 Carlyle Crossing 6300 Vega Drive Fort Worth
------------------------------------------------------------------------------------------------------------------------------------
77 GSE Building 9189 Red Branch Road Columbia
------------------------------------------------------------------------------------------------------------------------------------
78 680 Arthur Kill Road 680-686 Arthur Kill Road Staten Island
------------------------------------------------------------------------------------------------------------------------------------
79 Hampton Inn - Carlisle 1164 Harrisburg Pike Carlisle
------------------------------------------------------------------------------------------------------------------------------------
80 Ironwood Plaza 23920 Ironwood Plaza Moreno Valley
------------------------------------------------------------------------------------------------------------------------------------
82 Parkview Estates 995 North Denton Boulevard Fort Walton
Beach
------------------------------------------------------------------------------------------------------------------------------------
83 Wallace Crossing Shopping Center 715 N. Norwood Street Wallace
------------------------------------------------------------------------------------------------------------------------------------
84 Palomar Village 687-693 Palomar Street Chula Vista
------------------------------------------------------------------------------------------------------------------------------------
85 Stanton Oaks Shopping Center 4201 Green Oaks Blvd West Arlington
------------------------------------------------------------------------------------------------------------------------------------
86 West Pointe Shopping Center 2900 Kings Highway Paragould
------------------------------------------------------------------------------------------------------------------------------------
87 Four Seasons Business Park VI,Buildings 1, 2, 6830 North Eldridge Parkway Houston
and 3
------------------------------------------------------------------------------------------------------------------------------------
88 Littlefield Mall 115 E. Sixth Street Austin
------------------------------------------------------------------------------------------------------------------------------------
89 Highlands Retail Center 951 West Interstate Highway 20 Arlington
------------------------------------------------------------------------------------------------------------------------------------
91 151 West 25th Street 151 West 25th Street New York
------------------------------------------------------------------------------------------------------------------------------------
92 La Croix Court Apartments 14 La Croix Court Drive a/k/a 75 Carry Lane Rochester(Town
of Irondequiot)
------------------------------------------------------------------------------------------------------------------------------------
93 Everglades Apartments 1103 23rd Street North Pell City
------------------------------------------------------------------------------------------------------------------------------------
94 Plaza Building 120 North Congress Street Jackson
------------------------------------------------------------------------------------------------------------------------------------
95 Sycamore Green Apartments 52 Strathmore Circle Rochester
------------------------------------------------------------------------------------------------------------------------------------
96 Crystal Inn - Logan 853 South Highway 89 Logan
------------------------------------------------------------------------------------------------------------------------------------
97 Valley Plaza Shopping Center 16932-17020 E. Quincy Avenue Aurora
------------------------------------------------------------------------------------------------------------------------------------
98 La Palma Corporate Park (Buildings 4-8) 2970, 2990, 2992 East La Palma Ave., 1035,
1045 Armando St Anaheim
------------------------------------------------------------------------------------------------------------------------------------
99 Hampton Inn - Selinsgrove 2-16 South Market Street Shamokin Dam
------------------------------------------------------------------------------------------------------------------------------------
100 Mid America Business Park II 8021 Mid America Boulevard Oklamoma City
------------------------------------------------------------------------------------------------------------------------------------
101 UNOVA Industrial Building 2807-2927 Elliott & 33653 Dequindre Rd. Troy
------------------------------------------------------------------------------------------------------------------------------------
103 Walgreens - Dallas, TX 8310 Abrams Road Dallas
------------------------------------------------------------------------------------------------------------------------------------
104 Cambridge Place Apartments 435-441 Cambridge Street Boston
------------------------------------------------------------------------------------------------------------------------------------
106 Merchant's Village 4115 Columbia Rd. Martinez
------------------------------------------------------------------------------------------------------------------------------------
107 Federal Express Buildings Various Various
------------------------------------------------------------------------------------------------------------------------------------
108 Santiago Parkside Estates 1155 South Riverside Avenue Rialto
------------------------------------------------------------------------------------------------------------------------------------
109 Suni Sands RV Resort 1960 East 32nd Street Yuma
------------------------------------------------------------------------------------------------------------------------------------
110 Clay Commons Shopping Center 8075 Oswego Road Clay
------------------------------------------------------------------------------------------------------------------------------------
111 Gold Coast Strip Center 1577-1595 Northern Boulevard Manhasset
------------------------------------------------------------------------------------------------------------------------------------
112 CVS - Baltimore, MD 5603 Old Frederick Road Catonsville
------------------------------------------------------------------------------------------------------------------------------------
113 Plaza Verdugo Medical Center 1809 Verdugo Boulevard Glendale
------------------------------------------------------------------------------------------------------------------------------------
114 Oakridge Estates,Decatur andValley View MHPs 2950 W. 1100 N. Rd.521 S. 13th St. 4497 W. 200 N. Huntington
------------------------------------------------------------------------------------------------------------------------------------
115 La Palma Corporate Park (Buildings 2 & 3) 2910 & 2940 East La Palma Avenue Anaheim
------------------------------------------------------------------------------------------------------------------------------------
116 Tarponaire Mobile Resort 38791 US Highway 19 North Tarpon Springs
------------------------------------------------------------------------------------------------------------------------------------
117 One Park Place One Park Place Peekskill
------------------------------------------------------------------------------------------------------------------------------------
118 Lake Creek Crossing Shopping Center 1205 Round Rock Avenue Round Rock
------------------------------------------------------------------------------------------------------------------------------------
119 275 Broome Industrial Parkway (Dick's) 275 Broome Industrial Parkway Conklin
------------------------------------------------------------------------------------------------------------------------------------
121 Comfort Inn - Harrisburg 7744 Linglestown Road Harrisburg
------------------------------------------------------------------------------------------------------------------------------------
122 Westway Office Park 8000 Harwin Drive Houston
------------------------------------------------------------------------------------------------------------------------------------
123 54 Regional Drive 54 Regional Drive Concord
------------------------------------------------------------------------------------------------------------------------------------
124 2044 Ocean Avenue 2044 Ocean Avenue Brooklyn
------------------------------------------------------------------------------------------------------------------------------------
125 The Whitney Hotel 700 Woodrow Street Columbia
------------------------------------------------------------------------------------------------------------------------------------
126 Office Max-Morristown 2583 East Morris Boulevard Morristown
------------------------------------------------------------------------------------------------------------------------------------
127 Sun Lake Estates Mobile Home Park 4865 Lake Ontario Drive Cocoa
------------------------------------------------------------------------------------------------------------------------------------
128 Crestwood Village MHP 2154 North Oregon St. St. Helens
------------------------------------------------------------------------------------------------------------------------------------
129 CVS - Enfield, CT 875 Enfield Street Enfield
------------------------------------------------------------------------------------------------------------------------------------
130 Deserama Mobile Ranch 2434 E. Main Street Mesa
------------------------------------------------------------------------------------------------------------------------------------
131 The Barons Apartments 91 Queen Street Southington
------------------------------------------------------------------------------------------------------------------------------------
132 August Manor Apartments 8951 NE 8th Avenue & 800 NE 90th Street Miami
------------------------------------------------------------------------------------------------------------------------------------
133 426 West Broadway 426 West Broadway New York City
------------------------------------------------------------------------------------------------------------------------------------
134 Walnut Hill Apartments 1550 Blalock Houston
------------------------------------------------------------------------------------------------------------------------------------
135 Chesterfield Commons Shopping Center 831 Chesterfield Highway Cheraw
------------------------------------------------------------------------------------------------------------------------------------
136 714 Lexington Avenue 714 Lexington Avenue New York
------------------------------------------------------------------------------------------------------------------------------------
137 Apache Gardens Mobile Home Park 1617 North Ironwood Drive Apache
Junction
------------------------------------------------------------------------------------------------------------------------------------
138 Ingram Oaks 400 Live Oak Ingram
------------------------------------------------------------------------------------------------------------------------------------
139 Wayne Garden Apartments 101 West Browning Road Collingswood
------------------------------------------------------------------------------------------------------------------------------------
140 CVS - Hinckley, OH SEC West 130th Street and Boston Road Hinckley
Township
------------------------------------------------------------------------------------------------------------------------------------
142 CVS - Elberton, GA 232 Elbert Street Elberton
------------------------------------------------------------------------------------------------------------------------------------
144 509 East Sixth Street 509 East Sixth Street New York
------------------------------------------------------------------------------------------------------------------------------------
145 67th & Bell Southeast Corner of Bell Road and 67th Avenue Glendale
------------------------------------------------------------------------------------------------------------------------------------
146 Oakhill Family Park 1003 Oak Hill Avenue Attleboro
------------------------------------------------------------------------------------------------------------------------------------
147 Capri Villas Apartments 4832 Main Street Jacksonville
------------------------------------------------------------------------------------------------------------------------------------
148 Pine Meadows Apartments 2200 Faraway Drive Columbia
------------------------------------------------------------------------------------------------------------------------------------
149 University Home Mobile Home Park E. 9518 4th Avenue Spokane
------------------------------------------------------------------------------------------------------------------------------------
151 Crescent City Shopping Center 925 Summit Street Crescent City
------------------------------------------------------------------------------------------------------------------------------------
152 Town Square Apartments 1123 S. Witter Pasadena
------------------------------------------------------------------------------------------------------------------------------------
153 Arbor I 190 Chamberlain Highway Meriden
------------------------------------------------------------------------------------------------------------------------------------
154 Summitwood Apartments 80, 156-174, & 153-185 Sam's Road Meriden
------------------------------------------------------------------------------------------------------------------------------------
155 Shady Rest Mobile Home and RV Park 11435 E Apache Trail Apache
Junction
------------------------------------------------------------------------------------------------------------------------------------
156 Bangs MHP 30 Kendall Pond Road Derry
------------------------------------------------------------------------------------------------------------------------------------
157 San Vicente Shopping Center 11706-11712 San Vicente Boulevard Los Angeles
------------------------------------------------------------------------------------------------------------------------------------
158 Las Brisas Apartments 4500 North Main Houston
------------------------------------------------------------------------------------------------------------------------------------
159 Malibu Court 1702 Wirt Road Houston
------------------------------------------------------------------------------------------------------------------------------------
161 Main Place Apartments 923-947 Main Street New Britain
------------------------------------------------------------------------------------------------------------------------------------
162 The 1940 Building 1940 116th Avenue NE Bellevue
------------------------------------------------------------------------------------------------------------------------------------
163 Canal Studios 243 & 278 North Union Street Lambertville
------------------------------------------------------------------------------------------------------------------------------------
165 Liberty Place Professional Building 3211 Liberty Street Erie
------------------------------------------------------------------------------------------------------------------------------------
166 Grant Square 15 Fernwood Avenue Clearwater
------------------------------------------------------------------------------------------------------------------------------------
167 Post Oak Manor 11211 S. Post Oak Road Houston
------------------------------------------------------------------------------------------------------------------------------------
168 South Grand Apartments 15430 East Freeway Channelview
------------------------------------------------------------------------------------------------------------------------------------
169 AAA Mini-Storage 7625 North Loop East Freeway Houston
------------------------------------------------------------------------------------------------------------------------------------
170 Welsh Gardens 2630 Welsh Road Philadelphia
------------------------------------------------------------------------------------------------------------------------------------
171 Wellwood Manor 606 W. Maple Avenue Merchantville
Borough
------------------------------------------------------------------------------------------------------------------------------------
172 Hickory Point MHP 1181 Anclote Road Tarpon Springs
------------------------------------------------------------------------------------------------------------------------------------
173 Creekside Mobile Home Park 2561 Kingston Road Leicester
------------------------------------------------------------------------------------------------------------------------------------
174 10 Parker Street 10 Parker Street Port Chester
------------------------------------------------------------------------------------------------------------------------------------
175 38th Street Apartments 24 West 38th Street Jacksonville
------------------------------------------------------------------------------------------------------------------------------------
176 West Village II Ltd. 311-13 N 33rd Street & 3225-27 Powelton Avenue Philadelphia
------------------------------------------------------------------------------------------------------------------------------------
177 The Janwood Apartments 1706 Pasadena Boulevard Pasadena
------------------------------------------------------------------------------------------------------------------------------------
178 Apartments 22 2202 E. 136th Avenue Tampa
------------------------------------------------------------------------------------------------------------------------------------
179 West Village Ltd. 3201, 3205-07, 3211, 3217-23 Powelton Avenue Philadelphia
------------------------------------------------------------------------------------------------------------------------------------
180 Hillcrest Apartments 115 North 34th Street Philadelphia
------------------------------------------------------------------------------------------------------------------------------------
181 East Wind Apartments 115 Trenton Road Brown Mills
(Pemberton Twp.)
------------------------------------------------------------------------------------------------------------------------------------
182 University Village Apartments 306 N. 32nd Street & 3214-3218Street Philadelphia
------------------------------------------------------------------------------------------------------------------------------------
183 Minden Square Apartments 5444-5540 & 5435-5473 Minden Avenue Houston
------------------------------------------------------------------------------------------------------------------------------------
184 Park Villa Apartments 2505-2525 Royal Palm Avenue Fort Myers
------------------------------------------------------------------------------------------------------------------------------------
185 263 Genesee Street 263 Genesee Street Utica
------------------------------------------------------------------------------------------------------------------------------------
186 Rio Vista Apartments 1116 FM 78 Schertz
------------------------------------------------------------------------------------------------------------------------------------
188 166 Jewett Avenue 166 Jewett Avenue Jersey City
------------------------------------------------------------------------------------------------------------------------------------
189 14 Kensington Avenue 14 Kensington Avenue Jersey City
------------------------------------------------------------------------------------------------------------------------------------
190 Zabriskie Arms Condominium 149 Zabriskie Street Jersey City
------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
MORTGAGE Cut-off Monthly Remaining Remaining Interest Administrative
LOAN Zip Date P&I Mortgage term to Maturity- Amortization Accrual Cost
NUMBER State Code Balance Payment Rate Maturity ARD Term Basis Rate
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 CO 80206 148,497,918.00 1,143,861.16 7.68 75 8/11/06 300 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
2 MD 21401 122,873,596.80 939,216.06 8.251 115 12/11/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
3 CA Various 99,000,000.00 767,077.85 8.285 115 12/11/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
4 NY 13413 62,145,749.92 509,109.69 8.987 115 12/1/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
5 GA 30303 36,266,700.54 261,923.33 7.77 110 7/1/09 350 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
6 NJ 7302 26,437,124.35 198,154.93 8.2 116 1/1/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
7 MS 39201 25,708,264.29 199,294.63 8.55 113 10/6/09 353 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
8 NJ 8512 22,961,104.48 183,245.71 8.89 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
9 NY 10604 20,453,825.21 156,466.46 8.42 116 1/11/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
10 NY 10011 18,964,383.23 155,208.07 9.17 116 1/11/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
11 TX 75240 17,870,835.70 144,929.94 9.07 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
12 MD 20902 16,900,746.06 124,147.94 7.95 110 7/10/09 350 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
13 CA 90041 16,792,557.20 125,650.12 8.177 115 12/11/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
14 LA 71101 16,540,976.31 128,228.32 8.55 113 10/6/09 353 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
15 CA 93436 14,764,636.80 110,356.19 8.17 80 1/1/07 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
17 CT 6450 14,255,134.11 125,550.62 8.66 238 3/1/20 238 30/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
18 NY 11242 13,692,439.11 106,213.23 8.55 112 9/11/09 352 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
19 MD 21215 13,471,051.66 105,001.62 8.625 116 1/11/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
20 GA 30303 13,286,194.94 95,954.81 7.77 110 7/1/09 350 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
21 CO Various 13,032,844.11 108,235.34 8.81 54 11/1/04 294 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
22 MA 1581 12,764,973.32 96,522.30 8.29 115 12/1/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
23 IL 60409 12,280,234.58 106,922.45 8.33 122 7/1/10 230 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
24 MS 39201 11,957,332.21 92,695.18 8.55 113 10/6/09 353 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
25 CA 93923 11,352,167.16 93,956.84 8.78 79 12/1/06 295 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
26 NV 89115 10,867,555.00 79,676.60 7.96 115 12/1/09 355 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
27 MN 55402 10,681,260.16 83,947.79 8.72 117 2/1/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
28 NC 27215 10,662,347.71 79,559.59 8.14 114 11/1/09 354 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
29 IL 60085 10,233,912.85 84,324.23 9.25 117 2/6/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
30 TX 78701 9,726,866.50 72,906.06 8.2 56 1/1/05 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
31 TX 75243 9,584,195.93 77,381.96 9.02 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
32 FL 33414 9,575,207.50 76,473.88 8.72 56 1/1/05 332 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
33 TX 78701 9,103,349.44 68,232.59 8.2 56 1/1/05 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
34 NC 27514 8,947,730.50 65,850.69 7.97 110 7/1/09 350 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
35 NY 10001 8,830,011.22 70,406.50 8.88 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
36 MD 21771 8,796,722.81 61,759.33 7.48 111 8/6/09 351 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
37 IL 60609 8,709,813.14 68,639.61 8.75 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
38 MD 21703 8,647,625.82 60,712.56 7.48 111 8/6/09 351 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
39 CT 6117 8,230,926.06 62,327.83 8.31 116 1/1/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
40 AL 36116 8,082,014.76 62,167.22 8.48 116 1/1/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
41 CA 92590 8,066,979.56 59,604.42 8.03 113 10/6/09 353 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
43 CA 90004 7,735,742.34 59,480.98 8.48 81 2/1/07 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
44 NY 11375 7,206,546.24 52,441.78 7.85 110 7/11/09 350 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
45 GA 30303 6,885,558.80 54,159.17 8.725 116 1/11/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
46 NY 11530 6,594,442.94 53,152.59 9.01 58 3/1/05 358 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
47 CA 90032 6,514,261.42 47,492.05 7.875 111 8/6/09 351 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
48 NC 28115 6,516,000.00 45,150.45 8.315 116 1/11/10 0 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
49 LA 70508 5,929,328.90 56,895.09 8.11 116 1/1/10 150 30/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
50 NY 12204 5,950,411.81 47,628.20 8.33 111 8/1/09 291 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
51 TX 75243 5,890,584.69 48,196.19 9.17 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
52 MD 21237 5,641,340.46 43,254.17 8.445 116 1/11/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
53 NY 10573 5,640,096.87 45,693.04 9.055 116 1/11/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
54 MD 20743 5,487,787.80 42,212.31 8.48 116 1/11/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
55 TX 77036 5,479,506.10 41,803.97 8.375 77 10/11/06 353 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
56 NC 28152 5,431,055.54 40,714.37 8.19 114 11/1/09 354 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
57 NJ 7094 5,334,745.51 39,742.33 8.13 115 12/1/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
58 CA 90501 5,310,663.45 41,700.57 8.71 57 2/1/05 357 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
59 IN 46825 5,089,260.97 39,939.73 8.7 116 1/1/10 356 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
61 NJ 7649 5,015,987.37 37,496.11 8.125 108 5/1/09 348 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
62 NJ 7055 4,985,385.15 39,782.25 8.875 114 11/11/09 354 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
63 NJ 7306 4,953,901.91 38,253.45 8.5 112 9/11/09 352 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
64 FL 33406 4,736,511.75 38,858.38 8.69 117 2/1/10 297 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
67 AR 72402 4,362,903.60 32,867.91 8.25 115 12/6/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
68 NC 28658 4,288,803.32 33,002.35 8.48 115 12/1/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
70 NY 12759 4,145,975.00 31,998.19 8.53 58 3/1/05 358 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
71 TX 77554 4,110,054.36 30,325.32 8.02 78 11/1/06 354 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
72 CA 92660 4,103,755.16 30,555.84 8.1 111 8/1/09 351 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
73 GA 30092 4,079,696.08 30,801.93 8.25 111 8/11/09 351 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
74 AZ 85205 4,078,418.00 29,033.65 7.63 112 9/1/09 352 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
75 CA 95621 4,058,754.45 32,111.08 8.2 112 9/1/09 292 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
76 TX 76133 4,041,835.89 29,802.21 8.03 81 2/1/07 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
77 MD 21045 4,033,395.65 31,514.89 8.63 112 9/11/09 352 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
78 NY 10308 3,975,868.04 32,587.34 8.64 113 10/1/09 293 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
79 PA 17013 3,950,000.00 33,782.70 8.94 119 4/1/10 276 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
80 CA 92557 3,827,642.80 29,526.28 8.5 114 11/6/09 354 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
82 FL 32547 3,793,718.26 30,575.66 9 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
83 NC 28466 3,793,358.41 29,840.35 8.73 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
84 CA 91911 3,745,821.80 28,459.37 8.33 113 10/6/09 353 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
85 TX 76016 3,744,015.70 30,633.17 9.17 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
86 AR 72450 3,739,631.63 28,172.50 8.25 115 12/6/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
87 TX 77084 3,736,257.28 28,668.32 8.4375 113 10/6/09 353 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
88 TX 78701 3,666,280.44 27,479.98 8.2 56 1/1/05 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
89 TX 75231 3,596,617.25 28,038.86 8.64 118 3/1/10 358 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
91 NY 10001 3,493,691.46 27,110.66 8.58 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
92 NY 14609 3,492,031.67 26,602.53 8.375 116 1/11/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
93 AL 35125 3,487,147.81 26,738.53 8.43 113 10/6/09 353 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
94 MS 39201 3,424,920.28 27,293.47 8.86 114 11/6/09 354 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
95 NY 14609 3,394,008.45 26,602.25 8.69 117 2/1/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
96 UT 84321 3,377,669.28 28,509.40 8.99 112 9/1/09 292 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
97 CO 80015 3,354,000.00 23,268.38 8.325 116 1/11/10 0 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
98 CA 92806 3,336,793.60 24,955.75 8.16 53 10/1/04 353 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
99 PA 17870 3,300,000.00 28,223.52 8.94 119 4/1/10 276 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
100 OK 73135 3,282,885.33 25,507.40 8.59 116 1/1/10 356 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
101 MI 48083 3,257,003.00 24,236.65 7.43 108 5/11/09 288 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
103 TX 75243 3,216,055.16 28,232.78 8.57 236 1/1/20 236 30/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
104 MA 2134 3,215,663.19 23,821.47 8.07 115 12/11/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
106 GA 30907 3,141,268.08 23,642.76 8.24 115 12/1/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
107 FL Various 3,103,778.63 25,250.61 8.83 116 1/1/10 320 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
108 CA 92376 3,063,972.00 22,728.91 8.06 75 8/1/06 351 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
109 AZ 85364 2,991,705.00 22,538.00 8.25 115 12/1/09 355 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
110 NY 13090 2,909,298.17 23,454.75 9 116 1/11/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
111 NY 11030 2,893,530.00 22,216.33 8.46 80 1/1/07 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
112 MD 21229 2,838,272.19 23,425.70 8.6 237 2/1/20 237 30/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
113 CA 91208 2,831,469.38 22,382.87 8.77 114 11/1/09 354 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
114 IN 46750 2,794,260.00 22,147.71 8.81 116 1/1/10 356 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
115 CA 92806 2,639,552.91 19,741.15 8.16 53 10/1/04 353 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
116 FL 34689 2,594,239.00 19,002.18 7.93 112 9/1/09 352 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
117 NY 10566 2,593,042.52 21,908.20 9.05 81 2/1/07 297 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
118 TX 78681 2,502,524.96 20,213.01 8.43 110 7/1/09 290 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
119 NY 13748 2,488,898.75 20,113.83 8.49 115 12/1/09 295 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
121 PA 17112 2,400,000.00 20,526.20 8.94 119 4/1/10 276 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
122 TX 77036 2,380,810.34 19,325.45 8.5 111 8/6/09 291 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
123 NH 3301 2,372,822.00 18,794.68 8.17 48 5/1/04 288 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
124 NY 11230 2,345,934.75 18,537.83 8.78 57 2/1/05 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
125 SC 29205 2,323,000.00 17,122.45 8.845 116 1/11/10 0 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
126 TN 37813 2,290,861.99 17,085.49 8.13 113 10/1/09 353 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
127 FL 32926 2,288,609.99 17,279.13 8.25 111 8/6/09 351 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
128 OR 97051 2,286,783.00 16,892.62 8.01 110 7/11/09 350 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
129 CT 6082 2,276,074.14 18,867.99 8.65 237 2/1/20 237 30/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
130 AZ 85213 2,246,926.00 17,035.49 8.3 112 9/1/09 352 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
131 CT 6489 2,245,460.71 17,902.01 8.875 116 1/11/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
132 FL 33138 2,204,513.45 16,866.67 8.39 110 7/1/09 350 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
133 NY 10003 2,197,044.75 19,412.83 9.625 118 3/11/10 298 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
134 TX 77080 2,190,968.57 17,111.37 8.625 112 9/11/09 352 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
135 SC 29520 2,096,329.64 16,490.72 8.73 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
136 NY 10022 1,996,770.45 16,470.06 8.77 118 3/11/10 298 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
137 AZ 85220 1,885,403.00 13,441.55 7.62 108 5/11/09 348 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
138 TX 78025 1,791,382.00 13,232.87 8.02 112 9/1/09 352 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
139 NJ 8108 1,788,927.90 12,895.42 7.75 110 7/1/09 350 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
140 OH 44233 1,780,080.92 14,089.73 8.71 237 2/1/20 268 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
142 GA 30635 1,589,356.42 13,540.51 8.18 237 2/1/20 237 30/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
144 NY 10009 1,495,621.28 11,940.05 8.88 114 11/11/09 354 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
145 AZ 85306 1,494,938.10 11,332.33 8.31 114 11/1/09 354 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
146 MA 2703 1,493,523.00 11,459.37 8.43 112 9/1/09 352 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
147 FL 32299 1,489,924.20 12,459.80 8.875 112 9/11/09 292 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
148 SC 29223 1,442,587.85 11,087.65 8.44 110 7/1/09 350 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
149 WA 99206 1,397,008.82 10,904.00 8.64 116 1/1/10 356 Act/360 0.1222
------------------------------------------------------------------------------------------------------------------------------------
151 FL 32112 1,318,759.65 10,280.92 8.64 118 3/11/10 358 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
152 TX 77506 1,316,343.68 10,693.42 8.5 110 7/1/09 290 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
153 CT 6451 1,316,359.76 9,926.00 8.26 115 12/11/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
154 CT 6451 1,316,359.76 9,926.00 8.26 115 12/11/09 355 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
155 AZ 85220 1,295,569.00 9,784.75 8.27 114 11/1/09 354 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
156 NH 3038 1,274,603.00 10,938.53 8.08 108 5/11/09 228 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
157 CA 90049 1,246,764.30 10,704.77 9.25 117 2/11/10 297 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
158 TX 77009 1,243,518.25 10,276.80 8.75 114 11/11/09 294 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
159 TX 77055 1,196,258.83 9,333.48 8.625 114 11/11/09 354 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
161 CT 6053 1,115,990.99 8,272.88 8.07 114 11/1/09 354 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
162 WA 98004 1,097,650.00 8,567.43 8.64 116 1/1/10 356 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
163 NJ 8530 1,044,555.33 8,632.51 8.75 114 11/11/09 294 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
165 PA 16508 1,018,019.67 8,229.18 9.03 116 1/11/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
166 FL 33765 997,855.67 7,777.90 8.625 116 1/11/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
167 TX 77306 992,198.50 8,136.68 8.625 111 8/11/09 291 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
168 TX 77530 991,222.69 8,052.27 8.5 110 7/1/09 290 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
169 TX 77028 933,227.32 7,607.47 9.125 116 1/6/10 356 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
170 PA 19152 890,456.92 7,036.49 8.78 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
171 NJ 8109 840,543.42 6,642.07 8.78 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
172 FL 34689 836,174.00 6,292.93 8.22 112 9/1/09 352 Act/360 0.1272
------------------------------------------------------------------------------------------------------------------------------------
173 NY 14481 821,686.55 6,923.37 9 115 12/11/09 295 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
174 NY 10573 796,325.32 6,920.19 9.375 114 11/11/09 294 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
175 FL 32299 794,626.23 6,645.23 8.875 112 9/11/09 292 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
176 PA 19104 771,410.00 5,959.08 8.5 111 8/11/09 351 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
177 TX 77506 699,223.95 5,617.59 8.375 111 8/11/09 291 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
178 FL 33613 697,561.17 5,444.53 8.625 113 10/11/09 353 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
179 PA 19104 696,757.48 5,382.39 8.5 111 8/11/09 351 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
180 PA 19143 646,958.13 5,113.55 8.75 110 7/1/09 350 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
181 NJ 8068 619,076.40 5,213.30 9.5 117 2/11/10 357 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
182 PA 19104 599,211.38 4,628.86 8.5 111 8/11/09 351 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
183 TX 77026 597,949.40 4,994.16 8.9 116 1/11/10 296 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
184 FL 33916 596,962.17 4,983.92 8.875 114 11/11/09 294 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
185 NY 13501 499,668.08 4,295.77 9.75 118 3/11/10 358 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
186 TX 78154 498,758.59 4,368.48 9.5 117 2/11/10 297 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
188 NJ 7304 410,155.51 3,204.49 8.625 111 8/11/09 351 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
189 NJ 7304 335,491.29 2,621.15 8.625 111 8/11/09 351 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
190 NJ 7307 298,656.90 2,333.37 8.625 111 8/11/09 351 Act/360 0.1022
------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
---------------------------------------------------------------------------------------------------------
MORTGAGE Mortgage Secured by ARD Anticipated Credit Lease Loan
LOAN Ground Loan Letter of Mortgage Repayment (Tenant, Guarantor
NUMBER Lease? Seller Defeasance Credit Loan Date or Rated party)
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1 Yes WDR Yes 8/11/29
---------------------------------------------------------------------------------------------------------
2 WDR Yes Yes 12/11/29
---------------------------------------------------------------------------------------------------------
3 WDR Yes 12/11/29
---------------------------------------------------------------------------------------------------------
4 LB Defeasance Yes 12/1/29
---------------------------------------------------------------------------------------------------------
5 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
6 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
7 Yes WDR Defeasance Yes 10/6/29
---------------------------------------------------------------------------------------------------------
8 WDR Defeasance Yes 2/11/30
---------------------------------------------------------------------------------------------------------
9 WDR Defeasance Yes 1/11/30
---------------------------------------------------------------------------------------------------------
10 WDR Defeasance Yes 1/11/30
---------------------------------------------------------------------------------------------------------
11 WDR Defeasance Yes 2/11/30
---------------------------------------------------------------------------------------------------------
12 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
13 WDR Defeasance Yes 12/11/29
---------------------------------------------------------------------------------------------------------
14 WDR Defeasance Yes 10/6/29
---------------------------------------------------------------------------------------------------------
15 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
17 LB Defeasance No 0/0/00 CTL (Tenant - Stop &
Shop, Guarantor -
Koninklijke Ahold N.V.)
---------------------------------------------------------------------------------------------------------
18 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
19 WDR Defeasance Yes 1/11/30
---------------------------------------------------------------------------------------------------------
20 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
21 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
22 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
23 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
24 WDR Defeasance Yes 10/6/29
---------------------------------------------------------------------------------------------------------
25 Yes LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
26 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
27 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
28 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
29 WDR Defeasance Yes 2/6/30
---------------------------------------------------------------------------------------------------------
30 LB Defeasance Yes 1/1/30
---------------------------------------------------------------------------------------------------------
31 WDR Defeasance Yes 2/11/30
---------------------------------------------------------------------------------------------------------
32 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
33 LB Defeasance Yes 1/1/30
---------------------------------------------------------------------------------------------------------
34 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
35 WDR Defeasance Yes 2/11/30
---------------------------------------------------------------------------------------------------------
36 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
37 WDR Defeasance Yes 2/11/10
---------------------------------------------------------------------------------------------------------
38 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
39 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
40 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
41 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
43 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
44 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
45 WDR Defeasance Yes 1/11/30
---------------------------------------------------------------------------------------------------------
46 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
47 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
48 WDR Defeasance Yes 0/0/00
---------------------------------------------------------------------------------------------------------
49 LB Defeasance No 0/0/00 CTL (Tenant - BellSouth
Telecommunications, Inc,
Rated Party - BellSouth
Telecommunications, Inc.)
---------------------------------------------------------------------------------------------------------
50 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
51 WDR Defeasance Yes 2/11/30
---------------------------------------------------------------------------------------------------------
52 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
53 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
54 WDR Defeasance Yes 1/11/30
---------------------------------------------------------------------------------------------------------
55 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
56 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
57 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
58 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
59 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
61 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
62 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
63 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
64 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
67 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
68 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
70 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
71 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
72 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
73 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
74 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
75 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
76 LB No 0/0/00
---------------------------------------------------------------------------------------------------------
77 Yes WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
78 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
79 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
80 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
82 WDR Defeasance Yes 2/11/30
---------------------------------------------------------------------------------------------------------
83 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
84 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
85 WDR Defeasance Yes 2/11/30
---------------------------------------------------------------------------------------------------------
86 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
87 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
88 Yes LB Defeasance Yes 1/1/30
---------------------------------------------------------------------------------------------------------
89 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
91 WDR Defeasance Yes 2/11/30
---------------------------------------------------------------------------------------------------------
92 WDR Defeasance Yes 1/11/30
---------------------------------------------------------------------------------------------------------
93 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
94 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
95 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
96 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
97 WDR Defeasance Yes 0/0/00
---------------------------------------------------------------------------------------------------------
98 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
99 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
100 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
101 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
103 LB Defeasance No 0/0/00 CTL (Tenant - Walgreens,
Rated Party - Walgreens)
---------------------------------------------------------------------------------------------------------
104 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
106 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
107 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
108 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
109 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
110 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
111 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
112 LB Defeasance No 0/0/00 CTL (Tenant - CVS,
Guarantor - CVS
Corporation)
---------------------------------------------------------------------------------------------------------
113 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
114 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
115 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
116 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
117 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
118 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
119 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
121 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
122 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
123 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
124 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
125 WDR Defeasance Yes 0/0/00
---------------------------------------------------------------------------------------------------------
126 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
127 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
128 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
129 LB Defeasance No 0/0/00 CTL (Tenant - CVS,
Guarantor - CVS
Corporation)
---------------------------------------------------------------------------------------------------------
130 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
131 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
132 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
133 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
134 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
135 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
136 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
137 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
138 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
139 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
140 LB Defeasance No 0/0/00 CTL (Tenant - CVS,
Guarantor - CVS
Corporation)
---------------------------------------------------------------------------------------------------------
142 LB Defeasance No 0/0/00 CTL (Tenant - CVS,
Guarantor - CVS
Corporation)
---------------------------------------------------------------------------------------------------------
144 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
145 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
146 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
147 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
148 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
149 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
151 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
152 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
153 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
154 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
155 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
156 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
157 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
158 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
159 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
161 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
162 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
163 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
165 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
166 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
167 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
168 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
169 WDR Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
170 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
171 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
172 LB Defeasance No 0/0/00
---------------------------------------------------------------------------------------------------------
173 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
174 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
175 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
176 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
177 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
178 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
179 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
180 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
181 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
182 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
183 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
184 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
185 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
186 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
188 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
189 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
190 WDR No 0/0/00
---------------------------------------------------------------------------------------------------------
<CAPTION>
------------------------------------------------------------------------------------------------------------------
MORTGAGE
LOAN Lockbox Lease Residual
NUMBER Cross Collateralized Account Enhancement Policy Value Insurance
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 Springing
------------------------------------------------------------------------------------------------------------------
2 Hard
------------------------------------------------------------------------------------------------------------------
3 Yes - Westfield Hard
America, Inc.
------------------------------------------------------------------------------------------------------------------
4 Hard
------------------------------------------------------------------------------------------------------------------
5 Springing
------------------------------------------------------------------------------------------------------------------
6 Springing
------------------------------------------------------------------------------------------------------------------
7 Yes - Plaza Hard
Investments, L.L.C.
------------------------------------------------------------------------------------------------------------------
8 Springing
------------------------------------------------------------------------------------------------------------------
9 Springing
------------------------------------------------------------------------------------------------------------------
10 Springing
------------------------------------------------------------------------------------------------------------------
11 Springing
------------------------------------------------------------------------------------------------------------------
12 Springing
------------------------------------------------------------------------------------------------------------------
13 Modified
------------------------------------------------------------------------------------------------------------------
14 Yes - Plaza Hard
Investments, L.L.C.
------------------------------------------------------------------------------------------------------------------
15 Springing
------------------------------------------------------------------------------------------------------------------
17 Hard Yes
------------------------------------------------------------------------------------------------------------------
18 None
------------------------------------------------------------------------------------------------------------------
19 Springing
------------------------------------------------------------------------------------------------------------------
20 Springing
------------------------------------------------------------------------------------------------------------------
21 Springing
------------------------------------------------------------------------------------------------------------------
22 Springing
------------------------------------------------------------------------------------------------------------------
23 None
------------------------------------------------------------------------------------------------------------------
24 Yes - Plaza Hard
Investments, L.L.C.
------------------------------------------------------------------------------------------------------------------
25 Springing
------------------------------------------------------------------------------------------------------------------
26 Springing
------------------------------------------------------------------------------------------------------------------
27 Springing
------------------------------------------------------------------------------------------------------------------
28 Springing
------------------------------------------------------------------------------------------------------------------
29 Springing
------------------------------------------------------------------------------------------------------------------
30 Yes - Littlefield Soft
------------------------------------------------------------------------------------------------------------------
31 Springing
------------------------------------------------------------------------------------------------------------------
32 Springing
------------------------------------------------------------------------------------------------------------------
33 Yes - Littlefield Soft
------------------------------------------------------------------------------------------------------------------
34 None
------------------------------------------------------------------------------------------------------------------
35 Springing
------------------------------------------------------------------------------------------------------------------
36 None
------------------------------------------------------------------------------------------------------------------
37 Springing
------------------------------------------------------------------------------------------------------------------
38 None
------------------------------------------------------------------------------------------------------------------
39 Springing
------------------------------------------------------------------------------------------------------------------
40 None
------------------------------------------------------------------------------------------------------------------
41 None
------------------------------------------------------------------------------------------------------------------
43 Springing
------------------------------------------------------------------------------------------------------------------
44 None
------------------------------------------------------------------------------------------------------------------
45 Springing
------------------------------------------------------------------------------------------------------------------
46 Springing
------------------------------------------------------------------------------------------------------------------
47 None
------------------------------------------------------------------------------------------------------------------
48 Hard
------------------------------------------------------------------------------------------------------------------
49 Hard No Yes (RVI America Insurance
Company-Policy #: 01-01-20-0408)
------------------------------------------------------------------------------------------------------------------
50 Springing
------------------------------------------------------------------------------------------------------------------
51 Springing
------------------------------------------------------------------------------------------------------------------
52 Springing
------------------------------------------------------------------------------------------------------------------
53 None
------------------------------------------------------------------------------------------------------------------
54 Springing
------------------------------------------------------------------------------------------------------------------
55 None
------------------------------------------------------------------------------------------------------------------
56 Springing
------------------------------------------------------------------------------------------------------------------
57 Springing
------------------------------------------------------------------------------------------------------------------
58 Springing
------------------------------------------------------------------------------------------------------------------
59 Springing
------------------------------------------------------------------------------------------------------------------
61 None
------------------------------------------------------------------------------------------------------------------
62 None
------------------------------------------------------------------------------------------------------------------
63 None
------------------------------------------------------------------------------------------------------------------
64 Springing
------------------------------------------------------------------------------------------------------------------
67 None
------------------------------------------------------------------------------------------------------------------
68 Springing
------------------------------------------------------------------------------------------------------------------
70 None
------------------------------------------------------------------------------------------------------------------
71 Springing
------------------------------------------------------------------------------------------------------------------
72 None
------------------------------------------------------------------------------------------------------------------
73 Hard
------------------------------------------------------------------------------------------------------------------
74 None
------------------------------------------------------------------------------------------------------------------
75 Springing
------------------------------------------------------------------------------------------------------------------
76 None
------------------------------------------------------------------------------------------------------------------
77 None
------------------------------------------------------------------------------------------------------------------
78 Springing
------------------------------------------------------------------------------------------------------------------
79 Yes - Hersha Springing
------------------------------------------------------------------------------------------------------------------
80 None
------------------------------------------------------------------------------------------------------------------
82 Springing
------------------------------------------------------------------------------------------------------------------
83 Yes - Chesterfield & Springing
Wallace
------------------------------------------------------------------------------------------------------------------
84 None
------------------------------------------------------------------------------------------------------------------
85 Springing
------------------------------------------------------------------------------------------------------------------
86 None
------------------------------------------------------------------------------------------------------------------
87 None
------------------------------------------------------------------------------------------------------------------
88 Yes - Littlefield Soft
------------------------------------------------------------------------------------------------------------------
89 Springing
------------------------------------------------------------------------------------------------------------------
91 Springing
------------------------------------------------------------------------------------------------------------------
92 Springing
------------------------------------------------------------------------------------------------------------------
93 None
------------------------------------------------------------------------------------------------------------------
94 Springing
------------------------------------------------------------------------------------------------------------------
95 Springing
------------------------------------------------------------------------------------------------------------------
96 None
------------------------------------------------------------------------------------------------------------------
97 Hard
------------------------------------------------------------------------------------------------------------------
98 Springing
------------------------------------------------------------------------------------------------------------------
99 Yes - Hersha Springing
------------------------------------------------------------------------------------------------------------------
100 Springing
------------------------------------------------------------------------------------------------------------------
101 Springing
------------------------------------------------------------------------------------------------------------------
103 Hard Yes
------------------------------------------------------------------------------------------------------------------
104 None
------------------------------------------------------------------------------------------------------------------
106 Springing
------------------------------------------------------------------------------------------------------------------
107 Springing
------------------------------------------------------------------------------------------------------------------
108 None
------------------------------------------------------------------------------------------------------------------
109 None
------------------------------------------------------------------------------------------------------------------
110 None
------------------------------------------------------------------------------------------------------------------
111 Springing
------------------------------------------------------------------------------------------------------------------
112 Hard Yes
------------------------------------------------------------------------------------------------------------------
113 Springing
------------------------------------------------------------------------------------------------------------------
114 None
------------------------------------------------------------------------------------------------------------------
115 Springing
------------------------------------------------------------------------------------------------------------------
116 None
------------------------------------------------------------------------------------------------------------------
117 Springing
------------------------------------------------------------------------------------------------------------------
118 None
------------------------------------------------------------------------------------------------------------------
119 Springing
------------------------------------------------------------------------------------------------------------------
121 Yes - Hersha Springing
------------------------------------------------------------------------------------------------------------------
122 Springing
------------------------------------------------------------------------------------------------------------------
123 Springing
------------------------------------------------------------------------------------------------------------------
124 Springing
------------------------------------------------------------------------------------------------------------------
125 Hard
------------------------------------------------------------------------------------------------------------------
126 Springing
------------------------------------------------------------------------------------------------------------------
127 Springing
------------------------------------------------------------------------------------------------------------------
128 None
------------------------------------------------------------------------------------------------------------------
129 Hard Yes
------------------------------------------------------------------------------------------------------------------
130 None
------------------------------------------------------------------------------------------------------------------
131 None
------------------------------------------------------------------------------------------------------------------
132 Springing
------------------------------------------------------------------------------------------------------------------
133 Hard
------------------------------------------------------------------------------------------------------------------
134 None
------------------------------------------------------------------------------------------------------------------
135 Yes - Chesterfield & Springing
Wallace
------------------------------------------------------------------------------------------------------------------
136 None
------------------------------------------------------------------------------------------------------------------
137 None
------------------------------------------------------------------------------------------------------------------
138 None
------------------------------------------------------------------------------------------------------------------
139 None
------------------------------------------------------------------------------------------------------------------
140 Hard Yes Yes (RVI America Insurance
Company-Policy #: 01-01-20-0415)
------------------------------------------------------------------------------------------------------------------
142 Hard Yes
------------------------------------------------------------------------------------------------------------------
144 None
------------------------------------------------------------------------------------------------------------------
145 None
------------------------------------------------------------------------------------------------------------------
146 None
------------------------------------------------------------------------------------------------------------------
147 Yes - Alfred H. Wolf, JrNone
------------------------------------------------------------------------------------------------------------------
148 None
------------------------------------------------------------------------------------------------------------------
149 Springing
------------------------------------------------------------------------------------------------------------------
151 Springing
------------------------------------------------------------------------------------------------------------------
152 None
------------------------------------------------------------------------------------------------------------------
153 None
------------------------------------------------------------------------------------------------------------------
154 None
------------------------------------------------------------------------------------------------------------------
155 None
------------------------------------------------------------------------------------------------------------------
156 None
------------------------------------------------------------------------------------------------------------------
157 None
------------------------------------------------------------------------------------------------------------------
158 None
------------------------------------------------------------------------------------------------------------------
159 None
------------------------------------------------------------------------------------------------------------------
161 Springing
------------------------------------------------------------------------------------------------------------------
162 None
------------------------------------------------------------------------------------------------------------------
163 None
------------------------------------------------------------------------------------------------------------------
165 None
------------------------------------------------------------------------------------------------------------------
166 None
------------------------------------------------------------------------------------------------------------------
167 None
------------------------------------------------------------------------------------------------------------------
168 None
------------------------------------------------------------------------------------------------------------------
169 None
------------------------------------------------------------------------------------------------------------------
170 None
------------------------------------------------------------------------------------------------------------------
171 None
------------------------------------------------------------------------------------------------------------------
172 None
------------------------------------------------------------------------------------------------------------------
173 None
------------------------------------------------------------------------------------------------------------------
174 None
------------------------------------------------------------------------------------------------------------------
175 Yes - Alfred H. Wolf, JrNone
------------------------------------------------------------------------------------------------------------------
176 None
------------------------------------------------------------------------------------------------------------------
177 None
------------------------------------------------------------------------------------------------------------------
178 None
------------------------------------------------------------------------------------------------------------------
179 None
------------------------------------------------------------------------------------------------------------------
180 None
------------------------------------------------------------------------------------------------------------------
181 None
------------------------------------------------------------------------------------------------------------------
182 None
------------------------------------------------------------------------------------------------------------------
183 None
------------------------------------------------------------------------------------------------------------------
184 None
------------------------------------------------------------------------------------------------------------------
185 None
------------------------------------------------------------------------------------------------------------------
186 None
------------------------------------------------------------------------------------------------------------------
188 Yes - Jersey None
------------------------------------------------------------------------------------------------------------------
189 Yes - Jersey None
------------------------------------------------------------------------------------------------------------------
190 Yes - Jersey None
------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
LASALLE BANK N.A.
ASSET-BACKED SECURITIES
TRUST SERVICES
CUSTODIAN'S REPORT OF
COLLATERAL HOLDINGS
(DOCUMENTS WITH EXCEPTIONS ONLY)
DEPOSITOR: LEHMAN BROTHERS
POOL NAME:
Pool Type: COMM MTG BACKED
Questions concening information contained in this report should be directed to
the person(s) identified below.
Collateral Administrator: Hanna Woo, Collateral Administrator
Phone No.: 312-904-0345
Email Address: [email protected]
Trust Administrator: Michael Dombai, Trust Administrator
Phone No.: 312-904-8847
Email Address: [email protected]
REPORT PARAMETERS:
Primary Sort: LaSalle Loan No.
Report Run By: Woo
Run Date: May 17, 2000
Run Time: 09:56
Report Page No. 1
<PAGE>
<TABLE>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 134-0250-000 LOAN INFORMATION Report XRef#: 1
----------------
LOAN ID: 134-0250-000
BORROWER: MERCHANTS VILLAGE, LLC
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Prev Loan ID: SH14 Property: MERCHANTS VILLAGE SHOPPING CENTER Note Amount: $3,150,000.00 Counsel: STROOCK STROOCK
Control Ref: 0096 City, St.: MARTINEZ, GA Note Date: 11/24/99 Misc. Info. #1:LBH/ELENA MARGQUEZ
Group: C3 Maturity:12/01/09 Misc. Info. #2: MERCHANTS VIL
-------------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -LEHMAN BROTHERS HOLDINGS INC. to TRUST
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 134-0250-000 (1)
</TABLE>
Report Page No. 2
<PAGE>
<TABLE>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 134-0255-000 LOAN INFORMATION Report XRef#: 2
----------------
LOAN ID: 134-0255-000
BORROWER: FX PROPERTIES, LTD
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Prev Loan ID: SH75 Property: FEDERAL EXPRESS BUILDINGS Note Amount: $3,112,500.00 Counsel: MORRIS MANNING
Control Ref: 0097 Note Date: 12/29/99 Misc. Info. #1: LEGG/GREG GAUGLER
Group: C3 Maturity: 01/01/10 Misc. Info. #2: FEDERAL EXPRS
--------------------------------------------------------------------------
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -LEHMAN BROTHERS HOLDINGS INC. to TRUST
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 134-0255-000 (1)
</TABLE>
Report Page No.3
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0023-000 LOAN INFORMATION Report XRef#: 3
----------------
LOAN ID: 321-0023-000
BORROWER: H. RAY ADAMS
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: JANWOOD APARTMENTS Note Amount: $705,000.00 Counsel: KRONISH LIEB WEINER
Control Ref: 0161 City, St.: PASADENA, TX Note Date: 07/13/99 Misc. Info. #1: KRONISH LIEB WEINE
Group: C3 Maturity: 08/11/09 Misc. Info. #2: H. RAY ADAMS
1st Pmt: 09/11/99
--------------------------------------------------------------------------
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
PROMISSORY NOTE - H. RAY ADAMS to WARBURG DILLON READ
Document is ORIGINAL (RECORDING NOT REQUIRED).
EXCEPTION --> INCOMPLETE/MISSING DATES
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID:321-0023-000 (1)
</TABLE>
Report Page No.4
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0033-000 LOAN INFORMATION Report XRef#: 4
----------------
LOAN ID: 321-0033-000
BORROWER: 11211 S. POST OAK, L.P.
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: 11211 S. POST OAK Note Amount: $1,000,000.00 Counsel: KRONISH LIEB WEINER
Control Ref: 0151 Note Date: 08/03/99 Misc. Info. #1: KRONISH LIEB
Group: C3 Maturity: 08/11/09 Misc. Info. #2: POST OAK
1st Pmt: 09/11/99
--------------------------------------------------------------------------
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
PROMISSORY NOTE - 11211 S. POST OAK to WARBURG DILLON READ
Document is ORIGINAL (RECORDING NOT REQUIRED).
EXCEPTION --> INCOMPLETE/MISSING PRINCIPAL AND INTEREST AMOUNT
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID 321-0033-000: (1)
</TABLE>
Report Page No.5
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0061-000 LOAN INFORMATION Report XRef#: 5
----------------
LOAN ID: 321-0061-000
BORROWER: DD & R PROPERTIES, INC.
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: PARK VILLA APARTMENTS Note Amount: $600,000.00 Counsel: ATESHOGLOU KAVOURIAS
Control Ref: 0168 City, St.: FORT MYERS, FL Note Date: 10/22/99
Group: C3 Maturity: 11/11/09 Misc. Info. #2: PARK VILLA
1st Pmt: 12/11/99
--------------------------------------------------------------------------
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" - UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID 321-0061-000: (1)
</TABLE>
Report Page No.6
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0076-120 LOAN INFORMATION Report XRef#: 6
----------------
LOAN ID: 321-0076-120
BORROWER: DOWNTOWN PLAZA LLC & EASTLAND SHOPP
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: NOTE A MASTER FILE Note Amount: $99,000,000.00 Counsel: CADWALADER WICKERSHAM
Control Ref: 0003 City, St.: CA Note Date: 05/08/00
Group: C3
Loan Memo: RE: - MASTER FILE IS 321-0076-000 and 321-0076-100
--------------------------------------------------------------------------
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" - UBS PRINCIPAL FINANCE LLC to TRUST
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID 321-0076-120: (1)
</TABLE>
Report Page No.7
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0077-000 LOAN INFORMATION Report XRef#: 7
----------------
LOAN ID: 321-0077-000
BORROWER: CHAPEL WOOD ASSOCIATES
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: CHAPEL WOOD APARTMENTS Note Amount: $5,500,000.00 Counsel: ORRICK HERRINGTON
Control Ref: 0052 City, St.: CAPITOL, MD Note Date: 12/15/99
Group: C3 Maturity: 01/11/30 Misc. Info. #2: CHAPEL WOOD
1st Pmt: 02/11/00
--------------------------------------------------------------------------
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" - UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID:321-0077-000 (1)
</TABLE>
Report Page No.8
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0078-000 LOAN INFORMATION Report XRef#: 8
----------------
LOAN ID: 321-0078-000
BORROWER: TREELINE GANNETT LLC
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: 2 & 4 GANNETT STREET Note Amount: $20,500,000.00 Counsel: ORRICK HERRINGTON
Control Ref: 0009 City, St.: WHITE PLAINS, NY
Group: C3 Maturity: 01/11/30 Misc. Info. #2: 2 & 4 GANNETT
1st Pmt: 02/11/00
--------------------------------------------------------------------------
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID 321-0078-000: (1)
</TABLE>
Report Page No.9
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0080-000 LOAN INFORMATION Report XRef#: 9
----------------
LOAN ID: 321-0080-000
BORROWER: EAGLE ROCK PLAZA LLC
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: EAGLE ROCK MALL Note Amount: $16,840,000.00 Counsel: CADWALADER WICKERSHAM
Control Ref: 0013 City, St.: LOS ANGELES, CA Note Date: 12/09/99
Group: C3 Misc. Info. #2: EAGLE ROCK
--------------------------------------------------------------------------
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" - UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID:321-0080-000 (1)
</TABLE>
Report Page No.10
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0085-000 LOAN INFORMATION Report XRef#: 10
----------------
LOAN ID: 321-0085-000
BORROWER: CITIZENS ASSOCIATES, LTD.
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: CITIZENS TRUST Note Amount: $6,900,000.00 Counsel: ORRICK HERRINGTON
Control Ref: 0043 City, St.: ATLANTA, GA Note Date: 12/22/99
Group: C3 Maturity: 01/11/30 Misc. Info. #2: CITIZENS TRUST
1st Pmt: 02/11/00
--------------------------------------------------------------------------
DOCUMENTS
---------
DOCUMENT ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" - UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID:321-0085-000 (1)
</TABLE>
Report Page No.11
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0086-000 LOAN INFORMATION Report XRef#: 11
----------------
LOAN ID: 321-0086-000
BORROWER: REISTERSTOWN SQUARE ASSOCIATES, LLC
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: REISTERSTOWN SQUARE APARTMENTS Note Amount: $13,500,000.00 Counsel: ORRICK HERRINGTON
Control Ref: 0018 City, St.: BALTIMORE, MD Note Date: 12/23/99
Group: C3 Maturity: 01/11/30 Misc. Info. #2: REISTERSTOWN
1st Pmt: 02/11/00
--------------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" - UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID 321-0086-000: (1)
</TABLE>
Report Page No.12
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0092-000 LOAN INFORMATION Report XRef#: 12
----------------
LOAN ID: 321-0092-000
BORROWER: LACROIX COURT APARTMENTS, LLC
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: LACROIX COURT APARTMENTS Note Amount: $3,500,000.00 Counsel: SCHULTE ROTH
Control Ref: 0084 Note Date: 12/30/99 Misc. Info. #1: DRY
Group: C3 Maturity: 01/11/30 Misc. Info. #2: LACROIX COURT
1st Pmt: 02/11/00
--------------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" - UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID:321-0092-000 (1)
</TABLE>
Report Page No.13
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0095-000 LOAN INFORMATION Report XRef#: 13
----------------
LOAN ID: 321-0095-000
BORROWER: QUINCY BUCKLEY PARTNERS L.P.
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: VALLEY PLAZA SHOPPING CENTER Note Amount: $3,354,000.00 Counsel: ORRICK HERRINGTON
Control Ref: 0089 Note Date: 12/30/99
Group: C3 Maturity: 01/11/30 Misc. Info. #2: VALLEY PLAZA
1st Pmt: 02/11/00
--------------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" - UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID:321-0095-000 (1)
</TABLE>
Report Page No.14
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0096-000 LOAN INFORMATION Report XRef#: 14
----------------
LOAN ID: 321-0096-000
BORROWER: WHITNEY PARTNERS L.P.
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: THE WHITNEY HOTEL Note Amount: $2,323,000.00 Counsel: ORRICK HERRINGTON
Control Ref: 0114 Note Date: 12/30/99
Group: C3 Maturity: 01/11/30 Misc. Info. #2: WHITNEY HOTEL
1st Pmt: 02/11/00
----------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
</TABLE>
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 321-0096-000 (1)
Report Page No. 15
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0097-000 LOAN INFORMATION Report XRef#: 15
----------------
LOAN ID: 321-0097-000
BORROWER: MOORESVILLE PARTNERS LP
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: MOORESVILLE FESTIVAL Note Amount: $6,516,000.00 Counsel: ORRICK HERRINGTON
SHOPPING CENTER Note Date: 12/30/99
Control Ref: 0046 Maturity: 01/11/30 Misc. Info. #2: MOORESVILLE
Group: C3 lst Pmt: 02/11/00
-------------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 321-0097-000 (1)
</TABLE>
Report Page No. 16
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0103-000 LOAN INFORMATION Report XRef#: 16
----------------
LOAN ID: 321-0103-000
BORROWER: 2005 L.L.C.
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: NABISCO WAREHOUSE Note Amount: $8,725,000.00 Counsel: ORRICK HERRINGTON
Control Ref: 0036 Note Date: 01/26/0 Misc. Info. #1: COOK COUNTY
Group: C3 Maturity: 02/11/30 Misc. Info. #2: 2005 L.L.C.
1st Pmt: 03/11/00
---------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
</TABLE>
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 321-0103-000 (1)
Report Page No. 17
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0105-000 LOAN INFORMATION Report XRef#: 17
----------------
LOAN ID: 321-0105-000
BORROWER: ROYAL EQUITIES, LLC
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: 151 WEST 25TH STREET Note Amount: $3,500,000.00 Counsel: ORRICK HERRINGTON
Control Ref: 0083 City, St.: NEW YORK, NY Note Date: 02/02/00
Group: C3 Maturity: 02/11/30 Misc. Info. #2: 151 WEST 25TH
1st Pmt: 03/11/00
------------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
</TABLE>
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 321-0105-000 (1)
Report Page No. 18
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0111-000 LOAN INFORMATION Report XRef#: 18
----------------
LOAN ID: 321-0111-000
BORROWER: CENTRAL FOREST S/C PARTNERS, LTD.
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: CENTRAL FOREST SHOPPING Note Amount: $9,600,000.00 Counsel: ORRICK HERRINGTON
CENTER Note Date: 01/31/00
Control Ref: 0030 Maturity: 02/11/30 Misc. Info. #2: CENTRAL FOREST
Group: C3 1st Pmt: 03/11/00
------------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
</TABLE>
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 321-0111-000 (1)
Report Page No. 19
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0112-000 LOAN INFORMATION Report XRef#: 19
----------------
LOAN ID: 321-0112-000
BORROWER: TOWNE NORTH S/C PARTNERS, LTD.
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: TOWNE NORTH SHOPPING Note Amount: $5,900,000.00 Counsel: ORRICK HERRINGTON
CENTER Note Date: 01/31/00
Control Ref: 0049 Maturity: 02/11/30 Misc. Info. #2: TOWNE NORTH
Group: C3 1ST Pmt: 03/11/00
------------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
</TABLE>
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 321-0112-000 (1)
Report Page No. 20
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0113-000 LOAN INFORMATION Report XRef#: 20
----------------
LOAN ID: 321-0113-000
BORROWER: STANTON PLAZA S/C PARTNERS, LTD.
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: STANTON OAKS SHOPPING Note Amount: $3,750,000.00 Counsel: ORRICK HERRINGTON
CENTER Note Date: 01/31/00
Control Ref: 0078 Maturity: 02/11/30 Misc. Info. #2: STANTON OAKS
Group: C3 1st Pmt: 03/11/00
------------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
</TABLE>
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 321-0113-000 (1)
Report Page No. 21
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0115-000 LOAN INFORMATION Report XRef#: 21
----------------
LOAN ID: 321-0115-000
BORROWER: PRESTONWOOD MARKET SQUARE, LTD.
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: PEPPER SQUARE Note Amount: $17,900,000.00 Counsel: ORRICK HERRINGTON
Control Ref: 0011 Note Date: 01/31/00
Group: C3 Maturity: 02/11/30 Misc. Info. #2: PEPPER SQUARE
1st Pmt: 03/11/00
----------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
</TABLE>
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 321-0115-000 (1)
Report Page No. 22
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0121-000 LOAN INFORMATION Report XRef#: 22
----------------
BORROWER: FRANCMEN 35 LLC
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: 29 WEST 35TH STREET Note Amount: $8,845,000.00 Counsel: ORRICK HERRINGTON
Control Ref: 0034 City, St.: NEW YORK, NY
Group: C3 Maturity: 02/11/00 Misc. Info. #2: 29 WEST 35TH
1st Pmt: 03/11/00
----------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
</TABLE>
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 321-0121-000 (1)
Report Page No. 23
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0122-000 LOAN INFORMATION Report XRef#: 23
----------------
LOAN ID: 321-0122-000
BORROWER: PUTNAM CENTER - CRESCENT, LLC
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: SUPERVAL-CRESCENT Note Amount: $1,320,000.00 Counsel: KRONISH LIEB WEINER
Control Ref: 0137 City, St.: SANIBEL, FL Note Date: 02/16/00
Group: C3 Maturity: 03/11/10 Misc. Info. #2: SUPERVAL-CRESCENT
1ST Pmt: 04/11/00
-------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
</TABLE>
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 321-0122-000 (1)
Report Page No. 24
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 321-0145-000 LOAN INFORMATION Report XRef#: 24
----------------
LOAN ID: 321-0145-000
BORROWER: ANNAPOLIS SHOPPINGTOWN LLC
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Property: ANNAPOLIS MALL Note Amount: $123,031,572.14 Counsel: CADWALADER WICKERSHAM
Control Ref: 0002 City, St.: ANNAPOLIS, MD Note Date: 04/17/00
Group: C3 Maturity: 12/11/09 Misc. Info. #2: 2002 ANNAPOLIS
---------------------------------------------------------------------
Loan Memo: RE: Loan - Original loan was $144,380,000. Loan split into Note A and Note B. Note A remains in conduit.
Note B is securitized. Original promissory note and all docs. are located in securitized file.
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -UBS PRINCIPAL FINANCE to TRUST
Document is MISSING.
</TABLE>
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID: 321-0145-000 (1)
Report Page No. 25
<PAGE>
<TABLE>
<CAPTION>
CUSTODIAN'S REPORT OF
COLLATERAL DOCUMENTS
Issuer/Pool: 1011/401 ---------------------- Print Date: 05/17/00
Pool Name: (DOCUMENTS WITH EXCEPTIONS ONLY)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGIN RECORD FOR LOAN ID: 353-0069-000 LOAN INFORMATION Report XRef#: 25
----------------
LOAN ID: 353-0069-000
BORROWER: FOSHAY, INC.
IDENTIFICATION DATA PROPERTY DATA NOTE DATA MISC. DATA
------------------- ------------- --------- ----------
Prev Loan ID: 5153 Property: FOSHAY TOWER Note Amount: $10,700,000.00 Counsel: OPPENHEIMER WOLF
Control Ref: 0026 City, St.: MINNEAPOLIS, MN Note Date: 01/31/00 Misc. Info. #1: NMC/MARY SENKUS
Group: C3 Maturity: 02/01/10 Misc. Info. #2: FOSHAY TOWER
--------------------------------------------------------------------
DOCUMENTS
DOCUMENT --------- ADDITIONAL DOCUMENT INFORMATION (IF ANY)
-------- ----------------------------------------
DOCUMENT CONDITION
------------------
DEFICIENCY/EXCEPTION
--------------------
------------------------------------------------------------------------------------------------------------------------------------
ENDORSEMENT TO PROMISSORY NOTE "TO TRUSTEE" -LEHMAN BROTHERS BANK, FSB to TRUST
Document is MISSING.
</TABLE>
EXCEPTION --> INCOMPLETE/MISSING ENDORSEMENT(S)
--------------------------------------------------------------------------------
END RECORD FOR LOAN ID 353-0069-000: (1)
GRAND TOTAL ACTIVE ORIGINAL LOAN AMOUNT(S): $379,772,072.14
GRAND TOTAL OF ACTIVE RECORDS THIS REPORT: 25
Report Page No. 26
<PAGE>
SCHEDULE III
EXCEPTIONS TO REPRESENTATIONS
AND WARRANTIES OF THE DEPOSITOR
<PAGE>
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C3
SCHEDULE III-A (ENVIRONMENTAL SITE ASSESSMENT AGE GREATER THAN 12 MONTHS)
<TABLE>
<CAPTION>
CROSS ORIGINAL MATURITY OR
CONTROL COLLATERALIZED BALANCE ANTICIPATE CONTROL
NO. PROPERTY NAME CITY STATE GROUPS ($) REPAYMENT DATE NO.
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
93 UNOVA Industrial Building Troy MI 3,300,000 5/11/09 93
96 Merchant's Village Martinez GA 3,150,000 12/1/09 96
98 Santiago Parkside Estates Rialto CA 3,080,000 8/1/06 98
112 54 Regional Drive Concord NH 2,400,000 5/1/04 112
117 Crestwood Village MHP St. Helens OR 2,300,000 7/11/09 117
119 Deserama Mobile Ranch Mesa AZ 2,257,000 9/1/09 119
126 Apache Gardens Mobile Home Park Apache Junction AZ 1,900,000 5/11/09 126
133 Oakhill Family Park Attleboro MA 1,500,000 9/1/09 133
142 Bangs MHP Derry NH 1,300,000 5/11/09 142
146 Main Place Apartments New Britain CT 1,120,000 11/1/09 146
</TABLE>
<PAGE>
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C3
SCHEDULE III-B (CERTAIN EQUITY HOLDERS OF THE RELATED MORTGAGOR ARE KNOWN TO
HAVE INCURRED DEBT SECURED BY THEIR OWNERSHIP INTEREST IN THE RELATED MORTGAGOR)
<TABLE>
<CAPTION>
CROSS ORIGINAL MATURITY OR
CONTROL COLLATERALIZED BALANCE ANTICIPATE CONTROL
NO. PROPERTY NAME CITY STATE GROUPS ($) REPAYMENT DATE NO.
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
146 Main Place Apartments New Britain CT 1,120,000 11/1/09 146
</TABLE>
<PAGE>
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C3
SCHEDULE III-C (ENGINEERING ASSESSMENT AGE GREATER THAN 12 MONTHS)
<TABLE>
<CAPTION>
CROSS ORIGINAL MATURITY OR
CONTROL COLLATERALIZED BALANCE ANTICIPATE CONTROL
NO. PROPERTY NAME CITY STATE GROUPS ($) REPAYMENT DATE NO.
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
93 UNOVA Industrial Building Troy MI 3,300,000 5/11/09 93
96 Merchant's Village Martinez GA 3,150,000 12/1/09 96
98 Santiago Parkside Estates Rialto CA 3,080,000 8/1/06 98
112 54 Regional Drive Concord NH 2,400,000 5/1/04 112
117 Crestwood Village MHP St. Helens OR 2,300,000 7/11/09 117
119 Deserama Mobile Ranch Mesa AZ 2,257,000 9/1/09 119
126 Apache Gardens Mobile Home Park Apache Junction AZ 1,900,000 5/11/09 126
133 Oakhill Family Park Attleboro MA 1,500,000 9/1/09 133
142 Bangs MHP Derry NH 1,300,000 5/11/09 142
</TABLE>
<PAGE>
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C3
SCHEDULE III-D (MORTGAGE LOAN IS SECURED IN WHOLE OR MATERIAL PART BY THE
INTEREST OF THE RELATED MORTGAGOR AS LESSEE UNDER A GROUND LEASE)
<TABLE>
<CAPTION>
CROSS ORIGINAL MATURITY OR
CONTROL COLLATERALIZED BALANCE ANTICIPATE CONTROL
NO. PROPERTY NAME CITY STATE GROUPS ($) REPAYMENT DATE NO.
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
24 Best Western Carmel Mission Inn Carmel CA 11,400,000 12/1/2006 24
81 Littlefield Mall Austin TX Littlefield 3,675,000 1/1/2005 81
</TABLE>
<PAGE>
SCHEDULE III-E
EXCEPTIONS TO GROUND LEASE REPRESENTATIONS AND WARRANTIES
(SECTION 2.04(B) (XLVII))
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
CLAUSE LOAN/PROPERTY NAME EXCEPTION(S)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
(B) Littlefield Mall Contains no such provision.
----------------------------------------------------------------------------------------------------------------------------------
(B) Best Western Carmel Mission Inn The lease may be assigned to any purchaser at a foreclosure, subject to
lessor's prior written consent (which will not be unreasonably
withheld) OR to an assignee having (i) experience with comparable
hotels: (ii) no history of loan foreclosures; and (iii) net worth of
not less than $10,000,000.
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C3
SCHEDULE III-F (MORTGAGED PROPERTIES SERVED BY A NON-PUBLIC WATER SYSTEM)
<TABLE>
<CAPTION>
CROSS ORIGINAL MATURITY OR
CONTROL COLLATERALIZED BALANCE ANTICIPATE CONTROL
NO. PROPERTY NAME CITY STATE GROUPS ($) REPAYMENT DATE NO.
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
64 Foxcroft Village MHP Loch Sheldrake NY 4,150,000 3/1/05 64
104 Oakridge Estates,Decatur and Valley View MHPs Huntington IN 2,800,000 1/1/10 104
127 Ingram Oaks Ingram TX 1,800,000 9/1/09 127
</TABLE>
<PAGE>
SCHEDULE III-G
EXCEPTIONS TO CREDIT TENANT LEASE REPRESENTATIONS
AND WARRANTIES
<TABLE>
<CAPTION>
SCHEDULE III-G(I)
<S> <C> <C>
--------------------------------- ------------------------------- --------------------------------------
MORTGAGE LOAN
--------------------------------- ------------------------------- --------------------------------------
CVS - Hinckley, Ohio
--------------------------------- ------------------------------- --------------------------------------
CVS - Baltimore, Maryland
--------------------------------- ------------------------------- --------------------------------------
CVS - Enfield, Connecticut
--------------------------------- ------------------------------- --------------------------------------
CVS - Elberton, Georgia
--------------------------------- ------------------------------- --------------------------------------
Stop & Shop - Meriden,
Connecticut
--------------------------------- ------------------------------- --------------------------------------
SCHEDULE III-G(K)
--------------------------------- ------------------------------- --------------------------------------
MORTGAGE LOAN INSURANCE PROVIDER INSURANCE POLICY NUMBER
--------------------------------- ------------------------------- --------------------------------------
901 Hugh Wallis Road RVI America Insurance Company 01-01-20-0408
(BellSouth Building)
--------------------------------- ------------------------------- --------------------------------------
CVS-Hinckley, Ohio RVI America Insurance Company 01-01-20-0415
--------------------------------- ------------------------------- --------------------------------------
SCHEDULE III-G(L)
--------------------------------- ------------------------------- --------------------------------------
MORTGAGE LOAN GUARANTOR CUT-OFF DATE BALANCE
--------------------------------- ------------------------------- --------------------------------------
CVS - Elberton, Georgia CVS Corporation
--------------------------------- ------------------------------- --------------------------------------
CVS - Hinckley, Ohio CVS Corporation
--------------------------------- ------------------------------- --------------------------------------
CVS - Enfield, Connecticut CVS Corporation
--------------------------------- ------------------------------- --------------------------------------
CVS - Baltimore, Maryland CVS Corporation
--------------------------------- ------------------------------- --------------------------------------
Stop & Shop, Meriden, Koninklijke Ahold N.V.
Connecticut
--------------------------------- ------------------------------- --------------------------------------
SCHEDULE III-G(V)
--------------------------------- ------------------------------- --------------------------------------
MORTGAGE LOAN EXCEPTION
--------------------------------- ------------------------------- --------------------------------------
Stop & Shop, Meriden, There is an approximately
Connecticut 5,470 square foot stand-alone
dry cleaning operation on the
Mortgaged Property
--------------------------------- ------------------------------- --------------------------------------
</TABLE>
<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1 AND CLASS A-2 CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C3
CLASS [A-1] [A-2] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2000-C3
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
Initial Pass-Through Rate: ___% Initial Certificate Principal
Balance of this Certificate as of
the Closing Date:
Date of Pooling and Servicing $____________
Agreement: May 11, 2000
Cut-off Date: May 11, 2000 Class Principal Balance of all the
Class [A-1] [A-2] Certificates as of
Closing Date: May 18, 2000 the Closing Date: $____________
First Distribution Date: June 16, 2000 Aggregate unpaid principal balance
Master Servicer: of the Mortgage Pool as of the
First Union National Bank Cut-off Date, after deducting payments
of principal due on or before such date
(the "Initial Pool Balance"):
$1,305,691,486
Special Servicer:
Lennar Partners, Inc.
Trustee: Fiscal Agent:
LaSalle Bank National Association ABN AMRO Bank N.V.
Certificate No. ___ CUSIP No. _____________
1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC.,
LASALLE 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), Lennar Partners, Inc. 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. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the 4th Business Day following the 11th calendar day of each month (or, if
such 11th calendar day is not a Business Day,
2
<PAGE>
then the 5th Business Day following such 11th calendar day) (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.
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
3
<PAGE>
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.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66__% 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.
4
<PAGE>
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.
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: ________, ____
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: _______________________________
Authorized Officer
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.
7
<PAGE>
EXHIBIT A-2
FORM OF CLASS X CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C3
CLASS X COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
Pass-Through Rate: Variable Initial Certificate Notional Amount
of this Certificate as of the
Closing Date:
Date of Pooling and Servicing $____________
Agreement: May 11, 2000
Cut-off Date: May 11, 2000 Class Notional Amount of all the
Class X Certificates as of the
Closing Date:
Closing Date: May 18, 2000 $_____________
First Distribution Date: Aggregate unpaid principal balance
June 16, 2000 of the Mortgage Pool as of the
Cut-off Date, after deducting
payments of principal due on or
Master Servicer: before such date (the "Initial Pool
First Union National Bank Balance"): $1,305,691,486
Special Servicer:
Trustee:
LaSalle Bank National Association Fiscal Agent:
ABN AMRO Bank N.V.
Certificate No. ___ CUSIP No.___________________
1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC.,
LASALLE 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 MAY 18, 2000. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY
FOR THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A
"CPR" OF 0% (EXCEPT THAT THE ARD LOANS ARE ASSUMED TO BE PAID IN FULL ON
THEIR RESPECTIVE ANTICIPATED REPAYMENT DATES) (THE "PREPAYMENT ASSUMPTION"),
THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF OID PER
$_________ OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS
______% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $_______ PER $________ OF INITIAL CERTIFICATE NOTIONAL
AMOUNT, COMPUTED UNDER A CONSTANT YIELD METHOD WITH DAILY COMPOUNDING. NO
REPRESENTATION IS MADE AS TO WHETHER OR HOW THE MORTGAGE LOANS WILL PREPAY.]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT 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
2
<PAGE>
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Closing Date) in that certain beneficial ownership interest
in the Trust evidenced by all the Certificates of the same Class as this
Certificate. The Trust was created and the Certificates were issued pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among Structured Asset Securities Corporation as depositor (the "Depositor",
which term includes any successor entity under the Agreement), First Union
National Bank as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. as special servicer
(the "Special Servicer", which term includes any successor entity under the
Agreement), LaSalle 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. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the 4th Business Day following the 11th calendar day of each month (or, if
such 11th calendar day is not a Business Day, then the 5th Business Day
following such 11th calendar day) (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.
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
3
<PAGE>
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.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66__% 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
4
<PAGE>
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.
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: _________, ____
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: _______________________________
Authorized Officer
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 _____________________________ 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.
7
<PAGE>
EXHIBIT A-3
FORM OF CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C3
CLASS [B][C][D][E][F][G] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2000-C3
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
Initial Pass-Through Rate: ____% Initial Certificate Principal Balance
of this Certificate as of the Closing
Date:
Date of Pooling and Servicing $_______________
Agreement: May 11, 2000
Cut-off Date: May 11, 2000 Class Principal Balance of all the
Class [B][C][D][E][F][G] Certificates
Closing Date: May 18, 2000 as of the Closing Date: $____________
First Distribution Date: Aggregate unpaid principal balance
June 16, 2000 of the Mortgage Pool as of the
Cut-off Date, after deducting payments
Master Servicer: of principal due on or before such date
First Union National Bank (the "Initial Pool Balance"):
$1,305,691,486
Special Servicer:
Lennar Partners, Inc.
Trustee: Fiscal Agent:
LaSalle Bank National Association ABN AMRO Bank N.V.
Certificate No. ___ CUSIP No. _____________
1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC.,
LASALLE 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 MAY 18, 2000. 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
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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), Lennar Partners, Inc. 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. In
the event of any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the 4th Business Day following the 11th calendar day of each month (or, if
such 11th calendar day is not a Business Day, then the 5th Business Day
following such 11th calendar day) (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
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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.
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:
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(i) a certification to the effect that such prospective Transferee is not a Plan
and is not directly or indirectly purchasing this Certificate on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Section 406 of ERISA and Section 4975 of the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) a certification of facts
and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code. If any Transferee of this
Certificate or any interest herein does not, in connection with the subject
transfer, deliver to the Certificate Registrar a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt form the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transaction Class Exemption 95-60.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
The Trust and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier 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
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thereunder, at any time by the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent with the consent of the Holders of
Certificates entitled to at least 66__% 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.
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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] [G] Certificates
referred to in the within-mentioned Agreement.
Dated: _________, ____
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: _________________________________
Authorized Officer
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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 _____________________________ 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.
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EXHIBIT A-4
FORM OF CLASS H, CLASS J,
CLASS K, CLASS L, CLASS M, CLASS N AND CLASS P CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C3
CLASS [H] [J] [K] [L] [M] [N] [P] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2000-C3
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
Initial Pass-Through Rate: ____% Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
Date of Pooling and Servicing $____________
Agreement: May 11, 2000
Cut-off Date: May 11, 2000 Class Principal Balance of all the
Class [H][J][K][L][M][N][P]
Certificates as of the Closing Date:
Closing Date: May 18, 2000 $____________
First Distribution Date: Aggregate unpaid principal balance of
June 16, 2000 the Mortgage Pool as of the Cut-off
principal due on or before such date
Master Servicer: (the "Initial Pool Balance"):
First Union National Bank $1,305,691,486
Special Servicer:
Lennar Partners, Inc. Fiscal Agent:
ABN AMRO Bank N.V.
Trustee:
LaSalle Bank National Association
Certificate No. ___ CUSIP No. ____________
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[FOR CLASS H AND CLASS J CERTIFICATES ONLY: UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC.,
LASALLE 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.
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[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 MAY 18, 2000. 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), Lennar Partners,
Inc. 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. In the event of any conflict between any provision
of this Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the 4th Business Day following the 11th calendar day of each month (or, if
such 11th calendar day is not a Business Day, then the 5th Business Day
following such 11th calendar day) (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
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<PAGE>
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.
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 to a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act or an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or any
entity as to which all of the equity owners come within such paragraphs (each, a
"Permitted Transferee") exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise
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<PAGE>
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 and that the prospective Transferee is a Permitted Transferee
(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 and that the prospective Transferee is a Permitted Transferee. If
this Certificate constitutes a Book-Entry Certificate and any Transferee of an
interest herein does not, in connection with the subject transfer, deliver to
the Transferor the Opinion of Counsel or one of the certifications described in
the preceding sentence, then such Transferee shall be deemed to have represented
and warranted that all the certifications set forth in either EXHIBIT F-2C or
EXHIBIT F-2D attached to the Agreement are, with respect to the subject
transfer, true and correct. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class of
Certificates to which this Certificate belongs, under the Securities Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of this Certificate or any interest herein
without registration or qualification. Any Certificateholder or Certificate
Owner desiring to effect a transfer sale, pledge or other disposition of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, the underwriters, 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
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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.
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 H AND CLASS J 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
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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 66___% 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.
7
<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 [H] [J] [K] [L] [M] [N] [P] Certificates
referred to in the within-mentioned Agreement.
Dated: _______, ____
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: __________________________________
Authorized Officer
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<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 ______________________________ 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.
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<PAGE>
EXHIBIT A-5
FORM OF CLASS R-I, CLASS R-II AND CLASS R-III CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C3
CLASS [R-I][R-II][R-III] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2000-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: May 11, 2000 this Certificate in the related
Class: ___%
Cut-off Date: May 11, 2000
Closing Date: May 18, 2000 Aggregate unpaid principal
balance of the Mortgage Pool as
First Distribution Date: of the Cut-off Date, after
June 16, 2000 deducting payments of principal
due on or before such date (the
"Initial Pool Balance"):
$1,305,691,486
Master Servicer:
First Union National Bank
Special Servicer:
Lennar Partners, Inc.
Trustee: Fiscal Agent:
LaSalle Bank National Association ABN AMRO Bank N.V.
Certificate No. __
1
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THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC.,
LASALLE 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.
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
2
<PAGE>
Corporation as depositor (the "Depositor", which term includes any successor
entity under the Agreement), First Union National Bank as master servicer (the
"Master Servicer", which term includes any successor entity under the
Agreement), Lennar Partners, Inc. as special servicer (the "Special Servicer",
which term includes any successor entity under the Agreement), LaSalle 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. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
on the 4th Business Day following the 11th Calendar Day of each month (or, if
such 11th calendar day is not a Business Day, then the 5th Business Day
following such 11th calendar day) (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.
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.
3
<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 to a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act (a "QIB") or an "accredited investor" as defined in any
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or any
entity as to which all the equity owners come within such paragraphs (an "IAI")
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 and that the prospective Transferee is a QIB or an IAI (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, the
underwriters, 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.
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
4
<PAGE>
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 Tax 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 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.
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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 Tax
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 Tax 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 Tax 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, except as provided in the Agreement, 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 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 Tax 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
6
<PAGE>
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.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66% 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.
7
<PAGE>
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.
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: __________, ____
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By: ____________________________________
Authorized Officer
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 ______________________________ 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.
10
<PAGE>
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
<PAGE>
Exhibit B
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
135 S. LaSalle Street Suite 1625 LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Chicago, IL 60603 Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Administrator: Analyst:
Reporting Package Table of Contents
===================================================================================================================================
============================== ==================================================== ==========================================
<S> <C> <C>
Page(s)
Issue Id: REMIC Certificate Report Closing Date:
ASAP #: 508 Bond Interest Reconciliation First Payment Date:
Monthly Data File Name: Cash Reconciliation Summary Assumed Final Payment Date:
15 Month Historical Loan Status Summary
============================== ==========================================
15 Month Historical Payoff/Loss Summary
Historical Collateral Level Prepayment Report
Delinquent Loan Detail
Mortgage Loan Characteristics
Loan Level Detail
Specially Serviced Report
Modified Loan Detail
Realized Loss Detail
Appraisal Reduction Detail
====================================================
=================================================================
Contact Information
-----------------------------------------------------------------
Issuer:
Depositor:
Underwriter:
Master Servicer:
Rating Agency:
=================================================================
===================================================================
Information is available for this issue from the following sources
-------------------------------------------------------------------
LaSalle Web Site www.lnbabs.com
Servicer Website
LaSalle Bulletin Board (714) 282-3990
LaSalle "ASAP" Fax Back System (714) 282-5518
LaSalle Factor Line (800) 246-5761
===================================================================
===================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
WAC: Commercial Mortgage Pass-Through Certificates Next Payment:
WA Life Term: Series 2000-C3 Record Date:
WA Amort Term: ABN AMRO Acct: XX-XXXX-XX-X
Current Index:
Next Index:
=======================================================================================================
Original Opening Principal Principal Negative
Class Face Value (1) Balance Payment Adj. or Loss Amortization
CUSIP Per 1,000 Per 1,000 Per 1,000 Per 1,000 Per 1,000
-------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
0.00 0.00 0.00 0.00 0.00
=======================================================================================================
<CAPTION>
======================================================================================
Closing Interest Interest Pass-Through
Class Balance Payment Adjustment Rate (2)
CUSIP Per 1,000 Per 1,000 Per 1,000 Next Rate (3)
--------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
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
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Bond Interest Reconciliation
==============================================================================================================
Deductions Additions
-----------------------------------------------------------------------------
Accrued Add. Deferred & Prior Prepay- Other
Accrual Certificate Allocable Trust Accretion Interest Int. Short- ment Interest
------------
Class Method Days Interest PPIS Expense(1) Interest Losses falls Due Penalties Proceeds(2)
--------------------------------------------------------------------------------------------------------------
<S> <C> <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
==============================================================================================================
<CAPTION>
==============================================================================
Remaining
Distributable Interest Outstanding
Accrual Certificate Payment Interest Credit Support
------------ ---------------------
Class Method Days Interest Amount Shortfalls Original Current(3)
--------------------------------------------------------- ---------------------
<S> <C> <C> <C> <C> <C> <C> <C>
-----------------------------------
0.00 0.00 0.00
========================================================= =====================
</TABLE>
(1) Additional Trust Expenses are fees allocated directly to the bond
resulting in a deduction to accrued interest and not carried as an
outstanding shortfall.
(2) Other Interest Proceeds include default interest, PPIE and Recoveries of
Interest.
(3) Determined as follows: (A) the ending balance of all the classes less (B)
the sum of (i) the ending balance of the class and (ii) the ending balance
of all classes which are not subordinate to the class divided by (A).
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Cash Reconciliation Summary
===================================================================================================================================
---------------------------------------- ------------------------------------ -------------------------------------------
Interest Summary Servicing Fee Summary Principal Summary
---------------------------------------- ------------------------------------------ --------------------------------
<S> <C> <C> <C> <C> <C>
Current Scheduled Interest Current Servicing Fees Scheduled Principal:
Less Deferred Interest Plus Fees Advanced for PPIS Current Scheduled Principal
Plus Advance Interest Less Reduction for PPIS Advanced Scheduled Principal
-------------------------------------------
Plus Unscheduled Interest Plus Unscheduled Servicing Fees Scheduled Principal Distribution
------------------------------------------ -------------------------------------------
PPIS Reducing Scheduled Interest Total Servicing Fees Paid Unscheduled Principal:
------------------------------------------
Less Total Fees Paid To Servicer Curtailments
------------------------------------
Plus Fees Advanced for PPIS PPIS Summary Prepayments in Full
------------------------------------
Less Fee Strips Paid by Servicer Liquidation Proceeds
Less Misc. Fees & Expenses Gross PPIS Repurchase Proceeds
Less Non Recoverable Advances Reduced by PPIE Other Principal Proceeds
---------------------------------------- -------------------------------------------
Interest Due Trust Reduced by Shortfalls in Fees Unscheduled Principal Distribution
---------------------------------------- -------------------------------------------
Less Trustee Fee Reduced by Other Amounts Remittance Principal
------------------------------------------ -------------------------------------------
Less Fee Strips Paid by Trust PPIS Reducing Scheduled Interest
------------------------------------------ -------------------------------------------
Less Misc. Fees Paid by Trust PPIS Reducing Servicing Fee Servicer Wire Amount
---------------------------------------- ------------------------------------------ -------------------------------------------
Remittance Interest PPIS Due Certificate
---------------------------------------- ------------------------------------------
<CAPTION>
---------------------------------------------------------
Pool Balance Summary
---------------------------------------------------------
Balance Count
---------------------------------------------------------
<S> <C> <C>
Beginning Pool
Scheduled Principal Distribution
Unscheduled Principal Distribution
Deferred Interest
Liquidations
Repurchases
Ending Pool
---------------------------------------------------------
<CAPTION>
------------------------------------------------------------------------------------------------------
Advances
Prior Outstanding Current Period Recovered Ending Outstanding
Principal Interest Principal Interest Principal Interest Principal Interest
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Asset Backed Facts ~15 Month Historical Loan Status Summary
================ ====================================================================================
Delinquency Aging Categories
------------------------------------------------------------------------------------
Distribution Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure REO
------------------------------------------------------------------------------------
Date # Balance # Balance # Balance # Balance # Balance
================ ====================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
01/00/00
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
---------------- ------------------------------------------------------------------------------------
================ ====================================================================================
<CAPTION>
================ ========================================================
Special Event Categories (1)
--------------------------------------------------------
Distribution Modifications Specially Serviced Bankruptcy
--------------------------------------------------------
Date # Balance # Balance # Balance
================ ========================================================
<S> <C> <C> <C> <C> <C> <C>
01/00/00
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
---------------- --------------------------------------------------------
================ ========================================================
</TABLE>
(1) Note: Modification, Specially Serviced & Bankruptcy Totals are Included in
the Appropriate Delinquency Aging Category
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Asset Backed Facts ~15 Month Historical Payoff/Loss Summary
============= ====================================================================================================================
Distribution Ending Pool (1) Payoffs (2) Penalties Appraisal Reduct. (2) Liquidations (2) Realized Losses (2)
--------------------------------------------------------------------------------------------------------------------
Date # Balance # Balance # Amount # Balance # Balance # Amount
============= ====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
------------- --------------------------------------------------------------------------------------------------------------------
============= ====================================================================================================================
<CAPTION>
============= ====================================================
Distribution Remaining Term Curr Weighted Avg.
----------------------------------------------------
Date Life Amort. Coupon Remit
============= ====================================================
<S> <C> <C> <C> <C>
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
------------- ----------------------------------------------------
============= ====================================================
</TABLE>
(1) Percentage based on pool as of cutoff.
(2) Percentage based on pool as of beginning of period.
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Historical Collateral Level Prepayment Report
=============================================================================================== ==============================
Disclosure Distribution Initial Payoff Penalty Prepayment Maturity
Control # Date Balance Code Amount Amount Date Date
---------------------------------- ========================================================== ==============================
<S> <C> <C> <C> <C> <C> <C> <C>
================================== ========================================================== ==============================
Cumulative 0 0
==================================
<CAPTION>
================================== ========================================= ==================================================
Disclosure Distribution Property Remaining Term Note
--------------------------
Control # Date Type State DSCR Life Amort. Rate
---------------------------------- ========================================= ==================================================
<S> <C> <C> <C> <C> <C> <C> <C>
================================== ========================================= ==================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Delinquent Loan Detail
====================================================================================================================================
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
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Mortgage Loan Characteristics
Distribution of Principal Balances
===================================================================================================================
Current Scheduled # of Scheduled % of Weighted Average
----------------------------------
Balances Loans Balance Balance Term Coupon DSCR
===================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
===================================================================================================================
0 0 0.00%
===================================================================================================================
===================================================================================================================
Average Scheduled Balance
Maximum Scheduled Balance
Minimum Scheduled Balance
<CAPTION>
Distribution of Remaining Term (Fully Amortizing)
===================================================================================================================
Fully Amortizing # of Scheduled % of Weighted Average
----------------------------------
Mortgage Loans Loans Balance Balance Term Coupon DSCR
===================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
===================================================================================================================
0 0 0.00%
===================================================================================================================
Minimum Remaining Term
Maximum Remaining Term
<CAPTION>
Distribution of Mortgage Interest Rates
===================================================================================================================
Current Mortgage # of Scheduled % of Weighted Average
-------------------------------------
Interest Rate Loans Balance Balance Term Coupon DSCR
===================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
===================================================================================================================
0 0 0.00%
===================================================================================================================
Minimum Mortgage Interest Rate 10.0000%
Maximum Mortgage Interest Rate 10.0000%
<CAPTION>
Distribution of Remaining Term (Balloon)
=================================================================================================================
Balloon # of Scheduled % of Weighted Average
-------------------------------------
Mortgage Loans Loans Balance Balance Term Coupon DSCR
=================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
0 to 60
61 to 120
121 to 180
181 to 240
241 to 360
=================================================================================================================
0 0 0.00%
=================================================================================================================
</TABLE>
Minimum Remaining Term 0
Maximum Remaining Term 0
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date: 01/00/1900
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date: 01/00/1900
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment: 01/00/1900
Commercial Mortgage Pass-Through Certificates Next Payment: 01/00/1900
Series 2000-C3 Record Date: 01/00/1900
ABN AMRO Acct: XX-XXXX-XX-X
Mortgage Loan Characteristics
Distribution of DSCR (Current)
===================================================================================================================
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC DSCR
===================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
===================================================================================================================
0 0 0.00%
===================================================================================================================
Maximum DSCR
Minimum DSCR
<CAPTION>
Distribution of DSCR (Cutoff)
===================================================================================================================
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC DSCR
===================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
===================================================================================================================
0 0 0.00%
===================================================================================================================
Maximum DSCR 0.00
Minimum DSCR 0.00
<CAPTION>
Geographic Distribution
======================================================================================================================
# of Scheduled % of
State Loans Balance Balance WAMM WAC DSCR
======================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
======================================================================================================================
0 0.00%
======================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date: 01/00/1900
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date: 01/00/1900
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment: 01/00/1900
Commercial Mortgage Pass-Through Certificates Next Payment: 01/00/1900
Series 2000-C3 Record Date: 01/00/1900
ABN AMRO Acct: XX-XXXX-XX-X
Mortgage Loan Characteristics
Distribution of Property Types
===================================================================================================================
# of Scheduled % of
Property Types Loans Balance Balance WAMM WAC DSCR
===================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
===================================================================================================================
0 0 0.00%
===================================================================================================================
<CAPTION>
Distribution of Amortization Type
===================================================================================================================
Current Scheduled # of Scheduled % of
Balances Loans Balance Balance WAMM WAC DSCR
===================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
===================================================================================================================
===================================================================================================================
<CAPTION>
Distribution of Loan Seasoning
======================================================================================================================
# of Scheduled % of
Number of Years Loans Balance Balance WAMM WAC DSCR
======================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
======================================================================================================================
0 0 0.00%
======================================================================================================================
<CAPTION>
Distribution of Year Loans Maturing
======================================================================================================================
# of Scheduled % of
Year Loans Balance Balance WAMM WAC DSCR
======================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009 & Longer
======================================================================================================================
0 0 0.00%
======================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Loan Level Detail
====================================================================================================================================
Operating
Disclosure Property Statement Maturity
Control # Grp Type State DSCR NOI Date Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
====================================================================================================================================
W/Avg 0.00 0
====================================================================================================================================
<CAPTION>
====================================================================================================================================
Ending Spec. Loan
Disclosure Principal Note Scheduled Mod. Serv ASER Status Prepayment
----------------------------------------
Control # Balance Rate P&I Flag Flag Flag Code(1) Amount Penalty Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
====================================================================================================================================
0 0 0 0
====================================================================================================================================
</TABLE>
================================================================================
* NOI and DSCR, if available and reportable under the terms of the Pooling
and Servicing 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
================================================================================
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Specially Serviced (Part I) ~ Loan Detail
======================= ============================== ==================================== ================== ====================
Disclosure Transfer Balance Note Maturity Remaining Term Property NOI
------------------------------ --------------
Control # Date Scheduled Actual Rate Date Life Amort Type State NOI DSCR Date
======================= ============================== ==================================== ================= =====================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
======================= ============================== ==================================== ================= =====================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Specially Serviced Loan Detail (Part II) ~ Servicer Comments
====================================================================================================================================
Disclosure Resolution
Control # Strategy Comments
====================================================================================================================================
<S> <C> <C>
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Modified Loan Detail
====================================================================================================================================
Disclosure Modification Modification Modification
Control # Date Code Description
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Realized Loss Detail
============================================================================================================================
Beginning Gross Proceeds Aggregate
Distribution Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation
Period Control # Date Value Balance Proceeds Sched Principal Expenses *
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------------
Current Total 0.00 0.00 0.00
Cumulative 0.00 0.00 0.00
============================================================================================================================
<CAPTION>
==================================================================================
Net Net Proceeds
Distribution Disclosure Liquidation as a % of Realized
Period Control # Proceeds Sched. Balance Loss
----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
----------------------------------------------------------------------------------
Current Total 0.00 0.00
Cumulative 0.00 0.00
==================================================================================
</TABLE>
* Aggregate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc.
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Structured Asset Securities Corporation, Depositor Statement Date:
LaSalle Bank N.A. First Union National Bank, Master Servicer Payment Date:
LB-UBS Commercial Mortgage Trust 2000-C3 Prior Payment:
Commercial Mortgage Pass-Through Certificates Next Payment:
Series 2000-C3 Record Date:
ABN AMRO Acct: XX-XXXX-XX-X
Appraisal Reduction Detail
======================== ======================= ====================================== ================== ==== ===================
Disclosure Appraisal Scheduled Reduction Note Maturity Remaining Term Property Appraisal
---------------- -------------------
Control # Red. Date Balance Amount Rate Date Life Amort. Type State DSCR Value Date
======================== ======================= ====================================== ================== ==== ===================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
======================== ======================= ====================================== ================== ==== ===================
</TABLE>
<PAGE>
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: LB-UBS Commercial Mortgage Trust 2000-C3 Commercial Mortgage Pass
Through Certificates, Series 2000-C3 (the "Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement dated
as of May 11, 2000, 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 or Companion
Loan, as the case may be, 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 and/or Companion 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:______________________________
Schedule A
First Union National Bank
First Union Capital Markets
NC 1075
8739 Research Drive, URP-4
Charlotte, NC 28288-1075
Attn: LB-UBS Commercial Mortgage Trust 2000-C3,
Lennar Partners, Inc.
760 N.W. 107th Avenue,
Miami, FL 33172
Attn: LB-UBS Commercial Mortgage Trust 2000-C3
Structured Asset Securities Corporation
200 Vesey Street
New York, NY 10285
Attn: LB-UBS Commercial Mortgage Trust 2000-C3
Lehman Brothers Inc.
Three World Financial Center
New York, NY 10285
Attn: LB-UBS Commercial Mortgage Trust 2000-C3
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Attn: LB-UBS Commercial Mortgage Trust 2000-C3
Deutsche Bank Securities Inc.
51 West 52nd Street
New York, NY 10019
Attn: LB-UBS Commercial Mortgage Trust 2000-C3
2
<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-UBS Commercial Mortgage Trust 2000-C3
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Through Certificates, Series 2000-C3
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 May 11, 2000 (the "Pooling and Servicing Agreement"), by
and among Structured Asset Securities Corporation as depositor, the undersigned
as master servicer (the "Master Servicer"), Lennar Partners, Inc. as special
servicer, 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)
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.
<PAGE>
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:___________________________________
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-UBS Commercial Mortgage Trust 2000-C3
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Through Certificates, Series 2000-C3
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 May 11, 2000 (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)
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.
<PAGE>
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
LENNAR PARTNERS, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
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 May 9, 2000 relating to LB-UBS Commercial
Mortgage Trust 2000-C3, Commercial Mortgage Pass-Through Certificates, Series
2000-C3.
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.
<PAGE>
Revenues and Expenses shall be calculated based on financial statements,
Mortgagor tax returns and/or rent rolls, in each case to the extent appropriate
and consistent with the Servicing Standard.
With respect to any Mortgaged Property, "Reserves" shall mean, for each
fiscal year or portion thereof, all replacement reserves and/or reserves for
tenant improvements and leasing commissions escrowed during such period.
2
<PAGE>
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
___________, 20__
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
Group-LB-UBS Commercial Mortgage Trust 2000-C3
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Through Certificates, Series 2000-C3, Class __, [having an
initial aggregate Certificate Principal Balance as of May 18, 2000
(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 May 11, 2000, among
Structured Asset Securities Corporation as Depositor, First Union National Bank
as Master Servicer, Lennar Partners, Inc. 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 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
<PAGE>
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:_____________________________
2
<PAGE>
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_____________, 20__
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
Group-LB-UBS Commercial Mortgage Trust 2000-C3
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Through Certificates, Series 2000-C3, Class __, [having an
initial aggregate Certificate Principal Balance as of May 18, 2000
(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 May 11, 2000, among
Structured Asset Securities Corporation as Depositor, First Union National Bank
as Master Servicer, Lennar Partners, Inc. 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. The
Transferee understands that such Transferred Certificates may be resold,
pledged or transferred only in accordance with Section 5.02 of the Pooling
and Servicing Agreement and (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) to an "accredited investor" with 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)
pursuant to another exemption from registration under the Securities Act.
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
<PAGE>
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,
_______________________________________
(Transferor)
By: ___________________________________
Name:______________________________
Title:_____________________________
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:_____________________________
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 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.
----------
(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.
A-1-1
<PAGE>
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.)
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
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
A-1-2
<PAGE>
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.
---- -----
Yes No Will the Transferee be purchasing the
Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The 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.
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:______________________________
A-1-3
<PAGE>
ANNEX 2 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") 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).
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
A-2-1
<PAGE>
basis by the Transferee, or owned by the Transferee's Family of Investment
Companies, the securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
---- -----
Yes No Will the Transferee be purchasing the
Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
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 of Transferee
Date:__________________________________
A-2-3
<PAGE>
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
_____________, 20__
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
Group-LB-UBS Commercial Mortgage Trust 2000-C3
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Through Certificates, Series 2000-C3, Class __, [having an
initial aggregate Certificate Principal Balance as of May 18, 2000
(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 May 11, 2000, among
Structured Asset Securities Corporation as Depositor, First Union National Bank
as Master Servicer, Lennar Partners, Inc. 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 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.
<PAGE>
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.
3. 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 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.
4. 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.
2
<PAGE>
5. 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.
4. 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:___________________________
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:__________________________
4
<PAGE>
EXHIBIT F-2C
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY NON-REGISTERED CERTIFICATES
____________, 20__
[TRANSFEROR]
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Through Certificates, Series 2000-C3, Class __, [having an
initial aggregate Certificate Principal Balance as of May 18, 2000
(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 May 11, 2000, among Structured Asset
Securities Corporation as Depositor, First Union National Bank as Master
Servicer, Lennar Partners, Inc. 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.
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
<PAGE>
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.
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.
Very truly yours,
------------------------------------
(Transferee)
By: ________________________________
Name:___________________________
Title:__________________________
2
<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 $_____________________(2) 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.
___ 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)
----------
(2) 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.
A-1-1
<PAGE>
has an audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, A COPY OF WHICH IS ATTACHED
HERETO, as of a date not more than 16 months preceding the date of
sale of the Transferred Certificates in the case of a U.S. savings
and loan association, and not more than 18 months preceding such
date of sale in the case of a foreign savings and loan association
or equivalent institution.
___ BROKER-DEALER. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ INSURANCE COMPANY. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency
or instrumentality of the state or its political subdivisions,
for the benefit of its employees.
___ ERISA PLAN. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ INVESTMENT ADVISOR. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ QIB SUBSIDIARY. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ OTHER. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2
rather than this Annex 1.)__________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
3. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan 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
A-1-2
<PAGE>
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.
---- -----
Yes No Will the Transferee be purchasing the
Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The 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:___________________________
A-1-3
<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).
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
A-2-1
<PAGE>
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.
A-2-2
<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:_______________________________
A-2-3
<PAGE>
EXHIBIT F-2D
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN BOOK-ENTRY NON-REGISTERED CERTIFICATES
____________, 20__
[TRANSFEROR]
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Through Certificates, Series 2000-C3, Class __, [having an
initial aggregate Certificate Principal Balance as of May 18, 2000
(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 May 11, 2000, among Structured Asset
Securities Corporation as Depositor, First Union National Bank as Master
Servicer, Lennar Partners, Inc. 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 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
<PAGE>
and Servicing Agreement, which provisions it has carefully reviewed, and that
the Transferred Certificates will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A)
ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with respect
to any Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Transferred Certificates under the Securities Act, would render the disposition
of the Transferred Certificates a violation of Section 5 of the Securities Act
or any state securities law or would require registration or qualification of
the Transferred Certificates pursuant thereto. The Transferee will not act, nor
has it authorized nor will it authorize any person 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.
2
<PAGE>
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:__________________________
3
<PAGE>
EXHIBIT G-1
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE NON-REGISTERED CERTIFICATES)
_____________, 20__
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services
Group-LB-UBS Commercial Mortgage Trust 2000-C3
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial
Mortgage
Pass-Through Certificates, Series 2000-C3 (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 May 18, 2000 (the "Closing Date") of $__________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of May 11, 2000, among Structured Asset
Securities Corporation as depositor, First Union National Bank as master
servicer, Lennar Partners, Inc. 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
___ 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.
<PAGE>
Very truly yours,
------------------------------------
(Transferee)
By: ________________________________
Name:___________________________
Title:__________________________
2
<PAGE>
EXHIBIT G-2
FORM II OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(BOOK-ENTRY NON-REGISTERED CERTIFICATES)
[Date]
[TRANSFEROR]
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Through Certificates, Series 2000-C3, (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 May 18, 2000 (the "Closing Date") of $__________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of May 11, 2000
(the "Pooling and Servicing Agreement"), among Structured Asset Securities
Corporation, as depositor, First Union National Bank as master servicer, Lennar
Partners, Inc. as special servicer, LaSalle 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;
___ 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.
<PAGE>
Very truly yours,
------------------------------------
(Transferee)
By: ________________________________
Name:___________________________
Title:__________________________
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-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Through Certificates, Series 2000-C3 (the "Certificates") issued
pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of May 11, 2000, among Structured Asset
Securities Corporation as Depositor, First Union National Bank as
Master Servicer, Lennar Partners, Inc. 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 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.
<PAGE>
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. [CHECK THE STATEMENT THAT APPLIES]
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).................................|_|
The Purchaser is not a United States person. However, the
Purchaser:
(a) conducts a trade or business within the United States and, for
purposes of Treasury Regulation Section 1.860G-3(a)(3), is
subject to tax under Section 882 of the Code;
(b) understands that, for purposes of Treasury Regulation Section
1.860E-1(c)(4)(ii), as a holder of a Class R-I, Class R-II or
Class R-III Certificate for United States federal income tax
purposes, it may incur tax liabilities in excess of any cash
flows generated by suh Class R-I, Class R-II or Class R-III
Certificate;
(c) intends to pay the taxes associated with holding a Class R-I,
Class R-II or Class R-III Certificate; and
(d) is not classified as a partnership under the Code (or, if so
classified, all of its beneficial owners either satisfy
clauses (a), (b) and (c) of this sentence or 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).
2
<PAGE>
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.
11. The Purchaser consents to the designation of the Trustee as
the agent of the Tax Matters Person of [REMIC I][REMIC II][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.
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
___________, ____.
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 ________, ____.
_____________________________________
Notary Public
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-UBS Commercial Mortgage Trust 2000-C3
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial
Mortgage
Pass-Through Certificates, Series 2000-C3 (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 May 11, 2000 (the "Pooling
and Servicing Agreement"), among Structured Asset Securities Corporation, as
depositor, First Union National Bank as master servicer, Lennar Partners, Inc.
as special servicer, LaSalle 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,
------------------------------------
(Transferee)
By: ________________________________
Name:___________________________
Title:__________________________
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
Fitch IBCA, Inc.
One State Street Plaza,
New York, New York 10004
Attention: Commercial Mortgage Surveillance Department
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling and
Servicing Agreement, dated as of May 11, 2000 and relating to LB-UBS Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2000-C3
(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:
FITCH IBCA, INC.
By:________________________________
Name:
Title:
Date:
2
<PAGE>
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
[FISCAL AGENT]
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Through Certificates, Series 2000-C3
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement, dated as
of May 11, 2000, relating to LB-UBS Commercial Mortgage Trust 2000-C3,
Commercial Mortgage Pass-Through Certificates, Series 2000-C3 (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-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage Pass-Through
Certificates, Series 2000-C3 (referred to as the "Secured Party" for purposes of
this financing statement only), under that certain Pooling and Servicing
Agreement, dated as of May 11, 2000 (the "Pooling and Servicing Agreement"),
among the Debtor as depositor, the Secured Party as trustee, First Union
National Bank as master servicer (the "Master Servicer"), Lennar Partners, Inc.
as special servicer (the "Special Servicer"), and ABN AMRO Bank N.V. as fiscal
agent relating to the issuance of the Debtor's LB-UBS Commercial Mortgage Trust
2000-C3, Commercial Mortgage Pass-Through Certificates, Series 2000-C3.
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 listed on the Mortgage Loan Schedule
attached hereto as Exhibit A (the "Mortgage Loans");
(2) the note or other evidence of indebtedness of the related
borrower under each Mortgage Loan (the "Mortgage Note"), the related mortgage,
deed of trust or other similar instrument securing such Mortgage Note (the
"Mortgage") and each other legal, credit and servicing document related to such
Mortgage Loan (collectively with the related Mortgage Note and Mortgage, the
"Mortgage Loan Documents");
(3) (a) the Custodial 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;
(6) any and all general intangibles (as defined in the Uniform
Commercial Code) consisting of, arising from or relating to any of the
foregoing; and
(7) any and all income, payments, proceeds and products of any of
the foregoing.
3
<PAGE>
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 2000-C3 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 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.
4
<PAGE>
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE IN
EFFECT OR BEING NEGOTIATED AS OF THE CLOSING DATE
Laureate Realty Services, Inc.
Legg Mason Realty Services, Inc.
Bloomfield Servicing Company, L.L.C.
Northland/Marquette Capital Group, Inc.
L.J. Melody & Company
Collateral Mortgage, LTD.
<PAGE>
EXHIBIT L
FORM OF CMSA LOAN PERIODIC UPDATE FILE REPORT
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
------------------------------------------------------------------------------------------------------------------------------------
CMSA "LOAN PERIODIC" UPDATE FILE
------------------------------------------------------------------------------------------------------------------------------------
(DATA RECORD LAYOUT)
------------------------------------------------------------------------------------------------------------------------------------
CROSS REFERENCED AS "L"
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
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)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
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 Servicer Loan Number Assigned
To Each Collateral Item In A Pool
------------------------------------------------------------------------------------------------------------------------------------
Prospectus Loan 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 Scheduled Balance 6 Numeric 100000.00 Outstanding Sched Prin Bal at
Beginning of current period that is
part of the trust
------------------------------------------------------------------------------------------------------------------------------------
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Sched Prin Bal at End
of current period that is part of
the trust
------------------------------------------------------------------------------------------------------------------------------------
Paid To Date 8 AN YYYYMMDD Date loan is paid through. One
frequency < the date the loan is due
for next payment
------------------------------------------------------------------------------------------------------------------------------------
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 Rate
------------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
------------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
------------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
------------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
------------------------------------------------------------------------------------------------------------------------------------
Net Rate 18 Numeric 0.0947 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
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due
For The Current Period that goes to
the trust
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For
The Current Period that goes to the
trust
------------------------------------------------------------------------------------------------------------------------------------
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal & Interest
Payment Due For Current Period for
the trust
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
------------------------------------------------------------------------------------------------------------------------------------
CMSA "LOAN PERIODIC" UPDATE FILE
------------------------------------------------------------------------------------------------------------------------------------
(DATA RECORD LAYOUT)
------------------------------------------------------------------------------------------------------------------------------------
CROSS REFERENCED AS "L"
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
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 Interest Shortfall or Excess as
calculated by Servicer per the Trust
documents
------------------------------------------------------------------------------------------------------------------------------------
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes
Legend
------------------------------------------------------------------------------------------------------------------------------------
Most Recent ASER Amount 33 Numeric 1000.00 Appraisal Subordinated Entitlement
Reduction - The difference between
a full advance and the reduced
advance is the ASER or as defined in
the Trust documents
------------------------------------------------------------------------------------------------------------------------------------
Blank 34 AN Blank Left blank on purpose. (Note: was
previously Most Recent ASER Date.
Field not considered applicable to
ASER.)
------------------------------------------------------------------------------------------------------------------------------------
Cumulative ASER Amount 35 Numeric 1000.00 Cumulative Appraisal Subordinated
Entitlement Reduction
------------------------------------------------------------------------------------------------------------------------------------
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 P27 - If Multiple properties have
the same date then print that date
otherwise leave empty
------------------------------------------------------------------------------------------------------------------------------------
REO Date 43 AN YYYYMMDD P28 - If Multiple properties have
the same date then print that date
otherwise leave empty
------------------------------------------------------------------------------------------------------------------------------------
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 Trust per the
Trust Documents
------------------------------------------------------------------------------------------------------------------------------------
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n
To Be Netted from the Trust per the
Trust Documents
------------------------------------------------------------------------------------------------------------------------------------
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net
Liquidation Proceeds Received (as
defined in Trust documents)
------------------------------------------------------------------------------------------------------------------------------------
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 P54 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Operating Expenses 53 Numeric 1000.00 P55 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year NOI 54 Numeric 1000.00 P56 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Debt Svc Amount 55 Numeric 1000.00 P57 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
------------------------------------------------------------------------------------------------------------------------------------
CMSA "LOAN PERIODIC" UPDATE FILE
------------------------------------------------------------------------------------------------------------------------------------
(DATA RECORD LAYOUT)
------------------------------------------------------------------------------------------------------------------------------------
CROSS REFERENCED AS "L"
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 P58 - If Multiple properties
populate using the "DSCR Indicator
Legend" rule. Preceding Fiscal Yr
Debt Svc Cvrge Ratio using NOI
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85 P59 - If Multiple properties, Use
weighted average by using the
calculation [Current Allocated %
(Prop) * Occupancy (Oper)] for each
Property, if missing any then leave
empty
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Financial As of Date 58 AN YYYYMMDD P53 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Revenue 59 Numeric 1000.00 P61 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Operating Expenses 60 Numeric 1000.00 P62 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year NOI 61 Numeric 1000.00 P63 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Debt Service Amount 62 Numeric 1000.00 P64 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year DSCR (NOI) 63 Numeric 2.55 P65 - If Multiple properties
populate using the "DSCR Indicator
Legend" rule. Second Preceding
Fiscal Year Debt Service Coverage
Ratio using NOI
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Physical Occupancy 64 Numeric 0.85 P66 - If Multiple properties, Use
weighted average by using the
calculation [Current Allocated %
(Prop) * Occupancy (Oper)] for each
Property, if missing any then leave
empty
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Financial As of Date 65 AN YYYYMMDD P60 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Revenue 66 Numeric 1000.00 P68 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Operating Expenses 67 Numeric 1000.00 P69 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Most Recent NOI 68 Numeric 1000.00 P70 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Debt Service Amount 69 Numeric 1000.00 P71 - If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR (NOI) 70 Numeric 2.55 P72 - If Multiple properties
populate using the "DSCR Indicator
Legend" rule. Most Recent Debt
Service Coverage Ratio using NOI
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Physical Occupancy 71 Numeric 0.85 P29 - If Multiple properties, Use
weighted average by using the
calculation [Current Allocated %
(Prop) * Occupancy (Oper)] for each
Property, if missing any then leave
empty
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 3
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
------------------------------------------------------------------------------------------------------------------------------------
CMSA "LOAN PERIODIC" UPDATE FILE
------------------------------------------------------------------------------------------------------------------------------------
(DATA RECORD LAYOUT)
------------------------------------------------------------------------------------------------------------------------------------
CROSS REFERENCED AS "L"
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial As of Start Date 72 AN YYYYMMDD P73 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial As of End Date 73 AN YYYYMMDD P74 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Date 74 AN YYYYMMDD P24 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Value 75 Numeric 100000.00 P25 - If Multiple properties then
sum the value, if missing any then
leave empty
------------------------------------------------------------------------------------------------------------------------------------
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Special Servicer Transfer Date 77 AN YYYYMMDD Date Transferred To The Special
Servicer
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Master Servicer Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer
or Primary Servicer
------------------------------------------------------------------------------------------------------------------------------------
Date Asset Expected to Be Resolved or Foreclosed 79 AN YYYYMMDD P26 - If Multiple properties then
rint the latest date from the
affiliated properties. If in
Foreclosure - Expected Date of
Foreclosure and if REO - Expected
Sale Date.
------------------------------------------------------------------------------------------------------------------------------------
Blank 80 AN Blank Left blank on purpose. (Note: was
previously Year Renovated. Use the
Property File field 15 instead)
------------------------------------------------------------------------------------------------------------------------------------
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment
Date. Date will be the same as
setup file unless the loan is
modified and a new date assigned
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial Indicator 82 AN T or Y P75 - T = Trailing 12 months Y =
Year to Date, Check Start & End Date
Applies to field L66 to L73. If
Multiple properties and all the same
then print the value, if missing any
or if the values are not the same,
then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Last Setup Change Date 83 AN YYYYMMDD S82 - Distribution Date that
information changed last in the
setup file by loan
------------------------------------------------------------------------------------------------------------------------------------
Last Loan Contribution Date 84 AN YYYYMMDD Date the loan was contributed
------------------------------------------------------------------------------------------------------------------------------------
Last Property Contribution Date 85 AN YYYYMMDD P67 - Date the latest property or
properties were contributed. For
Multiple properties print the latest
date from the affiliated properties
------------------------------------------------------------------------------------------------------------------------------------
Number of Properties 86 Numeric 13.00 S54 - The Number of Properties
Underlying the Mortgage Loan
------------------------------------------------------------------------------------------------------------------------------------
Preceding Year DSCR Indicator 87 AN Text Flag used to explain how the DSCR
was calculated when there are
multiple properties. See DSCR
Indicator Legend.
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Year DSCR Indicator 88 AN Text Flag used to explain how the DSCR
was calculated when there are
multiple properties. See DSCR
Indicator Legend.
------------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR Indicator 89 AN Text Flag used to explain how the DSCR
was calculated when there are
multiple properties. See DSCR
Indicator Legend.
------------------------------------------------------------------------------------------------------------------------------------
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow
was calculated should be the same
for each financial period. See
NOI/NCF Indicator Legend. P84 - If
Multiple Properties and all the same
then print value, if missing any or
if the values are not the same, then
leave empty.
------------------------------------------------------------------------------------------------------------------------------------
Date of Assumption 91 AN YYYYMMDD Date the loan last assumed by a new
borrower- empty if never assumed
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 4
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
------------------------------------------------------------------------------------------------------------------------------------
CMSA "LOAN PERIODIC" UPDATE FILE
------------------------------------------------------------------------------------------------------------------------------------
(DATA RECORD LAYOUT)
------------------------------------------------------------------------------------------------------------------------------------
CROSS REFERENCED AS "L"
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year NCF 92 Numeric 1000.00 P78 - Preceding Fiscal Year Net Cash
Flow related to Financial As of Date
L58. If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NCF) 93 Numeric 2.55 P79 - Preceding Fiscal Yr Debt
Service Coverage Ratio using NCF
related to Financial As of Date L58.
If Multiple properties populate
using the "DSCR Indicator Legend"
rule.
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year NCF 94 Numeric 1000.00 P80 - Second Preceding Fiscal Year
Net Cash Flow related to Financial
As of Date L65. If Multiple
properties then sum the value, if
missing any then populate using the
"DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year DSCR (NCF) 95 Numeric 2.55 P81 - Second Preceding Fiscal Year
Debt Service Coverage Ratio using
Net Cash Flow related to Financial
As of Date L65. If Multiple
properties populate using the "DSCR
Indicator Legend" rule.
------------------------------------------------------------------------------------------------------------------------------------
Most Recent NCF 96 Numeric 1000.00 P82 - Most Recent Net Cash Flow
related to Financial As of Ending
Date L73. If Multiple properties
then sum the value, if missing any
then populate using the "DSCR
Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR (NCF) 97 Numeric 1000.00 P83 - Most Recent Debt Service
Coverage Ratio using Net Cash Flow
related to Financial As of Ending
Date L73. If Multiple properties
populate using the "DSCR Indicator
Legend" rule.
------------------------------------------------------------------------------------------------------------------------------------
Defeasance Status 98 AN Text See Defeasance Status Legend
------------------------------------------------------------------------------------------------------------------------------------
ARA Amount 99 Numeric 1000.00 Appraisal Reduction Amount - Excess
of the principal balance over the
defined appraisal % or as defined
in the trust documents
------------------------------------------------------------------------------------------------------------------------------------
ARA Date 100 AN YYYYMMDD Date of appraisal used to calculate
ARA
------------------------------------------------------------------------------------------------------------------------------------
Credit Tenant Lease 101 AN Y S87 - Y=Yes, N=No
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 5
<PAGE>
--------------------------------------------------------------------------------
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
--------------------------------------------------------------------------------
CMSA "LOAN PERIODIC" UPDATE FILE
--------------------------------------------------------------------------------
(DATA RECORD LAYOUT)
--------------------------------------------------------------------------------
CROSS REFERENCED AS "L"
--------------------------------------------------------------------------------
<TABLE>
<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
--------------------------------------------------------------------------------
11 Full Payoff
--------------------------------------------------------------------------------
12 Reps and Warranties
--------------------------------------------------------------------------------
13 Other or TBD
--------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
LIQUIDATION/PREPAYMENT CODE
--------------------------------------------------------------------------------
LEGEND
--------------------------------------------------------------------------------
<S> <C>
1 Partial Liq'n (Curtailment)
--------------------------------------------------------------------------------
2 Payoff Prior To Maturity
--------------------------------------------------------------------------------
3 Disposition
--------------------------------------------------------------------------------
4 Repurchase/ Substitution
--------------------------------------------------------------------------------
5 Full Payoff At Maturity
--------------------------------------------------------------------------------
6 DPO
--------------------------------------------------------------------------------
7 Liquidation
--------------------------------------------------------------------------------
8 Payoff w/ penalty
--------------------------------------------------------------------------------
9 Payoff w/ yield Maintenance
--------------------------------------------------------------------------------
10 Curtailment w/ Penalty
--------------------------------------------------------------------------------
11 Curtailment w/ Yield Maintenance
--------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
DEFEASANCE STATUS
--------------------------------------------------------------------------------
LEGEND
--------------------------------------------------------------------------------
<S> <C>
P Partial Defeasance
--------------------------------------------------------------------------------
F Full Defeasance
--------------------------------------------------------------------------------
N No Defeasance Occurred
--------------------------------------------------------------------------------
X Defeasance not Allowable
--------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
STATUS OF MORTGAGE LOAN
LEGEND
--------------------------------------------------------------------------------
<S> <C>
A Payment Not Received But Still In Grace Period
--------------------------------------------------------------------------------
B Late Payment But Less Than 30 days Delinquent
--------------------------------------------------------------------------------
0 Current
--------------------------------------------------------------------------------
1 30-59 Days Delinquent
--------------------------------------------------------------------------------
2 60-89 Days Delinquent
--------------------------------------------------------------------------------
3 90+ Days Delinquent
--------------------------------------------------------------------------------
4 Assumed Scheduled Payment (Performing Matured Balloon)
--------------------------------------------------------------------------------
7 Foreclosure
--------------------------------------------------------------------------------
9 REO
--------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
MODIFICATION CODE
--------------------------------------------------------------------------------
LEGEND
--------------------------------------------------------------------------------
<S> <C>
1 Maturity Date Extension
--------------------------------------------------------------------------------
2 Amortization Change
--------------------------------------------------------------------------------
3 Principal Write-Off
--------------------------------------------------------------------------------
4 Combination
--------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
DSCR INDICATOR
--------------------------------------------------------------------------------
LEGEND
--------------------------------------------------------------------------------
<S> <C>
P Partial - Not all properties received financials,
servicer to leave empty
--------------------------------------------------------------------------------
A Average - Not all properties received financials,
servicer allocates Debt Service only to properties where
financials are received.
--------------------------------------------------------------------------------
F Full - All Statements Collected for all properties
--------------------------------------------------------------------------------
W Worst Case - Not all properties received financials,
servicer allocates 100% of Debt Service to all
properties where financials are received.
--------------------------------------------------------------------------------
N None Collected - no financials were received
--------------------------------------------------------------------------------
C Consolidated - All properties reported on one "rolled
up" financial from the borrower
--------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
NOI/NCF INDICATOR
--------------------------------------------------------------------------------
LEGEND
--------------------------------------------------------------------------------
<S> <C>
CMSA Calculated using CMSA standard
--------------------------------------------------------------------------------
PSA Calculated using a definition given in the PSA
--------------------------------------------------------------------------------
U/W Calculated using the underwriting method
--------------------------------------------------------------------------------
</TABLE>
Page 6
<PAGE>
EXHIBIT M
FORM OF CMSA PROPERTY FILE REPORT
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
------------------------------------------------------------------------------------------------------------------------------------
CMSA "PROPERTY" FILE
------------------------------------------------------------------------------------------------------------------------------------
(DATA RECORD LAYOUT )
------------------------------------------------------------------------------------------------------------------------------------
CROSS REFERENCED AS "P"
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
------------------------------------------------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
------------------------------------------------------------------------------------------------------------------------------------
Character Set ASCII
------------------------------------------------------------------------------------------------------------------------------------
Field Delineation Comma
------------------------------------------------------------------------------------------------------------------------------------
Density (Bytes-Per-Inch) 1600 or 6250
------------------------------------------------------------------------------------------------------------------------------------
Magnetic Tape Label None (unlabeled)
------------------------------------------------------------------------------------------------------------------------------------
Magnetic Tape Blocking Factor 10285 (17 records per block)
------------------------------------------------------------------------------------------------------------------------------------
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch);
Blocking Factor; Record Length
------------------------------------------------------------------------------------------------------------------------------------
Return Address Label Required for return of physical media (magnetic tape or diskette)
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic S1, L1
------------------------------------------------------------------------------------------------------------------------------------
Loan ID 2 AN XXX9701A Unique Servicer Loan Number Assigned To Each
Collateral Item In A Pool S3, L3
------------------------------------------------------------------------------------------------------------------------------------
Prospectus Loan ID 3 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus S4, L4
------------------------------------------------------------------------------------------------------------------------------------
Property ID 4 AN 1001-001 Should contain Prospectus ID and property
identifier, e.g., 1001-001, 1000-002
------------------------------------------------------------------------------------------------------------------------------------
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders L5
------------------------------------------------------------------------------------------------------------------------------------
Cross-Collateralized Loan Grouping 6 AN Text All Loans With The Same Value Are Crossed,
For example : "X02-1" would be populated in
this field for all related loans, "X02-2"
would be populated for the next group of
related loans. S75
------------------------------------------------------------------------------------------------------------------------------------
Property Name 7 AN Text S55
------------------------------------------------------------------------------------------------------------------------------------
Property Address 8 AN Text S56
------------------------------------------------------------------------------------------------------------------------------------
Property City 9 AN Text S57
------------------------------------------------------------------------------------------------------------------------------------
Property State 10 AN FL S58
------------------------------------------------------------------------------------------------------------------------------------
Property Zip Code 11 AN 30303 S59
------------------------------------------------------------------------------------------------------------------------------------
Property County 12 AN Text S60
------------------------------------------------------------------------------------------------------------------------------------
Property Type Code 13 AN MF S61
------------------------------------------------------------------------------------------------------------------------------------
Year Built 14 AN YYYY S64
------------------------------------------------------------------------------------------------------------------------------------
Year Last Renovated 15 AN YYYY
------------------------------------------------------------------------------------------------------------------------------------
Net Square Feet At Contribution 16 Numeric 25000 RT, IN, WH, OF, MU, OT S62
------------------------------------------------------------------------------------------------------------------------------------
# Of Units/Beds/Rooms At Contribution 17 Numeric 75 MF, MH, LO,MU, HC, SS S63
------------------------------------------------------------------------------------------------------------------------------------
Property Status 18 AN 1 1=FCL, 2=REO, 3=Defeased, 4=Partial Release,
5=Released, 6=Same as at Contribution
------------------------------------------------------------------------------------------------------------------------------------
Allocated Percentage of Loan at
Contribution 19 Numeric 0.75 Issuer to allocate loan % attributable to
property for multi-property loans
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
------------------------------------------------------------------------------------------------------------------------------------
CMSA "PROPERTY" FILE
------------------------------------------------------------------------------------------------------------------------------------
(DATA RECORD LAYOUT )
------------------------------------------------------------------------------------------------------------------------------------
CROSS REFERENCED AS "P"
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT LOAN FIELD
------------------------------------------------------------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
Current Allocated Percentage 20 Numeric 0.75 Maintained by servicer. If not supplied in
by Issuer or Underwriter, use Underwritting
NOI or NCF to calculate L7
------------------------------------------------------------------------------------------------------------------------------------
Current Allocated Ending Scheduled Loan
Amount 21 Numeric 5900900.00 Calculation based on Current Allocated
Percentage and Current Ending Scheduled
Principal Balance (L7) for associated loan. S74
------------------------------------------------------------------------------------------------------------------------------------
Ground Lease (Y/S/N) 22 AN N Either Y=Yes, S=Subordinate, N=No ground
lease S77
------------------------------------------------------------------------------------------------------------------------------------
Total Reserve Balance 23 Numeric 25000.00 For Maintenance, Repairs, & Environmental.
(Excludes Tax & Insurance Escrows). An
amount should be printed if the value in
Setup File field 77 is "Y" L74
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Date 24 AN YYYYMMDD L75
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Value 25 Numeric 1000000.00 L79
------------------------------------------------------------------------------------------------------------------------------------
Date Asset Expected to Be Resolved or
Foreclosed 26 AN YYYYMMDD Could be different dates for different
properties. If in Foreclosure - Expected Date
of Foreclosure and if REO - Expected Sale
Date. L42
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure Date 27 AN YYYYMMDD L43
------------------------------------------------------------------------------------------------------------------------------------
REO Date 28 AN YYYYMMDD L71
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Physical Occupancy 29 Numeric 0.75
------------------------------------------------------------------------------------------------------------------------------------
Occupancy As of Date 30 AN YYYYMMDD Typically should be the effective date of the
Rent Roll
------------------------------------------------------------------------------------------------------------------------------------
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed every 12
months
------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 1-12 months 32 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU,
OT S62
------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 13-24 months 33 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU,
OT S62
------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 25-36 months 34 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU,
OT S62
------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 37-48 months 35 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU,
OT S62
------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 49-60 months 36 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU,
OT S62
------------------------------------------------------------------------------------------------------------------------------------
Largest Tenant 37 AN Text For Office, WH, Retail, Industrial, Other or
Mixed Use, as applicable
------------------------------------------------------------------------------------------------------------------------------------
Square Feet of Largest Tenant 38 Numeric 15000
------------------------------------------------------------------------------------------------------------------------------------
2nd Largest Tenant 39 AN Text For Office, WH, Retail, Industrial, Other or
Mixed Use, as applicable
------------------------------------------------------------------------------------------------------------------------------------
Square Feet of 2nd Largest Tenant 40 Numeric 15000
------------------------------------------------------------------------------------------------------------------------------------
3rd Largest Tenant 41 AN Text For Office, WH, Retail, Industrial, Other or
Mixed Use, as applicable
------------------------------------------------------------------------------------------------------------------------------------
Square Feet of 3rd Largest Tenant 42 Numeric 15000
------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year End Month 43 Numeric MM Needed to indicate month ending for
borrower's Fiscal Year. For example: "12"
------------------------------------------------------------------------------------------------------------------------------------
Contribution Financials As Of Date 44 AN YYYYMMDD S72
------------------------------------------------------------------------------------------------------------------------------------
Revenue At Contribution 45 Numeric 1000000.00 Should match the prospectus if available. At
the Property Level S70
------------------------------------------------------------------------------------------------------------------------------------
Operating Expenses At Contribution 46 Numeric 1000000.00 Should match the prospectus if available. At
the Property Level S71
------------------------------------------------------------------------------------------------------------------------------------
NOI At Contribution 47 Numeric 1000000.00 Should match the prospectus if available. At
the Property Level S65
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
------------------------------------------------------------------------------------------------------------------------------------
CMSA "PROPERTY" FILE
------------------------------------------------------------------------------------------------------------------------------------
(DATA RECORD LAYOUT )
------------------------------------------------------------------------------------------------------------------------------------
CROSS REFERENCED AS "P"
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT LOAN FIELD
------------------------------------------------------------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
DSCR (NOI) At Contribution 48 Numeric 1.5 Should match the prospectus if available. S66
------------------------------------------------------------------------------------------------------------------------------------
Appraisal Value At Contribution 49 Numeric 1000000.00 S67
------------------------------------------------------------------------------------------------------------------------------------
Appraisal Date At Contribution 50 AN YYYYMMDD S68
------------------------------------------------------------------------------------------------------------------------------------
Physical Occupancy At Contribution 51 Numeric 0.9 S69
------------------------------------------------------------------------------------------------------------------------------------
Date of Last Inspection 52 AN YYYYMMDD Date of last physical site inspection
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Financial As of Date 53 AN YYYYMMDD L58
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Revenue 54 Numeric 1000000.00 L52
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Operating Expenses 55 Numeric 1000000.00 L53
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year NOI 56 Numeric 1000000.00 L54
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Yr Debt Service Amount 57 Numeric 1000000.00 Calculate using P20(percentage) to get the
allocated amount for each property L55
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.3 Uses the property NOI and the allocated debt
service amount L56
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.9 L57
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Financial As of Date 60 AN YYYYMMDD L65
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Revenue 61 Numeric 1000000.00 L59
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Operating Expenses 62 Numeric 1000000.00 L60
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year NOI 63 Numeric 1000000.00 L61
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Debt Service Amount 64 Numeric 1000000.00 Calculate using P20(percentage) to get the
allocated amount for each property L62
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year DSCR (NOI) 65 Numeric 1.3 Uses the property NOI and the allocated debt
service amount L63
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Physical Occupancy 66 Numeric 0.9 L64
------------------------------------------------------------------------------------------------------------------------------------
Property Contribution Date 67 AN YYYYMMDD Date Property was contributed L85
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Revenue 68 Numeric 1000000.00 Most Recent Revenue L66
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Operating Expenses 69 Numeric 1000000.00 Most Recent Operating Expenses L67
------------------------------------------------------------------------------------------------------------------------------------
Most Recent NOI 70 Numeric 1000000.00 Most Recent Net Operating Income L68
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Debt Service Amount 71 Numeric 1000000.00 Calculate using P20(percentage) to get the
allocated amount for each property L69
------------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR (NOI) 72 Numeric 2.55 Uses the property NOI and the allocated debt
service amount L70
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial As of Start Date 73 AN YYYYMMDD Start date used to calculate Most Recent
information either YTD or trailing 12 months L72
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial As of End Date 74 AN YYYYMMDD End date used to calculate Most Recent
information either YTD or trailing 12 months L73
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial Indicator 75 AN T or Y T = Trailing 12 months Y = Year to Date L82
------------------------------------------------------------------------------------------------------------------------------------
NCF At Contribution 76 Numeric 1000000.00 Net Cash Flow At Contribution. Should match
the prospectus if available. S83
------------------------------------------------------------------------------------------------------------------------------------
DSCR (NCF) At Contribution 77 Numeric 1.5 DSCR At Contribution using NCF to calculate.
Should match the prospectus if available. S84
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year NCF 78 Numeric 1000000.00 Preceding Fiscal Year Net Cash Flow related
to Financial As of Date P53. L92
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 3
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
------------------------------------------------------------------------------------------------------------------------------------
CMSA "PROPERTY" FILE
------------------------------------------------------------------------------------------------------------------------------------
(DATA RECORD LAYOUT )
------------------------------------------------------------------------------------------------------------------------------------
CROSS REFERENCED AS "P"
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NCF) 79 Numeric 2.55 Preceding Fiscal Yr Debt Service Coverage
Ratio using NCF related to Financial As of
Date P53. L93
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY NCF 80 Numeric 1000000.00 Second Preceding Fiscal Year Net Cash Flow
related to Financial As of Date P60. L94
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY DSCR (NCF) 81 Numeric 2.55 Second Preceding Fiscal Year Debt Service
Coverage Ratio using Net Cash Flow related to
Financial As of Date P60. L95
------------------------------------------------------------------------------------------------------------------------------------
Most Recent NCF 82 Numeric 1000000.00 Most Recent Net Cash Flow related to
Financial As of Date P74. L96
------------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR (NCF) 83 Numeric 2.55 Most Recent Debt Service Coverage Ratio using
Net Cash Flow related to Financial As of Date
P74. L97
------------------------------------------------------------------------------------------------------------------------------------
NOI/NCF Indicator 84 AN Text Indicates how NOI or Net Cash Flow was
calculated should be the same for each
financial period. See NOI/NCF Indicator
Legend. L90
------------------------------------------------------------------------------------------------------------------------------------
Deferred Maintenance Flag 85 AN N Either Y=Yes or N= No, Deferred Maintenance
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<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
--------------------------------------------------------------------------------
SE Securities
--------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
NOI/NCF INDICATOR
--------------------------------------------------------------------------------
LEGEND
--------------------------------------------------------------------------------
<S> <C>
CMSA Calculated using CMSA standard
--------------------------------------------------------------------------------
PSA Calculated using a definition given in the PSA
--------------------------------------------------------------------------------
U/W Calculated using the underwriting method
--------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT N
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
<PAGE>
Exhibit N
Form of Comparative Financial Status Report
<TABLE>
<CAPTION>
=================================================================================================================
S4 S57 S58 P7 P8 P57 S72 S69 S70 S83 S84
-----------------------------------------------------------------------------------------------------------------
Original Underwriting
Information
-----------------------------------------------------------------------------------------------------------------
Basis Year
-----------------------------------------------------------------------------------------------------------------
Last Current
Property Allocated Paid Allocated Financial
Prospectus Inspect Loan Thru Debt Info as % Total $ (1)
ID City State Date Amount Date Service of 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
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
=================================================================================================================
<CAPTION>
===================================================================================================================================
S4 P65 P64 P59 P94 P95 P58 P57 P52 P92 P93 P72 P73 P66
-----------------------------------------------------------------------------------------------------------------------------------
2nd Preceding Annual Operating Preceding Annual Operating Most Recent Financial
Information Information Information
-----------------------------------------------------------------------------------------------------------------------------------
as of _______ Normalized as of _______ Normalized *normalized or actual
-----------------------------------------------------------------------------------------------------------------------------------
Financial Financial FS
Prospectus Info as % Total $ (1) Info as % Total $ (1) Start FS End % Total
ID of Date Occ Revenue NCF DSCR of Date Occ Revenue NCF DSCR Date Date Occ Revenue
-----------------------------------------------------------------------------------------------------------------------------------
yy/mm yy/mm yy/mm yy/mm
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <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 WA $ $ WA WA $
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
<CAPTION>
==================================================
S4 P96 P97 (2)
--------------------------------------------------
Net Change
--------------------------------------------------
Preceding & Basis
--------------------------------------------------
%
Prospectus $ (1) % Total (1)
ID NCF DSCR Occ Revenue DSCR
--------------------------------------------------
--------------------------------------------------
<S> <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 $ WA
--------------------------------------------------
--------------------------------------------------
==================================================
</TABLE>
(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
<PAGE>
(This page has been left blank intentionally.)
<PAGE>
EXHIBIT O
FORM OF REO STATUS REPORT
<PAGE>
Exhibit O
Form of REO Status Report
<TABLE>
<CAPTION>
==================================================================================================================================
S4 S55 S61 S57 S58 S62 or P8 P7 P37 P39 P38
----------------------------------------------------------------------------------------------------------------------------------
S63 (a) (b) (c) (d) (e)=a+b+c+d
----------------------------------------------------------------------------------------------------------------------------------
Allocated
Loan
[ILLEGIBLE] or Total Other
Short Name Sq Ft Paid Scheduled P&I Total Advances
Prospectus (When Property or Thru Loan Advances Expenses (Taxes & Total
ID Appropriate) Type City State Units Date Balance To Date To Date Escrow) Exposure
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
==================================================================================================================================
<CAPTION>
=======================================================================================================================
S4 P25 P11 P58 or P73 P93 or P97 P74 P75
-----------------------------------------------------------------------------------------------------------------------
(k) (f)=(k/j) (g)
-----------------------------------------------------------------------------------------------------------------------
Appraisal
Value BPO or Appraisal
Current using NOI Internal BPO or
Prospectus Monthly Maturity LTM NCF Valuation & Cap Value Internal
ID P&I Date Date LTM NOI/DSC Date Rate Source** Value
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
=======================================================================================================================
<CAPTION>
========================================================
S4 P35 P77
--------------------------------------------------------
(h)=(.90*g)-e
--------------------------------------------------------
Total
Loss using Appraisal
Prospectus 90% Appr. Reduction Transfer
ID or BPO (f) Realized Date
--------------------------------------------------------
<S> <C> <C> <C>
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
========================================================
</TABLE>
REO's that are more than one loan should use the Allocated Loan Amount and
prorate all advances and expenses.
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int -
Internal Value
<PAGE>
<TABLE>
<CAPTION>
==========================================================================================
S4 S55 S61 S57 S58 P[ILLEGIBLE] P79
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Short Name H[ILLEGIBLE]O Pending
Prospectus (When Property Acquisition Resolution
ID Appropriate) Type City State Date Date Comments
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
==========================================================================================
</TABLE>
REO's that are more than one loan should use the All
(1) Use the following codes; App. - Appraisal, BPO -
<PAGE>
EXHIBIT P
FORM OF SERVICER WATCH LIST REPORT
<PAGE>
Exhibit P
Form of Servicer Watch List
<TABLE>
<CAPTION>
====================================================================================================================================
S4 S55 S61 S57 S58 P7 P8 P11 P93 P97
------------------------------------------------------------------------------------------------------------------------------------
Short Name Scheduled Paid Preceding Most
Prospectus (When Property Loan Thru Maturity Fiscal Yr Recent
ID Appropriate) Type City State Balance Date Date DSCR NCF DSCR NCF Comment / Action to be taken
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
List all loans on watch list and reason sorted in descending balance order.
------------------------------------------------------------------------------------------------------------------------------------
Should not include loans that are specially serviced
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total: $
====================================================================================================================================
</TABLE>
<PAGE>
(This page has been left blank intentionally.)
<PAGE>
EXHIBIT Q
FORM OF DELINQUENT LOAN STATUS REPORT
<PAGE>
Exhibit Q
Form of Delinquent Loan Status Report
<TABLE>
<CAPTION>
==================================================================================================================================
S4 S55 S61 S57 S58 S62 or S63 P8 P7 P37 P39 P38
----------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d)
----------------------------------------------------------------------------------------------------------------------------------
Other
Short Name Paid Scheduled Total P&I Total Advances
Prospectus (When Property Sq Ft or Thru Loan Advances Expenses (Taxes &
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
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
FCL - Foreclosure
----------------------------------------------------------------------------------------------------------------------------------
LTM - Latest 12 Months either Last Normalized Annual, Trailing 12 months or normalized YTD
==================================================================================================================================
<CAPTION>
============================================================================================================
S4 P25 P10 P11 P58 or P73 P92 or P96 P93 or P97
------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d
------------------------------------------------------------------------------------------------------------
Current Current LTM
Prospectus Total Monthly Interest Maturity NCF LTM DSCR
ID Exposure P&I Rate Date Date LTM NCF (NCF)
------------------------------------------------------------------------------------------------------------
<S> <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
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
FCL - Foreclosure
------------------------------------------------------------------------------------------------------------
LTM - Latest 12 Months either Last Normalized Annual, Trailing 12 months or normalized YTD
============================================================================================================
</TABLE>
* 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>
<TABLE>
<CAPTION>
============================================================================================================================
S4 S55 S61 S57 S58 P74 P75 P35
----------------------------------------------------------------------------------------------------------------------------
(f)=[ILLEGIBLE] (g)=[ILLEGIBLE]
----------------------------------------------------------------------------------------------------------------------------
Value Appraisal Total
Short Name using NOI BPO or Loss using Appraisal
Prospectus (When Property & Cap Valuation Internal 90% Appr. Reduction
ID Appropriate) Type City State Rate Date Value or BPO (f) Realized
----------------------------------------------------------------------------------------------------------------------------
<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
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
FCL - Foreclosure
----------------------------------------------------------------------------------------------------------------------------
LTM - Latest 12 Months either Last Normalized Annual, Trailing 12 months or normalized YTD
============================================================================================================================
<CAPTION>
=================================================================================================
S4 P77 P79 P42 P82 P76
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Expected
Prospectus Transfer Resolution PCL Start PCL Sale Workout
ID Date Date Date Date Strategy Comments
-------------------------------------------------------------------------------------------------
<S> <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
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
FCL - Foreclosure
-------------------------------------------------------------------------------------------------
LTM - Latest 12 Months either Last Normalized Annual, Trailing 12 months or normalized YTD
=================================================================================================
</TABLE>
* Workout Strategy should match the CSSA Loan file using abrev
TBD - To be determined etc.). It is possible to combine the s
** App - Appraisal, BPO - Broker opinion, Int. - Internal Value
*** How to determine the cap rate is agreed upon by Underwriter
<PAGE>
EXHIBIT R
FORM OF HISTORICAL LOAN MODIFICATION REPORT
<PAGE>
Exhibit R
Form of Historical Loan Modification Report
<TABLE>
<CAPTION>
====================================================================================================================================
S4 S57 S58 P49 P48 P7* P7* P50* P50* P25* P25*
------------------------------------------------------------------------------------------------------------------------------------
Balance
Extention When Balance at the # Mths
Mod / per Docs Sent to Effective Date for
Prospectus Extension or Effect Special of Old Rate New Old New
ID City State Flag Servicer Date Servicer Rehabilitation Rate Change Rate P&I P&I
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <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:
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
<CAPTION>
============================================================================================================================
P11* P11* P47
----------------------------------------------------------------------------------------------------------------------------
(2) Est.
Future
Interest
Total # (1) Loss to
Mths for Realized Trust $
Prospectus Old New Change Loss to (Rate
ID Maturity Maturity of Mod Trust $ Reduction) COMMENT
----------------------------------------------------------------------------------------------------------------------------
<S> <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:
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
============================================================================================================================
</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>
(This page has been left blank intentionally.)
<PAGE>
EXHIBIT S
FORM OF HISTORICAL LOSS ESTIMATE REPORT
<PAGE>
Exhibit S
Form of Historical Liquidation Report
<TABLE>
<CAPTION>
====================================================================================================================================
S4 S55 S61 S57 S58 P45/P7 P75 P45 P7 P37
------------------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b) (d) (e) (f)
------------------------------------------------------------------------------------------------------------------------------------
Latest
% Appraisal Effect
Short Name Received or Date of Net Amt Total
Prospectus (When Property From Brokers Liquida- Sales Received Scheduled P&I
ID Appropriate) Type City State Liquidation Opinion tion Price from Sale Balance Advanced
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
------------------------------------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total all Loans:
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
<CAPTION>
===================================================================================================================================
S4 P39+P38
------------------------------------------------------------------------------------------------------------------------------------
(g) (h) (i)=d-(f+g+h) (k)=i-e (m) (n)=k+m (o)=n/e
-----------------------------------------------------------------------------------------------------------------------------------
Date
Date Minor
Servicing Actual Loss Minor Adj Total Loss Loss % of
Prospectus Total Fees Losses Passed Adj to Passed with Scheduled
ID Expenses Expense Net Proceeds Passed thru thru Trust thru Adjustment Balance
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
-----------------------------------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Total all Loans:
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
</TABLE>
(h) Servicing Fee Expense is the work out fee charged by the special servicer
<PAGE>
(This page has been left blank intentionally.)
<PAGE>
EXHIBIT T
FORM OF NOI ADJUSTMENT WORKSHEET
<PAGE>
Exhibit T
Form of NOI Adjustment Worksheet
<TABLE>
<S> <C> <C> <C> <C>
PROPERTY OVERVIEW
-------------
LB Control Number
---------------------------
Current Balance/Paid to Date
--------------------------------------------------------------------------------------------
Property Name
--------------------------------------------------------------------------------------------
Property Type
--------------------------------------------------------------------------------------------
Property Address, City, State
--------------------------------------------------------------------------------------------
Net Rentable Square Feet
-------------
Year Built/Year Renovated
-------------------------
Year of Operations 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)
</TABLE>
Notes and Assumptions:
================================================================================
This report should be completed by the Servicer for any "Normalization" of the
Borrower's numbers.
The "Normalized" column is used in the Operating Statement Analysis Report.
This report may vary depending on the property type and because of the way
information may vary in each borrower's statement.
Income: Comments
Expense: Comments
Capital Items: Comments
(1) Used in the Comparative Financial Status Report
<PAGE>
(This page has been left blank intentionally.)
<PAGE>
EXHIBIT U
FORM OF OPERATING STATEMENT ANALYSIS
<PAGE>
Exhibit U
Form of Operating Statement Analysis Report
<TABLE>
<S> <C> <C> <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.
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
----------------------------------------------------------------------------------------------
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
(1) Used in the Comparative Financial Status Report
<PAGE>
(This page has been left blank intentionally.)
<PAGE>
EXHIBIT V
FORM OF LOAN PAYOFF NOTIFICATION REPORT
<PAGE>
Exhibit V
Form of Loan Payoff Notification Report
<TABLE>
<CAPTION>
=========================================================================================================
S4 S55 S61 S58 P7 P8 P10 P11 P93 P97
---------------------------------------------------------------------------------------------------------
Short Name Scheduled Paid Current Preceding Most
Prospectus (When Property Loan Thru Interest Maturity Fiscal Yr Recent
ID Appropriate) Type State Balance Date Rate Date DSCR NCF DSCR NCF
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
Schedule Payments
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
Unscheduled Payments
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
Total: $
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
=========================================================================================================
<CAPTION>
====================================================
S4 Servicer Estimated Information
----------------------------------------------------
Expected Expected
Prospectus Yield Payment Distribution
ID Maintenance Date Date
----------------------------------------------------
<S> <C> <C> <C>
----------------------------------------------------
----------------------------------------------------
Schedule Payments
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
Unscheduled Payments
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
Total:
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
====================================================
</TABLE>
The Borrower has only requested the information to pay-off. This does not
indicate a definite payment.
<PAGE>
(This page has been left blank intentionally.)
<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-UBS Commercial Mortgage Trust 2000-C3
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Though Certificates, Series 2000-C3
In accordance with the provisions of the Pooling and Servicing Agreement,
dated as of May 11, 2000 (the "Pooling and Servicing Agreement"), among
Structured Asset Securities Corporation, as depositor (the "Depositor"), First
Union National Bank as master servicer, Lennar Partners, Inc. as special
servicer, LaSalle Bank National Association as trustee (the "Trustee") and ABN
AMRO Bank N.V. as fiscal agent, with respect to LB-UBS Commercial Mortgage Trust
2000-C3, Commercial Mortgage Pass-Through Certificates, Series 2000-C3 (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") 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.
<PAGE>
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.
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[BENEFICIAL HOLDER OF A CERTIFICATE]
By: ________________________________
Name:
Title:
____________________________________
By: ________________________________
Name:_______________________________
Title:______________________________
3
<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-UBS Commercial Mortgage Trust 2000-C3
Re: LB-UBS Commercial Mortgage Trust 2000-C3, Commercial Mortgage
Pass-Though Certificates, Series 2000-C3
In accordance with the provisions of the Pooling and Servicing Agreement,
dated as of May 11, 2000 (the "Pooling and Servicing Agreement"), among
Structured Asset Securities Corporation as depositor (the "Depositor"), First
Union National Bank as master servicer, Lennar Partners, Inc. as special
servicer, LaSalle Bank National Association, as trustee (the "Trustee") and ABN
AMRO Bank N.V. as fiscal agent, with respect to LB-UBS Commercial Mortgage Trust
2000-C3, Commercial Mortgage Pass-Through Certificates, Series 2000-C3 (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 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
<PAGE>
"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 HOLDER OF A CERTIFICATE]
By: ________________________________
Name:
Title:
By:_________________________________
Name:_______________________________
Title:______________________________
2
